EXECUTION COPY
EXHIBIT 10.2
LOAN AGREEMENT
DATED AS OF MARCH 30, 2004
Among
ENTERTAINMENT PROPERTIES TRUST
("EPR" and/or "BORROWER")
and
30 WEST PERSHING, LLC
("GUARANTOR")
and
RBC CAPITAL MARKETS,
as Lead Arranger and Sole Bookrunner
and
ROYAL BANK OF CANADA,
as Agent and Lender
and
THE OTHER LENDERS WHICH ARE OR MAY BECOME PARTIES TO THIS AGREEMENT
and
JPMORGAN CHASE BANK,
as Co-Arranger
TABLE OF CONTENTS
PAGE
SS.1. DEFINITIONS AND RULES OF INTERPRETATION............................1
ss.1.1 Definitions........................................................1
ss.1.2 Rules of Interpretation...........................................16
ss.1.3 Accounting Terms and Determinations...............................17
SS.2. THE LOANS.........................................................18
ss.2.1 Intentionally Deleted.............................................18
ss.2.2 Loans.............................................................18
ss.2.3 Intentionally Deleted.............................................18
ss.2.4 Intentionally Deleted.............................................18
ss.2.5 Intentionally Deleted.............................................18
ss.2.6 Interest on Loans.................................................19
ss.2.7 Requests for Loans................................................19
ss.2.8 Funds for Loans...................................................20
ss.2.9 Use of Proceeds...................................................20
ss.2.10 Intentionally Deleted.............................................21
SS.3. REPAYMENT OF THE LOANS............................................21
ss.3.1 Stated Maturity...................................................21
ss.3.2 Mandatory Prepayments.............................................21
ss.3.3 Optional Prepayments..............................................21
ss.3.4 Intentionally Deleted.............................................22
ss.3.5 Intentionally Deleted.............................................22
ss.3.6 Effect of Prepayments.............................................22
SS.4. CERTAIN GENERAL PROVISIONS........................................22
ss.4.1 Conversion Options................................................22
ss.4.2 Arrangement Fee...................................................23
ss.4.3 Intentionally Deleted.............................................23
ss.4.4 Funds for Payments................................................23
ss.4.5 Computations......................................................24
ss.4.6 Inability to Determine LIBOR......................................24
ss.4.7 Illegality........................................................24
ss.4.8 Additional Interest...............................................25
ss.4.9 Additional Costs, Etc.............................................25
ss.4.10 Capital Adequacy..................................................26
ss.4.11 Indemnity of Borrower.............................................27
ss.4.12 Default Interest; Late Charge.....................................27
ss.4.13 Certificate.......................................................27
ss.4.14 Limitation on Interest............................................27
ss.4.15 Certain Provisions Relating to Increased Costs....................28
SS.5. COLLATERAL SECURITY...............................................28
ss.5.1 Collateral........................................................28
ss.5.2 Intentionally Deleted.............................................28
ss.5.3 Release of Collateral.............................................28
SS.6. REPRESENTATIONS AND WARRANTIES....................................29
ss.6.1 Corporate, Limited Liability Company Authority, Etc...............29
ss.6.2 Governmental Approvals............................................33
ss.6.3 Title to Properties...............................................33
ss.6.4 Financial Statements..............................................34
ss.6.5 No Material Changes...............................................34
ss.6.6 Franchises, Patents, Copyrights, Etc..............................34
ss.6.7 Litigation........................................................35
ss.6.8 No Materially Adverse Contracts, Etc..............................35
ss.6.9 Compliance with Other Instruments, Laws, Etc......................35
ss.6.10 Tax Status........................................................35
ss.6.11 No Event of Default...............................................35
ss.6.12 Holding Company and Investment Company Acts.......................35
ss.6.13 Absence of UCC Financing Statements, Etc..........................36
ss.6.14 Intentionally Deleted.............................................36
ss.6.15 Certain Transactions..............................................36
ss.6.16 Employee Benefit Plans............................................36
ss.6.17 Disclosure........................................................36
ss.6.18 Trade Name; Place of Business.....................................37
ss.6.19 Regulations T, U and X............................................37
ss.6.20 Environmental Compliance..........................................37
ss.6.21 Subsidiaries......................................................39
ss.6.22 Leases............................................................40
ss.6.23 Property..........................................................40
ss.6.24 Brokers...........................................................41
ss.6.25 Other Debt........................................................41
ss.6.26 Solvency..........................................................41
ss.6.27 No Bankruptcy Filing..............................................41
ss.6.28 No Fraudulent Intent..............................................41
ss.6.29 Transaction in Best Interests of Obligor; Consideration...........41
ss.6.30 Capitalization....................................................42
ss.6.31 Notice of REIT Status.............................................42
ss.6.32 Intentionally Deleted.............................................42
ss.6.33 Certificates of Occupancy; Licenses...............................42
ss.6.34 Insurance.........................................................42
ss.6.35 Reaffirmation of Representations..................................42
SS.7. AFFIRMATIVE COVENANTS.............................................42
ss.7.1 Punctual Payment..................................................42
ss.7.2 Maintenance of Office.............................................42
ss.7.3 Records and Accounts..............................................43
ss.7.4 Financial Statements, Certificates and Information................43
ss.7.5 Notices...........................................................45
ss.7.6 Existence; Maintenance of Properties..............................47
ss.7.7 Insurance.........................................................48
ss.7.8 Taxes; Liens......................................................52
ss.7.9 Inspection of Properties and Books................................52
ss.7.10 Compliance with Laws, Contracts, Licenses, and Permits............53
ss.7.11 Further Assurances................................................53
ss.7.12 Management........................................................53
ss.7.13 Leases of the Property............................................53
ss.7.14 Business Operations...............................................53
ss.7.15 Registered Servicemark............................................54
ss.7.16 Intentionally Deleted.............................................54
ss.7.17 Distributions of Income to EPR....................................54
ss.7.18 Theatre Asset Appraisals..........................................54
ss.7.19 Intentionally Deleted.............................................54
ss.7.20 Plan Assets.......................................................54
ss.7.21 Certificates of Occupancy; Licenses...............................54
ss.7.22 Intentionally Deleted.............................................54
ss.7.23 Ground Leases.....................................................54
ss.7.24 Certain More Restrictive Provisions...............................55
ss.7.25 UCC Lien Searches.................................................55
ss.7.26 Tenant's Consent..................................................55
SS.8. NEGATIVE COVENANTS................................................55
ss.8.1 Restrictions on Indebtedness......................................55
ss.8.2 Restrictions on Liens, Etc........................................56
ss.8.3 Restrictions on Investments.......................................57
ss.8.4 Merger, Consolidation.............................................58
ss.8.5 Intentionally Deleted.............................................59
ss.8.6 Compliance with Environmental Laws................................59
ss.8.7 Distributions.....................................................60
ss.8.8 Asset Sales.......................................................61
ss.8.9 Development Activity..............................................61
ss.8.10 Restriction on Prepayment of Indebtedness.........................61
ss.8.11 Zoning and Contract Changes and Compliance........................62
ss.8.12 Derivative Obligations............................................62
ss.8.13 Subsidiary Guarantees and Pledges.................................62
ss.8.14 Organizational Document Amendments................................62
ss.8.15 Fleet Agreement Amendment.........................................62
SS.9. FINANCIAL COVENANTS...............................................62
ss.9.1 Intentionally Deleted.............................................63
ss.9.2 Debt Service Coverage Ratio.......................................63
ss.9.3 Total Debt to Total Asset Value...................................63
ss.9.4 Maximum Permitted Investments.....................................63
ss.9.5 Tangible Net Worth................................................63
ss.9.6 Interest Rate Protection..........................................63
ss.9.7 Maximum Distributions.............................................63
ss.9.8 Maximum Secured Recourse Debt to Total Asset Value................63
ss.9.9 Minimum Fixed Charge Coverage Ratio...............................63
ss.9.10 Maximum Unsecured Recourse Debt...................................64
SS.10. CLOSING CONDITIONS................................................64
ss.10.1 Loan Documents....................................................64
ss.10.2 Certified Copies of Organizational Documents......................64
ss.10.3 Resolutions.......................................................64
ss.10.4 Incumbency Certificate; Authorized Signers........................64
ss.10.5 Opinions of Counsel...............................................64
ss.10.6 Payment of Fees and Expenses......................................64
ss.10.7 Insurance.........................................................64
ss.10.8 Performance; No Default...........................................65
ss.10.9 Representations and Warranties....................................65
ss.10.10 Proceedings and Documents.........................................65
ss.10.11 Intentionally Deleted.............................................65
ss.10.12 Compliance Certificate............................................65
ss.10.13 Intentionally Deleted.............................................65
ss.10.14 Intentionally Deleted.............................................65
ss.10.15 Stockholder and Partner Consents..................................65
ss.10.16 Intentionally Deleted.............................................65
ss.10.17 Intentionally Deleted.............................................65
ss.10.18 Intentionally Deleted.............................................65
ss.10.19 Intentionally Deleted.............................................65
ss.10.20 Environmental Reports, Title Reports, Property Condition
Reports and Surveys...............................................65
ss.10.21 Intentionally Deleted.............................................66
ss.10.22 Guaranty..........................................................66
ss.10.23 Acquisition Agreements............................................66
ss.10.24 Fleet Agreement...................................................66
ss.10.25 Pro Forma Balance Sheet...........................................66
ss.10.26 No Restrictions on Issuance of Equity.............................66
ss.10.27 Solvency Certificate..............................................66
ss.10.28 Other.............................................................66
SS.11. CONDITIONS TO ALL BORROWINGS......................................66
ss.11.1 Prior Conditions Satisfied........................................66
ss.11.2 Representations True; No Default..................................66
ss.11.3 No Legal Impediment...............................................67
ss.11.4 Governmental Regulation...........................................67
ss.11.5 Proceedings and Documents.........................................67
ss.11.6 Borrowing Documents...............................................67
SS.12. EVENTS OF DEFAULT; ACCELERATION, ETC..............................67
ss.12.1 Events of Default and Acceleration................................67
ss.12.2 Intentionally Deleted.............................................70
ss.12.3 Termination of Commitments........................................70
ss.12.4 Remedies..........................................................70
ss.12.5 Distribution of Collateral Proceeds...............................71
SS.13. SETOFF............................................................72
ss.13.1 Set-Off...........................................................72
ss.13.2 Additional Rights.................................................72
SS.14. THE AGENT.........................................................72
ss.14.1 Authorization.....................................................72
ss.14.2 Employees and Agents..............................................73
ss.14.3 No Liability......................................................73
ss.14.4 No Representations................................................73
ss.14.5 Payments..........................................................73
ss.14.6 Holders of Notes..................................................74
ss.14.7 Indemnity.........................................................74
ss.14.8 Agent as Lender...................................................75
ss.14.9 Resignation; Removal..............................................75
ss.14.10 Duties in the Case of Enforcement.................................75
ss.14.11 Intentionally Deleted.............................................76
ss.14.12 Intentionally Deleted.............................................76
ss.14.13 Replacement of Holdout Lender.....................................76
SS.15. EXPENSES..........................................................76
SS.16 INDEMNIFICATION...................................................77
ss.16.1 Lender Indemnification............................................77
ss.16.2 Borrower Must Notify..............................................78
ss.16.3 Remedies..........................................................78
ss.16.4 Limitations.......................................................79
ss.16.5 Obligations Absolute..............................................79
SS.17. SURVIVAL OF COVENANTS, ETC........................................79
SS.18. ASSIGNMENT AND PARTICIPATION......................................79
ss.18.1 Conditions to Assignment by Lenders...............................79
ss.18.2 Register..........................................................80
ss.18.3 New Notes.........................................................80
ss.18.4 Participations....................................................81
ss.18.5 Pledge by Lender..................................................81
ss.18.6 No Assignment by Borrower.........................................81
ss.18.7 Disclosure........................................................81
ss.18.8 Amendments to Loan Documents......................................82
SS.19. NOTICES...........................................................82
SS.20. RELATIONSHIP......................................................84
SS.21. USURY.............................................................84
SS.22. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE................84
SS.23. POWER OF ATTORNEY.................................................84
SS.24. HEADINGS..........................................................85
SS.25. COUNTERPARTS......................................................85
SS.26. ENTIRE AGREEMENT, ETC.............................................85
SS.27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS....................85
SS.28. DEALINGS WITH THE BORROWER........................................86
SS.29. CONSENTS, AMENDMENTS, WAIVERS, ETC................................86
SS.30. SEVERABILITY......................................................86
SS.31. TIME OF THE ESSENCE...............................................87
SS.32. NO UNWRITTEN AGREEMENTS...........................................87
SS.33. REPLACEMENT NOTES.................................................87
SS.34. NO THIRD PARTIES BENEFITED........................................87
SS.35. ADDITIONAL AGENTS.................................................87
SS.36. LIMITATION ON GUARANTOR'S LIABILITY...............................88
EXHIBITS AND SCHEDULES
Exhibit A Intentionally Deleted
Exhibit B FORM OF NOTE
Exhibit E FORM OF LIMITED GUARANTY
Exhibit H FORM OF REQUEST FOR LOAN
Exhibit I Intentionally Deleted
Exhibit J Intentionally Deleted
Exhibit K FORM OF COMPLIANCE CERTIFICATE
Exhibit L FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Exhibit L-1 FORM OF ADMINISTRATIVE QUESTIONNAIRE
Schedule 1 COMMITMENTS
Schedule 2 DESCRIPTION OF THEATRE ASSETS
Schedule 3 ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS
Schedule 6.3 LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
Schedule 6.5 MATERIAL CHANGES TO MORTGAGED PROPERTIES
Schedule 6.7 PENDING LITIGATION OF BORROWER
Schedule 6.15 LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES
Schedule 6.20 ENVIRONMENTAL RELEASES
Schedule 6.21(a) SUBSIDIARIES OF THE BORROWER AND THE GUARANTOR
Schedule 6.21(b) AFFILIATES OF THE BORROWER, THE GUARANTOR AND THEIR
SUBSIDIARIES
Schedule 6.22 MONETARY DEFAULTS UNDER LEASES
Schedule 6.25 MATERIAL LOAN AGREEMENTS
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "AGREEMENT") is made as of the 30th day of March,
2004, by and among ENTERTAINMENT PROPERTIES TRUST, a real estate investment
trust duly organized and validly existing under the laws of the State of
Maryland ("EPR" and/or "BORROWER") having its principal place of business at 30
Pershing Road, Suite 201, Kansas City, MO 64108, 30 WEST PERSHING, LLC, a
limited liability company duly organized and validly existing under the laws of
the State of Missouri ("GUARANTOR"), RBC CAPITAL MARKETS, as Lead Arranger and
Sole Bookrunner, ROYAL BANK OF CANADA ("RBC"), the other lending institutions
which are parties hereto or may, pursuant to ss.18, become parties to this
Agreement as "LENDERS" (each, individually, a "LENDER"), (together with RBC, the
"LENDERS"), ROYAL BANK OF CANADA, as Agent for the Lenders (the "AGENT") and
JPMORGAN CHASE BANK, as Co-Arranger.
R E C I T A L S
WHEREAS, Borrower has requested and Lenders have agreed to extend a loan of
up to a maximum amount of $65,000,000.00 on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereto agree as follows:
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
ss.1.1 DEFINITIONS. The following terms shall have the meanings set
forth in this ss.l or elsewhere in the provisions of this Agreement referred to
below:
ACQUISITION AGREEMENTS. The Purchase Agreement, together with all
documentation relating to the acquisition of the Theatre Assets.
ADJUSTED EBITDA. EBITDA for any period, less the Replacement Reserve
amount.
ADVANCE. Any advance of proceeds under the Loans hereunder.
AFFILIATE. An Affiliate, as applied to any Person, shall mean any
other Person directly or indirectly controlling, controlled by, or under
common control with, that Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means (a) the possession, directly or indirectly, of the power to vote ten
percent (10%) or more of the stock, shares, voting trust certificates,
beneficial interest, partnership interests, member interests or other
interests having voting power for the election of directors of such Person
or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities
or by contract or otherwise, or (b) the ownership of ten percent (10%) or
more of the (i) partnership or other ownership interest of any other Person
(other than as a limited partner of such other Person) or, (ii) a managing
member's interest in a limited liability company.
AGENT. RBC, acting as administrative agent for the Lenders, and its
successors and assigns.
AGENT'S OFFICE. The Agent's office located at One Liberty Plaza, New
York, New York 10006-1404, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Lenders.
AGENT'S SPECIAL COUNSEL. Hughes Hubbard & Reed LLP or such other
counsel as selected by Agent.
AGREEMENT. This Loan Agreement, including the SCHEDULES and EXHIBITS
hereto.
APPLICABLE MARGINS. The Applicable LIBOR Margin and the Applicable
Base Rate Margin which are used in calculating the interest rate applicable
to the LIBOR Rate Loans and the Base Rate Loans shall vary in accordance
with the period set forth below (for purposes of this Agreement, "BPS"
shall mean and refer to basis points):
LEVERAGE RATIO LIBOR MARGIN BASE RATE MARGIN
From the Closing Date until and 300 bps 200 bps
including the 45th day thereafter
From the 46th day after the Closing 350 bps 250 bps
Date until the Obligations have
been repaid in full
ASSIGNMENT AND ACCEPTANCE AGREEMENT. Seess.18.1.
BALANCE SHEET DATE. December 31, 2003.
BANKRUPTCY CODE. Title 11, U.S.C.A., as amended from time to time or
any successor statute thereto.
BASE RATE. The greater of (a) the fluctuating annual rate of interest
announced from time to time by the Agent at the Agent's Office as its
"prime rate" for Dollar loans in the United States, or (b) one half of one
percent (0.5%) above the Federal Funds Effective Rate (rounded upwards, if
necessary, to the next one-eighth of one percent). The Base Rate is a
reference rate and does not necessarily represent the lowest or best rate
being charged to any customer, and which such rate serves as the basis upon
which effective rates of interest are calculated for obligations making
reference thereto. Any change in the rate of interest payable hereunder
resulting from a change in the Base Rate shall become effective as of the
opening of business on the day on which such change in the Base Rate
becomes effective, without notice or demand of any kind.
BASE RATE LOANS. Any Loan(s) hereunder bearing interest by reference
to the Base Rate.
BASE RENT. With respect to any Lease, the minimum periodic contractual
rent payable thereunder, excluding reimbursement or recovery of common area
maintenance or other property operating expenses and excluding percentage
rent.
BORROWER. As defined in the preamble hereto.
BUILDING. With respect to each Mortgaged Property, Theatre Asset or
other parcel of Real Estate, all of the buildings, structures and
improvements now or hereafter located thereon.
BUSINESS DAY. Any day of the year on which commercial banks are not
required or authorized by law to be closed for business in New York, New
York. If any day on which a payment is due is not a Business Day, then the
payment shall be due on the next day following which is a Business Day.
Further, in the event a payment is due on a specified day of the month, if
there is no corresponding day for a payment in the given calendar month
(i.e., there is no "February 30th"), the payment shall be due on the last
Business Day of the calendar month.
CAPITALIZED LEASE. A lease under which the discounted future rental
payment obligations of the lessee or the obligor are required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
CERCLA. See ss.6.20.
CHANGE IN CONTROL. A Change in Control shall exist upon the occurrence
of any of the following:
(a) any Person (including a Person's Affiliates and associates)
or group (as that term is understood under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and
the rules and regulations thereunder) shall have acquired after the
Closing Date beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) of a percentage (based on voting power, in the
event different classes of stock shall have different voting powers)
of the voting stock of any such other Person equal to at least fifty
percent (50%); or
(b) as of any date a majority of the managers or other
controlling members of any Person consists of individuals who were not
either (i) managers or otherwise controlling members or entities, as
the case may be, of such Person as of the corresponding date of the
previous year (provided, however, that the initial managers and
controlling members for reference purposes of this clause (c)(i) shall
be the managers and controlling members as of the Closing Date), (ii)
selected or nominated to become managers or controlling members by the
other managers or controlling members of said Person of which a
majority consisted of individuals described in clause (c)(i) above, or
(iii) selected or nominated to become managers or otherwise
controlling members by such managers or controlling members of said
Person of which a majority consisted of individuals or entities, as
the case may be, described in clause (c)(i), above or individuals or
entities, as the case may be, described in clause (c)(ii), above.
CLOSING DATE. The first date on which all of the conditions set forth
in ss.10 have been initially satisfied, and thereafter for any Loans, the
Closing Date shall be deemed the date of the Advance, PROVIDED THAT all of
the conditions set forth in ss.10 and ss.11 have been satisfied.
CODE. The Internal Revenue Code of 1986, as amended.
COLLATERAL RELEASE. Any release of Collateral hereunder pursuant
toss.5.3.
COMMISSION. The Securities and Exchange Commission.
COMMITMENT. With respect to each Lender, the Commitment of such
Lender, as set forth on SCHEDULE 1 hereto, as the same may be changed from
time to time in accordance with the terms of this Agreement.
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1 hereto as such Lender's percentage of the Total
Commitment, as the same may be changed from time to time in accordance with
the terms of this Agreement.
COMPLIANCE CERTIFICATE. Seess.7.4(c).
CONDEMNATION PROCEEDS. All compensation, awards, damages, rights of
action and proceeds awarded to the Borrower or a Guarantor by reason of any
Taking, net of all reasonable amounts actually expended to collect the
same.
CONSOLIDATED. With reference to any term defined herein, that term as
applied to the accounts of a Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
CONSOLIDATED EBITDA. With respect to any period, an amount equal to
the EBITDA of EPR and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
CONSOLIDATED INTEREST INCURRED. For any period, interest incurred on
all Indebtedness of EPR and its Subsidiaries (regardless of whether such
interest was expensed or capitalized in accordance with GAAP), determined
on a consolidated basis in accordance with GAAP excluding amortization of
deferred loan costs.
CONSOLIDATED TANGIBLE NET WORTH. The total consolidated Tangible Net
Worth of EPR and its Subsidiaries.
CONTINGENT OBLIGATIONS. As to any Person, means any obligation of such
Person guaranteeing or intending to guaranty any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or
not contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(c) to purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the payment of, or
the ability of the primary obligor to make payment of, such primary
obligation or (d) otherwise to assure or hold harmless the owner of such
primary obligation against loss in respect thereof; PROVIDED that the term
Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business or contracting for
purchase of real property in the ordinary course of business, or
obligations, indemnifications or guarantees of liabilities other than with
respect to the repayment of any Indebtedness, such as environmental
indemnities or "bad acts" indemnities, unless such obligations,
indemnifications or guarantees are being enforced by any applicable party
entitled to rely thereon. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
CONVERSION/CONTINUATION REQUEST. A notice given by the Borrower to the
Agent of its election to convert or continue a Loan in accordance with
ss.4.1.
DEBT SERVICE. Consolidated Interest Incurred plus regularly scheduled
amortization payments (excluding balloon maturities).
DEFAULT. See ss.12.1 herein.
DEFAULT RATE. Seess.4.12.
DERIVATIVE OBLIGATIONS. All Interest Rate Contracts and other
obligations of any Person in respect of any interest rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap forward equity transaction, equity or equity
index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, forward transaction, collar transaction,
currency swap, cross-currency rate swap transaction, forward transaction,
collar transaction, currency swap, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
DISTRIBUTION. With respect to any Person, the declaration or payment
of any cash dividend or distribution on or in respect of any shares of any
class of capital stock or other beneficial interest of such Person; the
purchase, redemption, exchange or other retirement by such Person of any
shares of any class of capital stock or other beneficial interest of such
Person, directly or indirectly through a Subsidiary of such Person or
otherwise; the return of capital by such Person to its shareholders,
partners, members or other owners as such; or any other distribution on or
in respect of any shares of any class of capital stock or other beneficial
interest of such Person; provided, however, that the dividend or
distribution of common stock of a Person shall not constitute a
Distribution with respect to such Person.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender
designated as such on SCHEDULE 1 hereto; thereafter, such other office of
such Lender, if any, located within the United States that will be making
or maintaining Base Rate Loans.
DRAWDOWN DATE. The date on which any Loan is made or is to be made,
and the date on which any Loan which is made prior to the Maturity Date is
converted in accordance with ss.4.1.
EBITDA. With respect to any Person (or any asset of any Person) for
any period, all as determined in accordance with GAAP, an amount equal to
the sum of (a) the Net Income of such Person (or attributable to such
asset) for such period PLUS (b) depreciation and amortization of real
estate, interest expensed and income taxes MINUS (c) excess of equity in
earnings from unconsolidated Subsidiaries over ordinary cash dividends
actually received from such Subsidiaries, MINUS (d) straight line rents,
MINUS (e) any gains (PLUS the losses) from extraordinary items or asset
sales or writeups or forgiveness of debt. All of the foregoing to be
calculated without duplication and with respect to (b) - (e), only to the
extent the same has been included in the calculation of such net income.
ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS. See SCHEDULE 3 attached
hereto.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by either of the Borrower or
any ERISA Affiliate, other than a Multiemployer Plan.
ENTERTAINMENT-RELATED RETAIL IMPROVEMENTS. Real estate owned by the
Borrower or an Additional Guarantor that is used for retail purposes
including but not limited to restaurants, bowling alleys, arcades, and
other leisure venues that are adjacent to and complement the operation of a
Megaplex Movie Theater.
ENVIRONMENTAL LAWS. Seess.6.20(a).
EQUITY OFFERING. The issuance and sale after December 30, 2003 by any
of EPR or its Subsidiaries of any equity securities of EPR or its
Subsidiaries or Affiliates.
EQUITY RIGHTS. With respect to any Person, any subscriptions, options,
warrants, commitments preemptive rights or agreements of any kind
(including without limitation, any shareholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type, in such
Person.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA AFFILIATE. Any Person which is treated as a single employer with
the Borrower, the Guarantors or their respective Subsidiaries under ss.414
of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of ss.4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice
has not been waived.
EVENT OF DEFAULT. Seess.12.1.
EXHIBITOR EBITDAR. As defined in the Fleet Agreement.
FEDERAL FUNDS EFFECTIVE RATE. For any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published the average of the quotations
for such day on such transactions received by the Agent from three (3)
Federal funds brokers of recognized standing selected by the Agent.
FIXED CHARGES. Debt Service plus the amount of any preferred
dividends.
FFO. With respect to the Borrower and its Subsidiaries on a
consolidated basis, "funds from operations" as defined in accordance with
resolutions adopted by the Board of Governors of the National Association
of Real Estate Investment Trusts as in effect on the date of Closing, and
as amended from time to time, subject, however, to the provisions of
Section 1.3(b) herein.
FLEET. Fleet National Bank in its capacity as agent under the Fleet
Agreement.
FLEET AGREEMENT. The Master Credit Agreement dated as of May 3, 2002,
among the Guarantor, the Borrower, Fleet National Bank, the other lenders
party thereto, and Fleet National Bank, as agent for such lenders.
GAAP. Principles that are (a) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time and (b) consistently applied
with past financial statements of the Person adopting the same principles;
PROVIDED that a certified public accountant would, insofar as the use of
such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in
generally accepted accounting principles) as to financial statements in
which such principles have been properly applied.
GUARANTEE. A Guarantee by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to secure, purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or
services, to provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part), PROVIDED that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
GUARANTOR. As defined in the preamble, together with its successors or
permitted assigns.
GUARANTY. The Limited Guaranty dated of even date herewith made by the
Guarantor in favor of the Agent and the Lenders, substantially in the form
of EXHIBIT E attached hereto.
HAZARDOUS SUBSTANCES. Seess.6.20(b).
INDEBTEDNESS. Indebtedness of any Person means at any date, without
duplication, all obligations, contingent and otherwise, direct or indirect,
in respect of (i) all obligations of such Person for borrowed money, (ii)
all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (iv) all obligations of
such Person as lessee under Capitalized Leases, (v) all obligations of such
Person to reimburse any bank or other Person in respect of amounts payable
under a banker's acceptance, (vi) all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), (vii) all obligations
of such Person to reimburse any bank or other Person in respect of amounts
paid or to be paid under a letter of credit or similar instrument, (viii)
all Indebtedness of others secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person, (ix) all
obligations of such Person with respect to interest rate protection
agreements, foreign currency exchange agreements or other hedging
arrangements (valued as the termination value thereof computed in
accordance with a method approved by the International Swap Dealers
Association and agreed to by such Person in the applicable hedging
agreement, if any), and (x) all Indebtedness of others Guaranteed by such
Person.
INDEPENDENT DIRECTOR. An individual reasonably satisfactory to Fleet,
as Agent under the Fleet Agreement, who (a) shall not be during such
individual's term as Independent Director and (b) shall not have been at
any time during the preceding five (5) years (i) other than in his or her
capacity as an Independent Director or other similar capacity, a partner,
member, shareholder of, or an officer or employee of, Borrower, Guarantor,
or any of their Subsidiaries or Affiliates, (ii) a customer of, a supplier
to Borrower, Guarantor or any of their Subsidiaries or Affiliates, (iii) an
individual controlling any such supplier or customer or (iv) a member of
the immediate family of any officer, employee, supplier or customer of any
other director of Borrower, Guarantor or any of their Subsidiaries or
Affiliates.
INSURANCE PROCEEDS. All insurance proceeds, damages, claims and rights
of action and the right thereto under any insurance policies relating to
any portion of any Potential Collateral, net of all reasonable amounts
actually expended to collect the same.
INTEREST PAYMENT DATE. As to each Loan, the first (1st) day of each
calendar month during the term of such Loan and the Maturity Date.
INTEREST PERIOD. With respect to each LIBOR Rate Loan (a) initially,
the period commencing on the Drawdown Date of such LIBOR Rate Loan and
ending one week or one month thereafter, and (b) thereafter, each period
commencing on the day following the last day of the next preceding Interest
Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Loan Request or
Conversion/Continuation Request; PROVIDED that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, such
Interest Period shall end on the next succeeding LIBOR Business Day,
unless such next succeeding LIBOR Business Day occurs in the next
calendar month, in which case such Interest Period shall end on the
next preceding LIBOR Business Day, as determined conclusively by the
Agent in accordance with the then current bank practice in London;
(ii) if the Borrower shall fail to give notice as provided in
ss.4.1, the Borrower shall be deemed to have requested a conversion of
the affected LIBOR Rate Loan to a Base Rate Loan on the last day of
the then current Interest Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR Rate Loan shall
extend beyond the Maturity Date.
INTEREST RATE CONTRACTS. Interest rate swap, collar, cap or similar
agreements providing interest rate protection.
INVESTMENTS. With respect to any Person, all shares of capital stock,
evidences of Indebtedness and other securities issued by any other Person
and owned by such Person, all loans, advances, or extensions of credit to,
or contributions to the capital of, any other Person, all purchases of the
securities or business or integral part of the business of any other Person
and commitments and options to make such purchases, all interests in real
property, and all other investments; PROVIDED, HOWEVER, that the term
"Investment" shall not include (i) equipment, inventory and other tangible
personal property acquired in the ordinary course of business, or (ii)
current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade
terms. In determining the aggregate amount of Investments outstanding at
any particular time: (a) there shall be included as an Investment all
interest accrued with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (b) there shall be deducted in
respect of each Investment any amount received as a return of capital; (c)
there shall not be deducted in respect of any Investment any amounts
received as earnings on such Investment, whether as dividends, interest or
otherwise, except that accrued interest included as provided in the
foregoing clause (a) may be deducted when paid; and (d) there shall not be
deducted in respect of any Investment any decrease in the value thereof.
JPMC. JPMorgan Chase Bank.
LEASE SUMMARIES. Summaries or abstracts of the material terms of the
Leases. Such Lease Summaries shall be in form and substance reasonably
satisfactory to the Agent.
LEASE. Any leases, license and agreement, whether written or oral,
relating to the use or occupation of space in any Building or of any Real
Estate or Theatre Asset including without limitation any ground leases
therefor (collectively, the "LEASES").
LENDERS. RBC, the other lending institutions which are or may be
parties hereto from time to time and any other Person which becomes an
assignee of any rights of a Lender pursuant to ss.18 (but not including any
participant as described in ss.18.4).
LEVERAGE RATIO. The percentage determined by dividing the Total Debt
by the Total Asset Value.
LIBOR. As applicable to any Interest Period for any LIBOR Rate Loan,
the rate per annum (rounded upwards, if necessary, to the nearest 1/32nd of
one percent) as determined on the basis of the offered rates for deposits
in Dollars, for the period of time comparable to such Interest Period which
appears on the Telerate page 3750 as of 11:00 a.m. London time on the day
that is two (2) LIBOR Business Days preceding the first day of such
Interest Period; provided, however, if the rate described above does not
appear on the Telerate System on any applicable interest determination
date, LIBOR shall be the rate (rounded upwards as described above, if
necessary) for deposits in Dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or such other page as may
replace the LIBO Page on that service for the purpose of displaying such
rates), as of 11:00 a.m. (London Time), on the day that is two (2) LIBOR
Business Days prior to the beginning of such Interest Period. If both the
Telerate and Reuters systems are unavailable, then the rate for that date
will be determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) LIBOR Business Days
preceding the first day of such Interest Period as selected by Agent. The
principal London office of each of the four major London banks will be
requested to provide a quotation of its U.S. dollar deposit offered rate.
If at least two such quotations are provided, the rate for that date will
be the arithmetic mean of the quotations. If fewer than two quotations are
provided, the rate for that date will be determined on the basis of the
rates quoted for loans in Dollars to leading European banks for a period of
time comparable to such Interest Period offered by major banks in New York
City at approximately 11:00 a.m. (New York City time), on the day that is
two (2) LIBOR Business Days preceding the first day of such Interest
Period. In the event that Agent is unable to obtain any such quotation as
provided above, it will be deemed that LIBOR pursuant to a LIBOR Rate Loan
cannot be determined and the provisions of ss.4.6 shall apply. In the event
that the Board of Governors of the Federal Reserve System shall impose a
Reserve Percentage with respect to LIBOR deposits of Agent, then for any
period during which such Reserve Percentage shall apply, LIBOR shall be
equal to the amount determined above divided by an amount equal to 1 minus
the Reserve Percentage.
LIBOR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London,
England.
LIBOR LENDING OFFICE. Initially, the office of each Lender designated
as such on SCHEDULE 1 hereto; thereafter, such other office of such Lender,
if any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR RATE LOANS. Collectively, the Loans bearing interest by
reference to LIBOR.
LIEN. See ss.8.2.
LOAN DOCUMENTS. This Agreement, the Notes and all other documents,
instruments or agreements now or hereafter executed or delivered by or on
behalf of the Borrower or Guarantor in connection with the Loans or this
Agreement.
LOAN REQUEST. Seess.2.7.
LOANS. Collectively, the Base Rate Loans and the LIBOR Rate Loans.
MANAGEMENT AGREEMENTS. Agreements, whether written or oral, providing
for the management of the Theatre Assets or any of them.
MATERIAL ADVERSE EFFECT. A material adverse effect on (a) the
business, properties, assets, condition (financial or otherwise) or results
of operations of the Borrower, Guarantor and their Subsidiaries considered
as a whole; (b) the ability of Borrower or the Guarantor to perform any of
its obligations under the Loan Documents or the Acquisition Agreements; or
(c) the validity or enforceability of any of the Loan Documents or the
Acquisition Agreements or, with respect to the Loan Documents, the rights
or remedies of Agent or the Lenders thereunder.
MATURITY DATE. June 30, 2004, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
MEGAPLEX MOVIE THEATRE. As defined in the Fleet Agreement.
MINORITY INTEREST. As to any Person, an ownership or other equity
investment in any other Person, which investment is not consolidated with
the accounts of such Person in accordance with GAAP.
MORTGAGED PROPERTY OR MORTGAGED PROPERTIES. As defined in the Fleet
Agreement.
MORTGAGED PROPERTY ASSET VALUE. As defined in the Fleet Agreement.
MORTGAGED PROPERTY NET OPERATING INCOME (OR MORTGAGED PROPERTY NOI).
As defined in the Fleet Agreement.
MORTGAGES. The Mortgages, Deeds to Secure Debt and/or Deeds of Trust
from the Guarantor to the Agent for the benefit of the Lenders (or to
trustees named therein acting on behalf of the Agent for the benefit of the
Lenders), as the same may be modified or amended, pursuant to which the
Guarantor may convey or grant a mortgage lien upon or a conveyance in fee
simple of a Theatre Asset as security for the Obligations, each such
mortgage to be substantially in form satisfactory to the Lenders, with such
changes thereto as Agent may require as a result of state law or practice.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NET INCOME (OR LOSS). With respect to any Person (or any asset of any
Person) for any period, the net income (or loss) of such Person (or
attributable to such asset), determined in accordance with GAAP. The net
income (or loss) of a Person shall include, without duplication, the
allocable share of the net income (or loss) of any other Person in which a
Minority Interest is owned by such Person based on the ownership of such
Person in such other Person.
NET RENTABLE AREA. With respect to any Real Estate, the floor area of
any buildings, structures or improvements available for leasing to tenants
determined in accordance with the Rent Roll for such Real Estate, the
manner of such determination to be reasonably consistent for all Real
Estate of the same type unless otherwise approved by the Agent.
NOTES. Collectively, the Notes made by the Borrower to the order of a
Lender substantially in the form of EXHIBIT B attached hereto.
NOTICE. See ss.19 herein.
OBLIGATIONS. All indebtedness, obligations and liabilities of the
Borrower or Guarantor to any of the Lenders or the Agent, individually or
collectively, under this Agreement or any of the other Loan Documents or in
respect of any of the Loans, the Notes or other instruments at any time
evidencing any of the foregoing, whether existing on the date of this
Agreement or arising or incurred hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law
or otherwise.
OBLIGORS, OR OBLIGOR. Collectively, Borrower and Guarantor.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED ENCUMBRANCES. Each Lien granted pursuant to any of the
Security Documents (as defined in the Fleet Agreement), the Permitted Liens
and the security interests and defects in title as may be permitted by
Fleet in its sole and reasonable discretion and as set forth on Schedule B
of the title insurance policies issued in connection with the Mortgaged
Properties.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted byss.8.2.
PERSON. Any individual, corporation, limited liability company,
partnership, trust, unincorporated association, business, or other legal
entity, and any government or any governmental agency or political
subdivision thereof, including but not limited to Borrower and Guarantor.
PLAN ASSETS. Assets of any employee benefit plan subject to Part 4,
Subtitle A, Title I of ERISA.
POTENTIAL COLLATERAL. All of the property, rights and interests of the
Borrower and each Guarantor which are or are intended to be subject to a
security interest, security title, lien and mortgage required to be created
in accordance with the provisions of this Agreement.
PURCHASE AGREEMENT. The Agreement of Sale and Purchase made and
entered into between American Multi-Cinema, Inc., a Missouri corporation
and Guarantor, executed to be effective as of March 30, 2004.
RBC. As defined in the preamble, together with its successors or
assigns.
REAL ESTATE. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower, the Guarantor or any of their Subsidiaries.
RECORD. The grid attached to any Note, or the continuation of such
grid, or any other similar record, including computer records, maintained
by the Agent with respect to any Loan referred to in such Note.
REDEEMABLE PREFERRED STOCK. Any preferred stock issued by a Person
which is at any time prior to the Maturity Date either (i) mandatorily
redeemable (by sinking fund or similar payments or otherwise) or (ii)
redeemable at the option of the holder thereof.
REGISTER. See ss.18.2 herein.
REIT STATUS. With respect to Guarantor, its status as a real estate
investment trust as defined in ss.856(a) of the Code.
RELEASE. See ss.6.20(c)(iii) herein.
RENT ROLL. A report prepared by the Borrower showing for each
Mortgaged Property or Theatre Assets owned or leased by Borrower or
Guarantor, its occupancy, lease expiration dates, lease rent and other
information in substantially the form presented to the Lenders prior to the
date hereof or in such other form as may have been approved by the Agent.
REPLACEMENT RESERVE. As defined in the Fleet Agreement.
REQUIRED LENDERS. As of any date, the Lender or Lenders (which may
also include the Agent as a Lender) whose aggregate Commitment Percentage
is greater than fifty percent (50%) of the Total Commitment, PROVIDED that
so long as RBC and JPMC are the only Lenders, Required Lenders means both
of RBC and JPMC.
RESERVE PERCENTAGE. For any day with respect to a LIBOR Rate Loan, the
maximum rate (expressed as a decimal) at which any lender subject thereto
would be required to maintain reserves (including, without limitation, all
base, supplemental, marginal and other reserves) under Regulation D of the
Board of Governors of the Federal Reserve System (or any successor or
similar regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation D or any
successor or similar regulation), if such liabilities were outstanding. The
Reserve Percentage shall be adjusted automatically on and as of the
effective date of any change in the Reserve Percentage.
SHORT-TERM INVESTMENTS. Investments described in subsections (a)
through (g), inclusive, of ss.8.3. For all purposes of this Agreement and
the other Loan Documents, the value of Short-term Investments at any time
shall be the current market value thereof determined in a manner reasonably
satisfactory to the Agent.
STATE. A state of the United States of America.
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT. An agreement
among the Agent, the Borrower or a Guarantor and a tenant under a Lease
pursuant to which such tenant agrees to subordinate its rights under the
Lease to the lien or security title of the applicable Mortgage and agrees
to recognize the Agent or its successor in interest as landlord under the
Lease in the event of a foreclosure under such Mortgage, and the Agent
agrees to not disturb the possession of such tenant, such agreement to be
in form and substance reasonably satisfactory to Agent.
SUBSIDIARY. Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes or controlling interests) of the outstanding
voting interests or other economic interest and which are consolidated with
the parent, including without limitation, under this Agreement, the
Guarantor as a Subsidiary of EPR.
SURVEY. An instrument survey of each parcel of Mortgaged Property
prepared by a registered land surveyor which shall show the location of all
buildings, structures, easements and utility lines on such property, shall
be sufficient to remove the standard survey exception from the Title
Policy, shall show that all buildings and structures are within the lot
lines of the Mortgaged Property and shall not show any encroachments by
others (or to the extent any encroachments are shown, such encroachments
shall be acceptable to the Agent in its reasonable discretion), shall show
rights of way, adjoining sites, establish building lines and street lines,
the distance to and names of the nearest intersecting streets and such
other details as the Agent may reasonably require; and shall show whether
or not the Mortgaged Property is located in a flood hazard district as
established by the Federal Emergency Management Agency or any successor
agency or is located in any flood plain, flood hazard or wetland protection
district established under federal, state or local law and shall otherwise
be in form and substance reasonably satisfactory to the Agent.
SURVEYOR CERTIFICATION. With respect to each parcel of Mortgaged
Property, a certificate executed by the surveyor who prepared the Survey
with respect thereto, dated as of a recent date and containing such
information relating to such parcel as the Agent or the Title Insurance
Company may reasonably require, such certificate to be reasonably
satisfactory to the Agent in form and substance.
TAKING. The taking or appropriation (including by deed in lieu of
condemnation) of any Mortgaged Property, or any part thereof or interest
therein, for public or quasi-public use under the power of eminent domain,
by reason of any public improvement or condemnation proceeding, or in any
other manner or any damage or injury or diminution in value through
condemnation, inverse condemnation or other exercise of the power of
eminent domain.
TANGIBLE NET WORTH. The equity of any Person as determined in
accordance with GAAP, less the total book value of all assets of such
Person properly classified as intangible assets under generally accepted
accounting principles, including such items as goodwill, the purchase price
of acquired assets in excess of the fair market value thereof, trademarks,
trade names, service marks, brand names, copyrights, patents and licenses,
and rights with respect to the foregoing.
TENANT. A tenant of the Guarantor which leases space in a Mortgaged
Property pursuant to a Lease.
THEATRE ASSETS. All of the assets purchased pursuant to the Purchase
Agreement (a brief description of which is set forth in SCHEDULE 2 attached
hereto).
THIRD PARTY INFORMATION. Information provided by or in reliance on
information provided by Tenants or other independent sources acceptable to
Agent, and upon which Borrower or Guarantor relies and has no knowledge or
reason to believe is false, inaccurate or misleading in any respects.
TITLE INSURANCE COMPANY. A nationally recognized title insurance
company and/or any other title insurance company or companies approved by
the Agent in its sole discretion.
TITLE POLICY. With respect to each parcel of Mortgaged Property, an
ALTA standard form title insurance policy (or, if such form is not
available, an equivalent, legally promulgated form of mortgagee title
insurance policy reasonably acceptable to the Agent) issued by a Title
Insurance Company (with such reinsurance as the Agent may reasonably
require, any such reinsurance to be with direct access endorsements to the
extent available under applicable law) in an amount as the Agent may
reasonably require insuring the priority of the Mortgage thereon and that
the Guarantor holds marketable fee simple title to or a valid and
subsisting leasehold interest in such parcel, subject only to the
encumbrances acceptable to Agent in its reasonable discretion and which
shall not contain standard exceptions for mechanics liens, persons in
occupancy (other than Tenants as tenants only under Leases) or matters
which would be shown by a survey, shall not insure over any matter except
to the extent that any such affirmative insurance is acceptable to the
Agent in its reasonable discretion, and shall contain (a) a revolving
credit endorsement and (b) such other endorsements and affirmative
insurance as the Agent may reasonably require and is available in the State
in which the Real Estate is located, including but not limited to (i) a
comprehensive endorsement, (ii) a variable rate of interest endorsement,
(iii) a usury endorsement, (iv) a doing business endorsement, (v) an ALTA
form 3.1 zoning endorsement (in States where same is available from the
Title Insurance Company without an opinion of counsel concerning such
matters and where other evidence of zoning compliance has not been
delivered to the Agent in the Agent's good faith business judgment), (vi) a
"tie-in" endorsement relating to all Title Policies issued by such Title
Insurance Company in respect of other Mortgaged Property and (vii) a "first
loss" endorsement.
TOTAL ASSET VALUE. The sum of: (1) unrestricted cash and marketable
securities held by EPR and its Subsidiaries plus (2) Total Real Estate
Value; plus (3) non-income producing real estate at cost of EPR and its
Subsidiaries.
TOTAL COMMITMENT. The sum of the Commitments of the Lenders, as in
effect from time to time.
TOTAL DEBT. With respect to EPR and any of its Subsidiaries, all
Indebtedness, plus the face amount of any undrawn letters of credit, plus
any Contingent Obligations.
TOTAL REAL ESTATE VALUE. EBITDA of EPR and its Subsidiaries for the
most recent quarter, with pro forma adjustments for any assets acquired or
sold during the relevant period, multiplied by four (4) (which is the
annualization factor), divided by 0.11 (which is the capitalization rate).
TOTAL SECURED DEBT. At any time, for EPR and its Subsidiaries,
determined on a Consolidated basis, the sum of the following, but only if
any Real Estate, or ownership interest of the owner thereof, is subject to
a mortgage, deed of trust, deed to secure debt or similar instrument
encumbering such Real Estate, or with respect to an owner of such Real
Estate, a pledge of any equity interests in such Person with respect
thereto: (i) all Indebtedness plus any other amounts that may constitute
indebtedness for borrowed money; (ii) the deferred purchase price of Real
Estate (not including escrow deposits given in connection with any such
purchase); (iii) all Capitalized Leases in which the Borrower is the
tenant; (iv) all obligations to reimburse any bank or other Person in
respect of amounts paid or to be paid under a letter of credit or similar
instrument; and (v) all Guarantees of Indebtedness incurred by Persons
other than for Indebtedness already accounted for in the foregoing clauses
(i) - (iv) hereof, and other than the Borrower and its Subsidiaries.
TYPE. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
UNHEDGED VARIABLE RATE DEBT. Indebtedness that by its terms bears
interest at a variable, not fixed, rate for which a swap, cap or similar
arrangement effectively limiting the variability of such rate has not been
entered into.
ss.1.2 RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time
to time in accordance with its terms and the terms of this Agreement.
(b) The definitions of terms herein shall apply equally to the
singular and the plural forms of the terms defined.
(c) A reference to any law includes any amendment or modification
of such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context requires,
means an approval in writing given to the party seeking approval after
full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be
granted.
(h) All terms not specifically defined herein or by GAAP, which
terms are defined in the Uniform Commercial Code as in effect in the
State of New York, have the meanings assigned to them therein.
(i) Reference to a particular "ss.", refers to that section of
this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
ss.1.3 ACCOUNTING TERMS AND DETERMINATIONS.
(a) GAAP. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that,
if Borrower notifies Lender that Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation
of such provision (or if Lender notifies Borrower that Lender requests
an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall
have been withdrawn or such provision amended in accordance herewith.
(b) FFO. If Borrower notifies Lender that the definition of FFO
has been amended by the Board of Governors of the National Association
of Real Estate Investment Trusts after the date of this Agreement and
that Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in
FFO or in the application thereof on the operation of such provision
(or if Lender notifies Borrower that Lender requests an amendment to
any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in FFO or in the
application thereof, then such provision shall be interpreted on the
basis of FFO as in effect and applied immediately before such change
shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ss.2. THE LOANS.
ss.2.1 INTENTIONALLY DELETED.
ss.2.2 LOANS.
(a) Subject to the terms and conditions set forth in this
Agreement, each of the Lenders severally agrees to lend to the
Borrower, and the Borrower may borrow in one borrowing from the
Closing Date to and including March 31, 2004 upon notice by the
Borrower to the Agent given in accordance with ss.2.7, such sum as
requested by the Borrower for the purposes set forth in ss.2.9 up to a
maximum aggregate principal amount outstanding equal to such Lender's
Commitment; PROVIDED, that, in all events no Default or Event of
Default shall have occurred and be continuing. The Loans shall be made
PRO RATA in accordance with each Lender's Commitment Percentage. Each
request for a Loan hereunder shall constitute a representation and
warranty by the Borrower that all of the conditions set forth in ss.10
and ss.11 have been satisfied on the date of such request. No Lender
shall have any obligation to make a Loan to Borrower in the maximum
aggregate principal outstanding balance of more than the principal
face amount of its Note.
(b) The Loans shall be evidenced by separate promissory notes of
the Borrower in substantially the form of EXHIBIT B hereto
(collectively, the "NOTES"), dated of even date with this Agreement
(except as otherwise provided in ss.18.3) and completed with
appropriate insertions. One Note shall be payable to the order of each
Lender in the principal amount equal to such Lender's Commitment or,
if less, the outstanding amount of the Loan made by such Lender, plus
interest accrued thereon, as set forth below. The Borrower irrevocably
authorizes Agent to make or cause to be made, at or about the time of
the Drawdown Date of any Loan or the time of receipt of any payment of
principal thereof, an appropriate notation on Agent's Record
reflecting the making of such Loan or (as the case may be) the receipt
of such payment. The outstanding amount of the Loans set forth on
Agent's Record shall be PRIMA FACIE evidence of the principal amount
thereof owing and unpaid to each Lender, but the failure to record, or
any error in so recording, any such amount on Agent's Record shall not
limit or otherwise affect the obligations of the Borrower hereunder or
under any Note to make payments of principal of or interest on any
Note when due.
ss.2.3 INTENTIONALLY DELETED.
ss.2.4 INTENTIONALLY DELETED.
ss.2.5 INTENTIONALLY DELETED.
ss.2.6 INTEREST ON LOANS.
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on
which such Base Rate Loan is repaid or converted to a LIBOR Rate Loan
at the rate per annum equal to the sum of the Base Rate plus the
Applicable Base Rate Margin.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day
of each Interest Period with respect thereto at the rate per annum
equal to the sum of LIBOR determined for such Interest Period plus the
Applicable LIBOR Rate Margin.
(c) The Borrower promises to pay interest on each Loan in arrears
on each Interest Payment Date with respect thereto.
(d) Base Rate Loans and LIBOR Rate Loans may be converted to
Loans of the other Type as provided in ss.4.1.
ss.2.7 REQUESTS FOR LOANS. The initial Loan on the Closing Date shall
be a Base Rate Loan. The Borrower shall give to the Agent written notice in
the form of EXHIBIT H hereto (or telephonic notice confirmed in writing in
the form of EXHIBIT H hereto; provided that the Agent and the Lenders may
rely on such telephonic notice notwithstanding the lack of or discrepant
information contained in a written confirmation) of each Loan requested
hereunder (a "LOAN REQUEST") by 10:00 a.m. (New York time) on the proposed
Drawdown Date. Such notice shall specify with respect to the requested Loan
the proposed principal amount of such Loan and the Drawdown Date. Such
notice shall also contain (i) a general statement as to the purpose for
which such Advance shall be used (which purpose shall be in accordance with
the terms of ss.2.9) and (ii) a certification by the chief financial
officer or chief accounting officer of the Borrower that the Borrower and
the Guarantor are and will be in compliance with all covenants under the
Loan Documents after giving effect to the making of such Loan. Promptly
upon receipt of any such notice, the Agent shall notify each of the Lenders
thereof. Except as provided in this ss.2.7, each such Loan Request shall be
irrevocable and binding on the Borrower and shall obligate the Borrower to
accept the Loan requested from the Lenders on the proposed Drawdown Date;
provided that, in addition to the Borrower's other remedies against any
Lender which fails to advance its proportionate share of a requested Loan,
such Loan Request may be revoked by the Borrower by notice received by the
Agent no later than the Drawdown Date if any Lender fails to advance its
proportionate share of the requested Loan in accordance with the terms of
this Agreement; and provided further that the Borrower shall be liable in
accordance with the terms of this Agreement to any Lender which is prepared
to advance its proportionate share of the requested Loan for any costs,
expenses or damages actually incurred by such Lender as a result of the
Borrower's election to revoke such Loan Request. Nothing herein shall
prevent the Borrower from seeking recourse against any Lender that fails to
advance its proportionate share of a requested Loan as required by this
Agreement. Notwithstanding anything to the contrary contained herein, the
Borrower may at any time prior to any proposed Drawdown Date, provide
written notice to the Agent (the "FULL ADVANCE NOTICE") instructing Agent
not to disburse the requested Advance until such time as Agent has received
from each Lender, its proportionate share of the requested Loan in good
funds, such that the Agent at the time of the disbursement has received
100% of the proportionate amounts due from each Lender with respect to such
Advance. There shall be no more than two (2) LIBOR Rate Loans outstanding
at any one time.
ss.2.8 FUNDS FOR LOANS.
(a) Not later than 1:00 p.m. (New York time) on the proposed
Drawdown Date of any Loans, each of the Lenders will make available to
the Agent, at the Agent's Office, in immediately available funds, the
amount of such Lender's Commitment Percentage of the amount of the
requested Loans which may be disbursed pursuant to ss.2.2. Upon
receipt from each Lender of such amount, and upon receipt of the
documents required by ss.10 and ss.11 and the satisfaction of the
other conditions set forth therein, to the extent applicable, the
Agent will make available to the Borrower the aggregate amount of such
Loans made available to the Agent by the Lenders by wire transfer of
such amount to the account(s) specified on the attachment to the Loan
Request. The failure or refusal of any Lender to make available to the
Agent at the aforesaid time and place on any Drawdown Date the amount
of its Commitment Percentage of the requested Loans shall not relieve
any other Lender from its several obligation hereunder to make
available to the Agent the amount of such other Lender's Commitment
Percentage of any requested Loans, including any additional Loans that
may be requested subject to the terms and conditions hereof to provide
funds to replace those not advanced by the Lender so failing or
refusing. In the event of any such failure or refusal, the Lenders not
so failing or refusing shall be entitled to a priority secured
position as against the Lender or Lenders so failing or refusing to
make available to the Borrower the amount of its or their Commitment
Percentage for such Loans as provided in ss.12.5.
(b) Unless the Agent shall have been notified by any Lender prior
to the applicable Drawdown Date that such Lender will not make
available to Agent such Lender's Commitment Percentage of a proposed
Loan, the Agent may in its discretion assume that such Lender has made
such Loan available to Agent in accordance with the provisions of this
Agreement and the Agent may, if it chooses, in reliance upon such
assumption make such Loan available to the Borrower, and such Lender
shall be liable to the Agent for the amount of such advance. If such
Lender does not pay such corresponding amount upon the Agent's demand
therefor, the Agent will promptly notify the Borrower, and the
Borrower shall promptly pay such corresponding amount to the Agent.
The Agent shall also be entitled to recover from the Lender or the
Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by the Agent to the Borrower to the date such corresponding
amount is recovered by the Agent at a per annum rate equal to (i) from
the Borrower at the applicable rate for such Loan or (ii) from a
Lender at the Federal Funds Effective Rate. Notwithstanding anything
to the contrary contained herein, the Borrower may at any time prior
to any proposed Drawdown Date, provide a Full Advance Notice to the
Agent instructing Agent not to disburse the requested Advance, or any
subsequent Advance, until such time as Agent has received from each
Lender, its proportionate share of the requested Loan, as provided in
ss.2.7 herein.
ss.2.9 USE OF PROCEEDS. The Borrower will use the proceeds of the
Loans solely (a) to acquire, through the Guarantor, the Theatre Assets and
to pay related transaction fees and expenses, (b) to provide a bridge to a
series of capital market transactions to refinance the Loans, and (c) for
such other purposes as the Required Lenders in their sole discretion from
time to time may agree in writing.
ss.2.10 INTENTIONALLY DELETED.
ss.3. REPAYMENT OF THE LOANS.
ss.3.1 STATED MATURITY. The Borrower promises to pay on the Maturity
Date and there shall become absolutely due and payable on the Maturity Date
all of the Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
ss.3.2 MANDATORY PREPAYMENTS.
(a) The Borrower shall, on the date of receipt thereof by the
applicable Person, prepay the Loans or, if occurring prior to the
first Drawdown Date, the Total Commitments shall be permanently
reduced on a pro rata basis, with (or by the amount of, as the case
may be) the net cash proceeds (net after underwriting discount, if
any, and after out-of-pocket transaction expenses paid to unaffiliated
third parties and related debt repayment) from: (i) any direct or
indirect Equity Offering; (ii) the sale of any assets owned by the
Borrower or any of its respective Subsidiaries and Affiliates; (iii)
the issuance by the Borrower or any Subsidiary or Affiliate of the
Borrower of Indebtedness, other than borrowings of Loans under the
Fleet Agreement; and (iv) any insurance proceeds received by the
Borrower, the Guarantor or any of their respective Subsidiaries or
Affiliates in respect of any Theatre Asset, subject, however, to the
provisions of any applicable Lease of such Theatre Asset with respect
to the application of such insurance proceeds, PROVIDED that the
applicable tenant is not in default thereunder.
(b) Without limiting the requirements in ss.3.2(a) above, upon
the Theatre Assets being pledged as collateral under the Fleet
Agreement, the Borrower shall, on the date of such pledge, prepay the
Loans with borrowings under the Fleet Agreement, equal to the higher
of (i) $35,000,000, or (ii) the increase in the borrowing availability
under the Fleet Agreement resulting from such pledge.
(c) Without limiting the requirements in ss.3.2(a) or ss.3.2(b)
above, if any letter of credit issued by RBC for the account of the
Borrower or any of its Subsidiaries is replaced or otherwise
refinanced under the Fleet Agreement, the Borrower shall, on the date
of such replacement or other refinancing, prepay the Loans in full,
together with any and all accrued and unpaid interest thereon.
ss.3.3 OPTIONAL PREPAYMENTS. The Borrower shall have the right, at its
election, to prepay the outstanding amount of the Loans, as a whole or in
part, at any time without penalty or premium; PROVIDED, that if any
prepayment of the outstanding amount of any LIBOR Rate Loans pursuant to
this ss.3.3 is made on a date that is not the last day of the Interest
Period relating thereto, such prepayment shall be accompanied by the
payment of any amounts due pursuant to ss.4.8. The Borrower shall give the
Agent, no later than 10:00 a.m., New York time, at least five (5) LIBOR
Business Day's prior written notice of any prepayment pursuant to this
ss.3.3 of LIBOR Rate Loans, and one (1) Business Day's prior written notice
of any prepayment pursuant to this ss.3.3 of Base Rate Loans, in each case
specifying the proposed date of prepayment of the applicable Loans and the
principal amount to be prepaid.
ss.3.4 INTENTIONALLY DELETED.
ss.3.5 INTENTIONALLY DELETED.
ss.3.6 EFFECT OF PREPAYMENTS. Amounts of the Loans prepaid underss.3.2
andss.3.3 prior to the Maturity Date may not be reborrowed.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.4.1 CONVERSION OPTIONS.
(a) The Borrower may elect from time to time to convert any of
its outstanding Loans to a Loan of another Type and such Loans shall
thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as
applicable; PROVIDED that (i) with respect to any such conversion of a
LIBOR Rate Loan to a Base Rate Loan, the Borrower shall give the Agent
at least one (1) Business Day's prior written notice of such election,
and such conversion shall only be made on the last day of the Interest
Period with respect to such LIBOR Rate Loan; (ii) with respect to any
such conversion of a Base Rate Loan to a LIBOR Rate Loan, the Borrower
shall give the Agent at least three (3) LIBOR Business Days' prior
written notice of such election and the Interest Period requested for
such Loan, the principal amount of the Loan so converted shall be in a
minimum aggregate amount of $2,000,000 or an integral multiple of
$100,000 in excess thereof and, after giving effect to the making of
such Loan, there shall be no more than two (2) LIBOR Rate Loans
outstanding at any one time; (iii) no Loan may be converted into a
LIBOR Rate Loan when any Event of Default has occurred and is
continuing; and (iv) no Loan may be converted into a LIBOR Rate Loan
for an Interest Period of greater than one week when any Default has
occurred and is continuing. All or any part of the outstanding Loans
of any Type may be converted as provided herein, PROVIDED that no
partial conversion shall result in a Base Rate Loan in a principal
amount of less than $1,000,000 or a LIBOR Rate Loan in a principal
amount of less than $2,000,000 and that the principal amount of each
Loan shall be in an integral multiple of $100,000. On the date on
which such conversion is being made, each Lender shall take such
action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its LIBOR Lending Office, as
the case may be. Each Conversion/Continuation Request relating to the
conversion of a Base Rate Loan to a LIBOR Rate Loan shall be
irrevocable by the Borrower.
(b) Any LIBOR Rate Loan may be continued as such Type upon the
expiration of an Interest Period with respect thereto by compliance by
the Borrower with the terms of ss.4.1; PROVIDED that no LIBOR Rate
Loan may be continued as such for an Interest Period of greater than
one week when any Default has occurred and is continuing, and no LIBOR
Rate Loan may be continued as such for any period of time when any
Event of Default has occurred and is continuing, but shall be
automatically converted to a Base Rate Loan on the last day of the
Interest Period relating thereto ending during the continuance of any
Event of Default. After a Default or Event of Default has been cured,
Borrower may convert to or continue any LIBOR Rate Loan as otherwise
provided herein.
(c) In the event that the Borrower does not notify the Agent of
its election hereunder with respect to any LIBOR Rate Loan, such Loan
shall be automatically converted to a Base Rate Loan at the end of the
applicable Interest Period.
ss.4.2 ARRANGEMENT FEE. The Borrower shall pay to RBC such amounts on
such dates as are set forth in a separate agreement regarding any such fees
among Borrower, RBC and JPMC.
ss.4.3 INTENTIONALLY DELETED.
ss.4.4 FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, fees and any other
amounts due hereunder or under any of the other Loan Documents shall
be made to the Agent, for the respective accounts of the Lenders and
the Agent, as the case may be, at the Agent's Office, not later than
1:00 p.m. (New York time) on the day when due, in each case in lawful
money of the United States in immediately available funds. The Agent
is hereby authorized to charge the accounts, if any, of the Borrower
with RBC, on the dates when the amount thereof shall become due and
payable, with the amounts of the principal of and interest on the
Loans and all fees, charges, expenses and other amounts owing to the
Agent and/or the Lenders under the Loan Documents.
(b) All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes (other than
income or franchise taxes imposed on any Lender), levies, imposts,
duties, charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter imposed or
levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless the Borrower is compelled by
law to make such deduction or withholding. If any such obligation is
imposed upon the Borrower with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrower will
pay to the Agent, for the account of the Lenders or (as the case may
be) the Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Lenders or the Agent to
receive the same net amount which the Lenders or the Agent would have
received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Agent certificates
or other valid vouchers for all taxes or other charges required to be
deducted from or paid with respect to payments made by the Borrower
hereunder or under any other Loan Document.
(c) Each Lender organized under the laws of a jurisdiction
outside the United States, if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower with such duly executed form(s) or
statement(s) which may, from time to time, be prescribed by law and,
which, pursuant to applicable provisions of (i) an income tax treaty
between the United States and the country of residence of such Lender,
(ii) the Code, or (iii) any applicable rules or regulations in effect
under (i) or (ii) above, indicates the withholding status of such
Lender; provided that nothing herein (including without limitation the
failure or inability to provide such form or statement) shall relieve
the Borrower of its obligations under ss.4.4(b). In the event that the
Borrower shall have delivered the certificates or vouchers described
above for any payments made by the Borrower and such Lender receives a
refund of any taxes paid by the Borrower pursuant to ss.4.4(b), such
Lender will pay to the Borrower the amount of such refund promptly
upon receipt thereof; PROVIDED that if at any time thereafter such
Lender is required to return such refund, the Borrower shall promptly
repay to such Lender the amount of such refund.
(d) The obligations of the Borrower to the Lenders under this
Agreement shall be absolute, unconditional and irrevocable, and shall
be paid and performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including, without
limitation, the following circumstances: (i) any lack of validity or
enforceability of this Agreement or any of the other Loan Documents;
(ii) any improper use which may be made of any Loan; (iii) the
existence of any claim, set-off, defense or any right which the
Borrower or any of its Subsidiaries or Affiliates may have at any time
against any of the Lenders (other than the defense of payment to the
Lenders in accordance with the terms of this Agreement) or any other
person, whether in connection with this Agreement, any other Loan
Document, or any unrelated transaction; (iv) the surrender or
impairment of any security for the performance or observance of any of
the terms of any of the Loan Documents; (v) the occurrence of any
Default or Event of Default; and (vi) any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing,
provided that such other circumstances or happenings shall not have
been the result of negligence or willful misconduct on the part of any
Lender.
ss.4.5 COMPUTATIONS. All computations of interest on the Loans and of
other fees to the extent applicable shall be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided in
the definition of the term "INTEREST PERIOD" with respect to LIBOR Rate
Loans, whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding Business Day, and
interest shall accrue during such extension. The Outstanding Loans as
reflected on the records of the Agent from time to time shall be considered
PRIMA FACIE evidence of such amount.
ss.4.6 INABILITY TO DETERMINE LIBOR. In the event that, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the
Agent shall determine that adequate and reasonable methods do not exist for
ascertaining LIBOR for such Interest Period, the Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrower and the Lenders absent manifest error) to the Borrower and the
Lenders. In such event (a) any Loan Request with respect to a LIBOR Rate
Loan shall be automatically withdrawn and shall be deemed a request for a
Base Rate Loan and (b) each LIBOR Rate Loan will automatically, on the last
day of the then current Interest Period applicable thereto, become a Base
Rate Loan, and the obligations of the Lenders to make LIBOR Rate Loans
shall be suspended until the Agent determines that the circumstances giving
rise to such suspension no longer exist, whereupon the Agent shall so
notify the Borrower and the Lenders.
ss.4.7 ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful, or any
central bank or other governmental authority having jurisdiction over a
Lender or its LIBOR Lending Office shall assert that it is unlawful, for
any Lender to make or maintain LIBOR Rate Loans, such Lender shall
forthwith give notice of such circumstances to the Agent and the Borrower
and thereupon (a) the commitment of the Lenders to make LIBOR Rate Loans
shall forthwith be suspended and (b) the LIBOR Rate Loans then outstanding
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such LIBOR Rate Loans or within such earlier
period as may be required by law. Notwithstanding the foregoing, before
giving such notice, the applicable Lender shall designate a different
lending office if such designation will void the need for giving such
notice and will not, in the judgment of such Lender, be otherwise
materially disadvantageous to such Lender. In the event that the applicable
Lender shall be replaced pursuant to ss.4.15, then to the extent the terms
of this ss.4.7 are not otherwise applicable, Borrower again shall be
permitted to request LIBOR Rate Loans.
ss.4.8 ADDITIONAL INTEREST. If any LIBOR Rate Loan or any portion
thereof is repaid or is converted to a Base Rate Loan for any reason on a
date which is prior to the last day of the Interest Period applicable to
such LIBOR Rate Loan, or if repayment of the Loans has been accelerated as
provided in ss.12.1, the Borrower will pay to the Agent upon demand for the
account of the applicable Lenders in accordance with their respective
Commitment Percentages in addition to any amounts of interest otherwise
payable hereunder, any amounts required to compensate such Lenders for any
losses, costs or expenses which may reasonably be incurred as a result of
such payment or conversion, including, without limitation, an amount equal
to daily interest for the unexpired portion of such Interest Period on the
LIBOR Rate Loan or portion thereof so repaid or converted at a per annum
rate equal to the excess, if any, of (a) the interest rate calculated on
the basis of LIBOR applicable to such LIBOR Rate Loan (including any spread
over LIBOR) minus (b) the yield obtainable by the Agent upon the purchase
of debt securities customarily issued by the Treasury of the United States
of America which have a maturity date most closely approximating the last
day of such Interest Period (it being understood that the purchase of such
securities shall not be required in order for such amounts to be payable)
and that a Lender shall not be obligated or required to have actually
obtained funds at LIBOR or to have actually reinvested such amounts as
described above. Such amount shall be reduced to present value by using the
rate on the United States Treasury Securities described in the foregoing
sentence and the number of days remaining in the unexpired portion of the
Interest Period in question.
ss.4.9 ADDITIONAL COSTS, ETC. Notwithstanding anything herein to the
contrary, if any present or future applicable law, which expression, as
used herein, includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices
at any time or from time to time hereafter made upon or otherwise issued to
any Lender or the Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect
to this Agreement, the other Loan Documents, such Lender's Commitment
or the Loans (other than taxes based upon or measured by the gross
receipts, income or profits of such Lender or the Agent or its
franchise tax), or
(b) materially change the basis of taxation (except for changes
in taxes on gross receipts, income or profits or its franchise tax) of
payments to any Lender of the principal of or the interest on any
Loans or any other amounts payable to any Lender under this Agreement
or the other Loan Documents, or
(c) impose or increase or render applicable any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law and which are not
already reflected in any amounts payable by Borrower hereunder)
against assets held by, or deposits in or for the account of, or loans
by, or commitments of an office of any Lender, or
(d) impose on any Lender or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents,
the Loans, such Lender's Commitment or any class of loans or
commitments of which any of the Loans or such Lender's Commitment
forms a part;
and the result of any of the foregoing is:
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans, or
such Lender's Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to any Lender or the Agent hereunder on account of
such Lender's Commitment or any of the Loans, or
(iii) to require any Lender or the Agent to make any payment
or to forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable
or deemed received by such Lender or the Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, within fifteen (15) days of
demand made by such Lender or (as the case may be) the Agent at any time
and from time to time and as often as the occasion therefor may arise, pay
to such Lender or the Agent such additional amounts as such Lender or the
Agent shall determine in good faith to be sufficient to compensate such
Lender or the Agent for such additional cost, reduction, payment or
foregone interest or other sum. Each Lender and the Agent in determining
such amounts may use any reasonable averaging and attribution methods
generally applied by such Lender or the Agent.
ss.4.10 CAPITAL ADEQUACY. If after the date hereof any Lender
determines that (a) the adoption of or change in any law, rule, regulation
or guideline regarding capital requirements for banks or bank holding
companies or any change in the interpretation or application thereof by any
governmental authority charged with the administration thereof, or (b)
compliance by such Lender or its parent bank holding company with any
guideline, request or directive of any such entity regarding capital
adequacy (whether or not having the force of law), has the effect of
reducing the return on such Lender's or such holding company' s capital as
a consequence of such Lender's commitment to make Loans hereunder to a
level below that which such Lender or holding company could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's or such holding company' s then existing policies with respect to
capital adequacy and assuming the full utilization of such entity' s
capital) by any amount deemed by such Lender to be material, then such
Lender may notify the Borrower thereof. The Borrower agrees to pay to such
Lender the amount of such reduction in the return on capital as and when
such reduction is determined, upon presentation by such Lender of a
statement of the amount setting forth the Lender's calculation thereof. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods generally applied by such Lender.
ss.4.11 INDEMNITY OF BORROWER. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from and against any loss, cost or
expense that such Lender may sustain or incur as a consequence of (a)
default by the Borrower in payment of the principal amount of or any
interest on any LIBOR Rate Loans as and when due and payable, including any
such loss or expense arising from interest or fees payable by such Lender
to lenders of funds obtained by it in order to maintain its LIBOR Rate
Loans, or (b) default by the Borrower in making a borrowing or a conversion
after the Borrower has given (or is deemed to have given) a Loan Request or
a Conversion/Continuation Request.
ss.4.12 DEFAULT INTEREST; LATE CHARGE. Following the occurrence and
during the continuance of any Event of Default, and regardless of whether
or not the Agent or the Lenders shall have accelerated the maturity of the
Loans, all Loans shall bear interest payable on demand at a rate per annum
equal to four percent (4%) above the rate that would otherwise be
applicable at such time (the "DEFAULT RATE"), until such amount shall be
paid in full (after as well as before judgment). In addition, the Borrower
shall pay a late charge equal to five percent (5.0%) of any amount of
interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid by the Borrower
within five (5) days of the date when due.
ss.4.13 CERTIFICATE. A certificate setting forth any amounts payable
pursuant to ss.4.8, ss.4.9, ss.4.10, ss.4.11 or ss.4.12 and a reasonably
detailed explanation of such amounts which are due, submitted by any Lender
or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.
ss.4.14 LIMITATION ON INTEREST. Notwithstanding anything in this
Agreement or the other Loan Documents to the contrary, all agreements
between or among the Borrower, the Guarantor, the Lenders and the Agent,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of acceleration
of the maturity of any of the Obligations or otherwise, shall the interest
contracted for, charged or received by the Lenders exceed the maximum
amount permissible under applicable law. If, from any circumstance
whatsoever, interest would otherwise be payable to the Lenders in excess of
the maximum lawful amount, the interest payable to the Lenders shall be
reduced to the maximum amount permitted under applicable law; and if from
any circumstance the Lenders shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an
amount equal to any excessive interest shall be applied to the reduction of
the principal balance of the Obligations and to the payment of interest or,
if such excessive interest exceeds the unpaid balance of principal of the
Obligations, such excess shall be refunded to the Borrower. All interest
paid or agreed to be paid to the Lenders shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the
full period until payment in full of the principal of the Obligations
(including the period of any renewal or extension thereof) so that the
interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law. This Section shall control all agreements
between or among the Borrower, the Guarantor, the Lenders and the Agent.
ss.4.15 CERTAIN PROVISIONS RELATING TO INCREASED COSTS. If a Lender
gives notice of the existence of the circumstances set forth in ss.4.7 or
any Lender requests compensation for any losses or costs to be reimbursed
pursuant to any one or more of the provisions of ss.4.4, ss.4.9 or ss.4.10,
then, upon request of Borrower, such Lender, as applicable, shall use
reasonable efforts in a manner consistent with such institution's practice
in connection with loans like the Loan of such Lender to eliminate,
mitigate or reduce amounts that would otherwise be payable by Borrower
under the foregoing provisions, provided that such action would not be
otherwise prejudicial to such Lender, including, without limitation, by
designating another of such Lender's offices, branches or affiliates; the
Borrower agreeing to pay all reasonably incurred costs and expenses
incurred by such Lender in connection with any such action.
ss.5. COLLATERAL SECURITY.
ss.5.1 COLLATERAL. If, on or before the 45th day after the Closing
Date, the Theatre Assets shall not have been pledged to secure the
obligations under the Fleet Agreement or the mandatory prepayment required
under ss.3.2(b) shall not have been made, then the Guarantor shall,
promptly upon request of the Agent or the Required Lenders, grant to the
Agent, as security for the Obligations, a perfected first priority lien to
be held by the Agent for the ratable benefit of the Agent and the Lenders,
on the Theatre Assets. In connection with such lien, the Guarantor shall
execute and deliver to the Agent all Eligible Real Estate Qualification
Documents, all of which instruments, documents or agreements shall be in
form and substance reasonably satisfactory to the Agent in its reasonable
discretion.
After giving effect to the liens on the Potential Collateral, each of
the representations and warranties made by or on behalf of the Borrower or
the Guarantor or any of their Subsidiaries contained in this Agreement, the
other Loan Documents or in any document or instrument delivered pursuant to
or in connection with this Agreement shall be true in all material respects
both as of the date as of which it was made and shall also be true as of
the time of the granting of the lien on the Theatre Assets, with the same
effect as if made at and as of that time (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct only as of such
specified date), and no Default or Event of Default shall have occurred and
be continuing, and the Agent shall have received a certificate of the
Borrower to such effect.
Borrower shall pay any and all reasonable out-of-pocket expenses and
costs, including attorneys fees, incurred by the Agent or the Lenders in
connection with review and/or closing of the Potential Collateral.
ss.5.2 INTENTIONALLY DELETED.
ss.5.3 RELEASE OF COLLATERAL. Upon the first to occur of (a) the
refinancing or repayment and satisfaction of the Obligations in full and
(b) the pledging of the Theatre Assets as Eligible Real Estate under (and
as defined in and in accordance with the terms of) the Fleet Agreement and
the making of the mandatory prepayment required pursuant to ss.3.2(b), then
the Agent shall release the Potential Collateral from the lien and security
interest of the Mortgages and any other security documents.
ss.6. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and Guarantor represents, warrants and covenants to
the Agent and the Lenders as follows.
ss.6.1 CORPORATE, LIMITED LIABILITY COMPANY AUTHORITY, ETC.
(a) GUARANTOR SPECIAL PURPOSE ENTITY. Until the Loans and all
other obligations of Borrower or Guarantor to the Agent or any Lender
under the Loan Documents have been paid in full and the Lenders have
no further obligations to make any Loans hereunder, each of the
Borrower and Guarantor hereby represents, warrants and covenants that
Guarantor is and shall continue to be, a Special Purpose Entity. As
used herein "SPECIAL PURPOSE ENTITY" and/or "SPE" means a corporation
or limited liability company which:
(i) is organized solely for the purpose of acquiring,
developing, owning, holding, selling, leasing, transferring,
exchanging, managing and operating the Mortgaged Properties and
the Development Properties owned by it (directly or indirectly),
entering into this Agreement, the Fleet Agreement and the other
Loan Documents with the Agent and the Lenders, refinancing the
Mortgaged Properties and the Development Properties owned by it
(directly or indirectly) in connection with a permitted repayment
of the Loan, and transacting lawful business that is incident,
necessary and appropriate to accomplish the foregoing;
(ii) is not engaged and will not engage in any business
unrelated to the acquisition, development, ownership, management
or operation of the Mortgaged Properties and Development
Properties owned by it (directly or indirectly);
(iii) does not have and will not have any assets other than
those related to the Mortgaged Properties and the Development
Properties owned by it (directly or indirectly);
(iv) has not engaged, sought or consented to and will not
engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation, merger, sale of all or substantially
all of its assets or amend its articles of incorporation,
certificate of formation with respect to the matters set forth in
this definition;
(v) has a certificate of incorporation or articles that
provide that such entity will not: (1) dissolve, merge,
liquidate, consolidate; (2) sell all or substantially all of its
assets; (3) engage in any other business activity, or amend its
organizational documents with respect to the matters set forth in
this definition without the consent of the Lenders; or (4)
without the affirmative vote of one Independent Director and of
all other directors of the corporation file a bankruptcy or
insolvency petition or otherwise institute insolvency proceedings
with respect to itself or to any other entity in which it has a
direct or indirect legal or beneficial ownership interest;
(vi) is and will remain solvent and pay its debts and
liabilities (including, as applicable, shared personnel and
overhead expenses) from its assets as the same shall become due,
and is maintaining and will maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its
size and character and in light of its contemplated business
operations;
(vii) has not failed and will not fail to correct any known
misunderstanding regarding the separate identity of such entity;
(viii) has maintained and will maintain its accounts, books
and records separate from any other Person and will file its own
tax returns, except to the extent that it is required to file
consolidated tax returns by law.
(ix) has maintained and will maintain its own records,
books, resolutions and agreements;
(x) has not commingled and will not commingle its funds or
assets with those of any other Person and has not participated
and will not participate in any cash management system with any
other Person;
(xi) has held and will hold its assets in its own name;
(xii) has conducted and will conduct its business in its own
name;
(xiii) has maintained and will maintain its financial
statements, accounting records and other entity documents
separate from any other Person and has not permitted and will not
permit its assets to be listed as assets on the financial
statement of any other entity except as required by GAAP;
provided, however, that any such consolidated financial statement
shall contain a note indicating that its separate assets and
liabilities are neither available to pay the debts of the
consolidated entity nor constitute obligations of the
consolidated entity;
(xiv) has paid and will pay its own liabilities and
expenses, including the salaries of its own employees, out of its
own funds and assets, and has maintained and will maintain a
sufficient number of employees in light of its contemplated
business operations;
(xv) has observed and will observe all corporate
formalities;
(xvi) has and will have no Indebtedness other than (i)
related to the Loans and the Fleet Agreement, (ii) liabilities
incurred in the ordinary course of business relating to the
ownership and operation of the Mortgaged Properties, Theatre
Assets and Development Properties and the routine administration
of such corporation, in amounts not to exceed $250,000 which
liabilities are not more than sixty (60) days past the date
incurred, are not evidenced by a note and are paid when due, and
which amounts are normal and reasonable under the circumstances,
and (iii) such other liabilities that are permitted pursuant to
this Agreement;
(xvii) has not and will not assume or guarantee or become
obligated for the debts of any other Person or hold out its
credit as being available to satisfy the obligations of any other
Person except as existing or permitted pursuant to this
Agreement;
(xviii) has not and will not acquire obligations or
securities of its shareholders or any other Affiliate;
(xix) has allocated and will allocate fairly and reasonably
any overhead expenses that are shared with any Affiliate,
including paying for shared office space and services performed
by any employee of an Affiliate;
(xx) maintains and uses and will maintain and use separate
stationery, invoices and checks bearing its name. The stationery,
invoices, and checks utilized by the Special Purpose Entity or
utilized to collect its funds or pay its expenses shall bear its
own name and shall not bear the name of any other entity unless
such entity is clearly designated as being the Special Purpose
Entity's agent;
(xxi) has not pledged and will not pledge its assets for the
benefit of any other Person except in favor of Lender under the
Loan Documents;
(xxii) has held itself out and identified itself and will
hold itself out and identify itself as a separate and distinct
entity under its own name;
(xxiii) has maintained and will maintain its assets in such
a manner that it will not be costly or difficult to segregate,
ascertain or identify its individual assets from those of any
other Person;
(xxiv) has not made and will not make loans to any Person or
hold evidence of indebtedness issued by any other Person or
entity (other than cash and investment-grade securities issued by
an entity that is not an Affiliate of or subject to common
ownership with such entity);
(xxv) has not identified and will not identify its partners,
members or shareholders, or any Affiliate of any of them, as a
division or part of it, and has not identified itself and shall
not identify itself as a division of any other Person;
(xxvi) has not entered into or been a party to, and will not
enter into or be a party to, any transaction with its
shareholders or Affiliates except (A) in the ordinary course of
its business and on terms which are intrinsically fair,
commercially reasonable and are no less favorable to it than
would be obtained in a comparable arm's-length transaction with
an unrelated third party and (B) in connection with this
Agreement;
(xxvii) has not and will not have any obligation to, and
will not, indemnify its officers, directors or shareholders, as
the case may be, unless such an obligation is fully subordinated
to the Loan and will not constitute a claim against it in the
event that cash flow in excess of the amount required to pay the
Loan is insufficient to pay such obligation;
(xxviii) shall consider the interests of its creditors in
connection with all corporate actions;
(xxix) intentionally deleted;
(xxx) has complied and will comply with all of the terms and
provisions contained in its organizational documents. The
statement of facts contained in its organizational documents are
true and correct and will remain true and correct; and
(xxxi) has and shall maintain at least 1 Independent
Director and caused the articles of incorporation for such Person
to require at least 1 Independent Director.
For purposes of this ss.6.1(a), the term "Mortgaged Properties"
shall be deemed to include the Theatre Assets and the terms
"Development Properties", "Loan Documents", "Agent", "Lenders" and
"Loans" shall have the meanings set forth for such terms herein and in
the Fleet Agreement.
(b) SURVIVAL. The representations, warranties and covenants set
forth in this Section 6.1 shall survive for so long as any amount
remains payable to the Agent or the Lenders under this Agreement or
any other Loan Document.
(c) INTENTIONALLY DELETED.
(d) BORROWER-REIT. EPR is a Maryland real estate investment trust
duly organized pursuant to an Amended and Restated Declaration of
Trust filed with the Maryland Department of Assessments and Taxation,
and is in good standing under the laws of Maryland. EPR conducts its
business in a manner which enables it to qualify as a real estate
investment trust under, and to be entitled to the benefits of, ss.856
of the Code, and has elected to be treated as and is entitled to the
benefits of a real estate investment trust thereunder. The Guarantor
(i) has all requisite power to own its property and conduct its
business as now conducted and as presently contemplated, and (ii) is
in good standing and is duly authorized to do business in the
jurisdictions where the Mortgaged Properties owned or leased by it are
located and in each other jurisdiction where a failure to be so
qualified in such other jurisdiction could have a materially adverse
effect on the business, assets or financial condition of EPR. EPR has
not taken any action that would prevent it from maintaining its
qualification as a REIT for its tax year ending December 31, 2003, or
as of the date of this Agreement, from maintaining such qualification
at all times during the term of the Loans.
(e) GUARANTOR-SPE. Guarantor is a Missouri limited liability
company duly organized pursuant to articles of organization filed with
the Missouri Secretary of State, and is in good standing under the
laws of Arizona and New Jersey. The Guarantor conducts its business in
a manner which enables it to qualify as an SPE. The Guarantor (i) has
all requisite power to own its property and conduct its business as
now conducted and as presently contemplated, and (ii) is in good
standing and is duly authorized to do business in the jurisdictions
where the Theatre Assets are located and in each other jurisdiction
where a failure to be so qualified in such other jurisdiction could
have a materially adverse effect on the business, assets or financial
condition of the Guarantor. Guarantor has not taken any action that
would prevent it from maintaining its qualification as an SPE as of
the date of this Agreement, or from maintaining such qualification at
all times during the term of the Loans.
(f) SUBSIDIARIES. Each of the Subsidiaries of the Borrower (i) is
a corporation, limited partnership, general partnership, limited
liability company or trust duly organized under the laws of its State
of organization and is validly existing and in good standing under the
laws thereof, (ii) has all requisite power to own its property and
conduct its business as now conducted and as presently contemplated
and (iii) is in good standing and is duly authorized to do business in
each jurisdiction where a failure to be so qualified could have a
materially adverse effect on the business, assets or financial
condition of the Borrower, the Guarantor or any such Subsidiary.
(g) AUTHORIZATION. The execution, delivery and performance of
this Agreement, the other Loan Documents and the Acquisition
Agreements to which any of the Borrower or Guarantor is a party and
the transactions contemplated hereby and thereby (i) are within the
authority of such Person, (ii) have been duly authorized by all
necessary proceedings on the part of such Person, (iii) do not and
will not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which such Person is
subject or any judgment, order, writ, injunction, license or permit
applicable to such Person, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving
of notice, or both) under any provision of the partnership agreement,
articles of incorporation or other charter documents or bylaws of, or
any agreement or other instrument binding upon, such Person or any of
its properties, (v) do not and will not result in or require the
imposition of any lien or other encumbrance on any of the properties,
assets or rights of such Person, and (vi) do not require the approval
or consent of any Person other than those already obtained and
delivered to Agent.
(h) ENFORCEABILITY. The execution and delivery of this Agreement,
the other Loan Documents and the Acquisition Agreements to which any
of the Borrower or Guarantor is a party are valid and legally binding
obligations of such Person enforceable in accordance with the
respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and general principles of equity.
(i) SEC FILINGS. EPR has made all filings with and obtained all
consents of the Securities and Exchange Commission as required, if
any, under the Securities Act and the Securities Exchange Act in
connection with the execution, delivery and performance by EPR of each
of the Obligations incurred in connection with the Loan Documents.
ss.6.2 GOVERNMENTAL APPROVALS. The execution, delivery and performance
of this Agreement, the other Loan Documents and the Acquisition Agreements
to which the Borrower or Guarantor is a party and the transactions
contemplated hereby and thereby do not require the approval or consent of,
or filing with, any governmental agency or authority other than those
already obtained.
ss.6.3 TITLE TO PROPERTIES. Except as indicated on SCHEDULE 6.3
hereto, the EPR's 2003 Form 10-K ("10-K") and 2003 Annual Meeting Proxy
Statement (the "PROXY STATEMENT"), as filed with the SEC under the Exchange
Act and as delivered to Agent herewith, the Borrower, the Guarantor and
their Subsidiaries own or lease all of the assets reflected in the
Consolidated balance sheet of Borrower, Guarantor and their Subsidiaries as
at the Balance Sheet Date or acquired or leased since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date) or other adjustments that are not material in
amount, subject to no rights of others, including any mortgages, leases
pursuant to which Borrower or any of such Subsidiaries is the lessee, other
than Qualified Ground Leases (as defined in the Fleet Agreement),
conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens. Provided, however, that in no event
shall any reference to any prior 10-Ks or Proxy Statements which may be
incorporated by reference within the 10-K and Proxy Statement delivered
herewith be deemed delivered to Lenders nor shall any such information
contained in any such prior filings be deemed delivered to Lenders.
ss.6.4 FINANCIAL STATEMENTS. The Borrower has furnished to Agent and
the Lenders: (a) the Consolidated balance sheet of Borrower and its
Subsidiaries as of the Balance Sheet Date and the related Consolidated
statement of income and cash flow for the fiscal year then ended, (b) an
unaudited statement of Mortgaged Property Net Operating Income for each of
the Mortgaged Properties as of the Closing Date for the fiscal quarter
ended December 31, 2003 reasonably satisfactory in form to the Agent and
certified by the chief financial or accounting officer of Borrower as
fairly presenting the Mortgaged Property Net Operating Income for such
Properties for such periods, and (c) certain other financial information
relating to the Borrower, the Guarantor and the Real Estate, such as
revenue information with respect to Exhibitor EBITDAR. Such balance sheet
and statements have been prepared in accordance with GAAP and fairly
present the Consolidated financial condition of the Guarantor and its
Subsidiaries as of such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for such periods. There are
no liabilities, contingent or otherwise, of the Borrower or any of its
Subsidiaries involving material amounts required to be disclosed and not
disclosed in said financial statements and the related notes thereto. The
theatre revenue statements for the Mortgaged Properties prepared by the
respective tenants and delivered to Agent in connection herewith, are to
Borrower's knowledge, true, correct, complete and accurate statements
thereof.
ss.6.5 NO MATERIAL CHANGES. Since the Balance Sheet Date, there has
occurred no materially adverse change in the condition (financial or
otherwise) of the business, assets, operations, or prospects of the EPR and
its Subsidiaries taken as a whole as shown on or reflected in the
consolidated balance sheet of the EPR and its Subsidiaries as of the
Balance Sheet Date, or its Consolidated statement of income or cash flows
for the fiscal year then ended, other than changes in the ordinary course
of business that could not reasonably be expected to have a Material
Adverse Effect. As of the date hereof, except as set forth on SCHEDULE 6.5
hereto, based on information provided to Guarantor from any applicable
tenant, there has occurred no materially adverse change in the financial
condition or business of any of the Mortgaged Properties from the condition
shown on the statements of income delivered to the Agent pursuant to ss.6.4
other than changes in the ordinary course of business that have not had any
Materially Adverse Effect either individually or in the aggregate on the
business or financial condition of such Mortgaged Property.
ss.6.6 FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower, the
Guarantor and their Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, service marks, licenses and permits,
and rights in respect of the foregoing, adequate for the conduct of their
business substantially as now conducted without known conflict with any
rights of others. None of the Mortgaged Properties is (or, with respect to
the Theatre Assets, will be after giving effect to the Acquisition
Agreements) owned or operated under or by reference to any registered or
protected trademark, trade name, service mark or of Borrower, Guarantor or
their Subsidiaries.
ss.6.7 LITIGATION. Except as stated on SCHEDULE 6.7, there are no
actions, suits, proceedings or investigations of any kind pending or to the
knowledge of the Borrower threatened against the Borrower, Guarantor or any
of their Subsidiaries before any court, tribunal, arbitrator, mediator or
administrative agency or board which question the validity of this
Agreement, any of the other Loan Documents or any of the Acquisition
Agreements, any action taken or to be taken pursuant hereto or thereto or
any lien, security title or security interest created or intended to be
created pursuant hereto or thereto, or which if adversely determined could
reasonably be expected to have a Material Adverse Effect. Except as set
forth on SCHEDULE 6.7, there are no judgments, final orders or awards
outstanding against or affecting the Borrower, Guarantor, any of their
Subsidiaries, any Mortgaged Property or any Theatre Asset.
ss.6.8 NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrower,
Guarantor or any of their Subsidiaries is subject to any judgment, decree
or order that has or is reasonably expected in the future to have a
materially adverse effect on the business, assets or financial condition of
such Person.
ss.6.9 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrower, the Guarantor or any of their Subsidiaries is in violation of any
provision of its charter or other organizational documents, bylaws, or any
agreement or instrument to which it is subject or by which it or any of its
properties is bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could
reasonably be expected to materially and adversely affect the financial
condition, properties or business of such Person.
ss.6.10 TAX STATUS. Each of the Borrower, the Guarantor and their
Subsidiaries (a) has made or filed all federal and state income and all
other material tax returns, reports and declarations required by any
jurisdiction to which it is subject or has obtained an extension for
filing, (b) has paid prior to delinquency all taxes and other governmental
assessments and charges shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and by
appropriate proceedings and (c) has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to
the periods to which such returns, reports or declarations apply. There are
no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction.
ss.6.11 NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
ss.6.12 HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrower, the Guarantor or any of their Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935; nor is any of them an "investment
company", or an "affiliated company" or a "principal underwriter" of an
"investment company", as such terms are defined in the Investment Company
Act of 1940.
ss.6.13 ABSENCE OF UCC FINANCING STATEMENTS, ETC. Except with respect
to Permitted Liens or as disclosed on the lien search reports delivered to
and approved by the Agent, there is no financing statement (but excluding
any financing statements that may be filed against Borrower, Guarantor or
their Subsidiaries without the consent or agreement of such Persons),
security agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any applicable filing records, registry, or
other public office, that purports to cover, affect or give notice of any
present or possible future lien on, or security interest or security title
in, any of the Theatre Assets.
ss.6.14 INTENTIONALLY DELETED.
ss.6.15 CERTAIN TRANSACTIONS. Except as disclosed on SCHEDULE 6.15
hereto, or in EPR's reports under the Exchange Act, delivered to the
Lenders from the Borrower or Guarantor, none of the partners, officers,
trustees, managers, members, directors, or employees of the Borrower,
Guarantor or any of their Subsidiaries is a party to any material agreement
with the Borrower, Guarantor or any of their Subsidiaries (other than for
services as partners, managers, members, employees, officers and
directors), including any such agreement providing for the furnishing of
services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any partner, officer,
trustee, director or such employee or, to the knowledge of the Borrower or
Guarantor, any corporation, partnership, trust or other entity in which any
partner, officer, trustee, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner, which are on terms
materially less favorable to the Borrower, Guarantor or any of their
Subsidiaries than those that would be obtained in a comparable arms-length
transaction.
ss.6.16 EMPLOYEE BENEFIT PLANS. The Borrower, Guarantor and each ERISA
Affiliate has fulfilled its obligation, if any, under the minimum funding
standards of ERISA and the Code with respect to each Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code with respect to each Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan. Neither the Borrower, Guarantor nor any ERISA
Affiliate has (a) sought a waiver of the minimum funding standard under
ss.412 of the Code in respect of any Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan, (b) failed to make any contribution or
payment to any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan, or made any amendment to any Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Code, or (c) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under ss.4007
of ERISA. None of the Mortgaged Properties constitutes (or Theatre Assets
will constitute, after giving effect to the Acquisition Agreements) a "plan
asset" of any Employee Plan, Multiemployer Plan or Guaranteed Pension Plan.
ss.6.17 DISCLOSURE. All of the representations and warranties made by
or on behalf of the Borrower, the Guarantor and their Subsidiaries in this
Agreement, the other Loan Documents, the Acquisition Agreements or any
document or instrument delivered to the Agent or the Lenders pursuant to or
in connection with any thereof are true and correct in all material
respects, and neither the Borrower nor Guarantor has failed to disclose
such information as is necessary to make such representations and
warranties not misleading. There is no material fact or circumstance that
has not been disclosed to the Agent and the Lenders or in EPR's Exchange
Act reports delivered by Borrower or Guarantor to Lender herewith, and the
written information, reports and other papers and data with respect to the
Borrower, any Subsidiary, Guarantor, the Mortgaged Properties or the
Theatre Assets (other than projections and estimates) furnished to the
Agent or the Lenders in connection with this Agreement or the obtaining of
the Commitments of the Lenders hereunder was, at the time so furnished,
complete and correct in all material respects, or has been subsequently
supplemented by other written information, reports or other papers or data,
to the extent necessary to give in all material respects a true and
accurate knowledge of the subject matter in all material respects; provided
that such representation shall not apply to (a) the accuracy of any
engineering and environmental reports prepared by third parties or legal
conclusions or analysis provided by the Borrower's and/or Guarantor's
counsel (although the Borrower and the Guarantor have no reason to believe
that the Agent and the Lenders may not rely on the accuracy thereof) (b)
budgets, projections and other forward-looking speculative information
prepared in good faith by the Borrower or Guarantor (except to the extent
the related assumptions were when made manifestly unreasonable), or (c) any
Third Party Information.
ss.6.18 TRADE NAME; PLACE OF BUSINESS. Neither the Borrower nor
Guarantor uses any trade name and conducts business under any name other
than its actual name set forth in the Loan Documents. The principal place
of business of each of the Borrower and Guarantor is as set forth in ss.19
herein, and neither Borrower nor Guarantor will change its principal place
of business without first notifying Agent.
ss.6.19 REGULATIONS T, U AND X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations T, U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.
Neither the Borrower nor Guarantor is engaged, nor will it engage,
principally or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any "margin
security" or "margin stock" as such terms are used in Regulations T, U and
X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
220, 221 and 224.
ss.6.20 ENVIRONMENTAL COMPLIANCE. The Borrower and Guarantor have
taken all commercially reasonable steps to investigate the past and present
conditions and usage of the Mortgaged Properties and the Theatre Assets and
the operations conducted thereon and, except as specifically set forth in
the written environmental site assessment reports of the Environmental
Engineer provided to the Agent on or before the date hereof, or in the case
of Real Estate acquired after the date hereof by Borrower, Guarantor or
their Subsidiaries, the environmental site assessment reports with respect
thereto provided to the Agent, makes the following representations and
warranties:
(a) Neither the Borrower, Guarantor, their Subsidiaries nor to
the best knowledge and belief of Borrower, Guarantor or their
Subsidiaries any operator of the Real Estate, nor any operations
thereon, is in violation, or alleged violation, of any judgment,
decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising
under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state
or local statute, regulation, ordinance, order or decree relating to
the environment (hereinafter "ENVIRONMENTAL LAWS"), which violation
(i) involves Real Estate (other than the Mortgaged Properties or the
Theatre Assets) and would have a Material Adverse Effect or (ii)
involves Mortgaged Property or the Theatre Assets.
(b) Neither the Borrower, Guarantor nor any of their Subsidiaries
has received notice from any third party including, without
limitation, any federal, state or local governmental authority, (i)
that it has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List,
40 C.F.R. Part 300 Appendix B (1986); (ii) that any hazardous waste,
as defined by 42 U.S.C. ss.9601(5), any hazardous substances as
defined by 42 U.S.C. ss.9601(14), any pollutant or contaminant as
defined by 42 U.S.C. ss.9601(33) or any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("HAZARDOUS Substances") which it has generated,
transported or disposed of have been found at any site at which a
federal, state or local agency or other third party has conducted or
has ordered that the Borrower, Guarantor or any of their Subsidiaries
conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it is or shall be a
named party to any claim, action, cause of action, complaint, or legal
or administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses
or damages of any kind whatsoever in connection with the release of
Hazardous Substances.
(c) (i) No portion of the Real Estate or the Theatre Assets has
been used for the handling, processing, storage or disposal of
Hazardous Substances except in accordance with applicable
Environmental Laws, and no underground tank or other underground
storage receptacle for Hazardous Substances is located on any portion
of the Real Estate or the Theatre Assets except those which are being
operated and maintained in compliance with Environmental Laws; (ii) in
the course of any activities conducted by the Borrower, Guarantor,
their Subsidiaries or, to the best knowledge and belief of the
Borrower and Guarantor, the operators of their properties, no
Hazardous Substances have been generated or are being used on the Real
Estate or the Theatre Assets except in the ordinary course of business
and in accordance with applicable Environmental Laws; (iii) there has
been no past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping (other than the storing of materials in
reasonable quantities to the extent necessary for the operation of a
Megaplex Movie Theatre in the ordinary course of business, and in any
event in compliance with all Environmental Laws) (a "RELEASE") or
threatened Release of Hazardous Substances on, upon, into or from the
Mortgaged Properties or the Theatre Assets, which Release would have a
material adverse effect on the value of such Mortgaged Properties or
the Theatre Assets or adjacent properties, or from any other Real
Estate, which Release could have a Material Adverse Effect; (iv)
except as set forth on SCHEDULE 6.20 hereto, there have been no
Releases on, upon, from or into any real property in the vicinity of
any of the Real Estate or the Theatre Assets which, through soil or
groundwater contamination, may have come to be located on, and which
would have a material adverse effect on the value of, the Real Estate
or the Theatre Assets; and (v) any Hazardous Substances that have been
generated on any of the Real Estate or the Theatre Assets have been
transported off-site in accordance with all applicable Environmental
Laws. The representation set forth in this ss.6.20(c) with respect to
activities of lessees and other third parties unrelated to Borrower or
Guarantor shall be limited to the best knowledge and belief of the
Borrower and the Guarantor.
(d) To the best knowledge of each of the Borrower, Guarantor or
their Subsidiaries, none of the Borrower, Guarantor, their
Subsidiaries and the Real Estate or the Theatre Assets is subject to
any applicable Environmental Law requiring the performance of
Hazardous Substances site assessments, or the removal or remediation
of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an
environmental disclosure document or statement in each case by virtue
of the transactions set forth herein and contemplated hereby, or as a
condition to the recording of the Mortgages or to the effectiveness of
any other transactions contemplated hereby except for such matters
that shall be complied with as of the Closing Date.
(e) To the best knowledge of Borrower, Guarantor and their
Subsidiaries, the Borrower has not acquired any actual knowledge of
any existing or closed sanitary landfills, solid waste disposal sites,
or hazardous waste treatment, storage or disposal facilities on or
affecting the Real Estate or the Theatre Assets.
(f) There has been no claim received by Borrower, Guarantor or
their Subsidiaries by any party that any use, operation, or condition
of the Real Estate or the Theatre Assets has caused any nuisance or
any other liability or adverse condition on any other property which
could reasonably be expected to have a Material Adverse Effect, nor is
there any knowledge of any basis for such a claim.
(g) In the event that any event or circumstance described in
ss.6.20 shall occur with respect to any Real Estate of Borrower,
Guarantor or their Subsidiaries after the date hereof that Borrower is
permitted to address pursuant to ss.8.6, or that is being remedied by
Tenant, such event or circumstance shall not constitute a
misrepresentation of Borrower at any time the representations and
warranties under this ss.6.20 are repeated or deemed repeated;
provided further that the foregoing shall not limit the requirement
that such representations with respect to Mortgaged Properties or the
Theatre Assets be correct when such properties are accepted as
collateral hereunder or under the Fleet Agreement, as the case may be.
ss.6.21 SUBSIDIARIES. The Guarantor does not have nor during any time
that any Obligations are outstanding, shall the Guarantor have any
Subsidiaries. SCHEDULE 6.21(A) sets forth, as of the date hereof, all of
the Subsidiaries of the Borrower, the form and jurisdiction of organization
of each of the Subsidiaries, and the owners of the direct and indirect
ownership interests therein. SCHEDULE 6.21(B) sets forth, as of the date
hereof, all of the Affiliates of the Borrower, the Guarantor and their
Subsidiaries that are not also Subsidiaries, the form and jurisdiction of
organization of each of the Affiliates, Guarantor's or their Subsidiary's
ownership interest therein and the other owners of the applicable
Affiliates. No Person owns any legal, equitable or beneficial interest in
any of the Persons set forth on SCHEDULES 6.21(A) and 6.21(B) except as set
forth on such Schedules.
ss.6.22 LEASES. The Borrower has delivered to the Agent true copies of
the Leases relating to each Theatre Asset as of the date hereof. An
accurate and complete Rent Roll and Lease Summary with respect to all
Leases of any portion of the Theatre Assets has been provided to the Agent.
The Leases reflected on such Rent Roll constitute as of the date thereof
the sole agreements relating to leasing or licensing of space at such
Theatre Assets and in the Building relating thereto. No tenant is entitled
to any free rent, partial rent, rebate of rent payments, credit, offset or
deduction in rent, including, without limitation, lease support payments or
lease buy-outs, except as reflected in such Rent Roll or the applicable
Lease. Except as set forth in SCHEDULE 6.22 or the applicable estoppel, the
Leases with respect to the Theatre Assets are in full force and effect in
accordance with their terms, without any payment default or any other
material default thereunder, nor are there any defenses, counterclaims,
offsets, concessions or rebates available to any tenant thereunder, except
as provided in the applicable Leases or to the extent Guarantor has
knowledge thereof, neither the Borrower nor Guarantor has given or made,
any notice of any payment or other material default, or any claim, which
remains uncured or unsatisfied, with respect to any of the Leases, and to
the best of the knowledge and belief of the Borrower, there is no basis for
any such claim or notice of default by any tenant. No property other than
the Theatre Asset which is the subject of the applicable Lease is necessary
to comply with the requirements (including, without limitation, parking
requirements) contained in such Lease.
ss.6.23 PROPERTY. All of the Mortgaged Properties and the Theatre
Assets are in good condition and working order subject to ordinary wear and
tear and casualty and condemnation permitted in the Loan Documents. All of
the other Real Estate of the Borrower, Guarantor and their Subsidiaries is
in good condition and working order subject to ordinary wear and tear and
casualty and condemnation permitted in the Loan Documents, except for such
portion of such Real Estate which is not occupied by any tenant and where
such failure would not have a Material Adverse Effect. Such Real Estate,
and the use and operation thereof, is in material compliance with all
applicable zoning, building codes and other applicable governmental
regulations. There are no unpaid or outstanding real estate or other taxes
or assessments on or against any of the Theatre Assets which, after giving
effect to the Acquisition Agreements, are payable by the Borrower or
Guarantor (except only real estate or other taxes or assessments, that are
not yet delinquent or are being protested as permitted by this Agreement or
the applicable Leases). There are no unpaid or outstanding real estate or
other taxes or assessments on or against any other property of the
Borrower, the Guarantor or any of their Subsidiaries which are payable by
any of such Persons in any material amount (except only real estate or
other taxes or assessments, that are not yet delinquent or are being
protested as permitted by this Agreement). There are no pending eminent
domain proceedings against the Theatre Assets or any property of the
Borrower, the Guarantor or their Subsidiaries or any part thereof, and, to
the knowledge of the Borrower, no such proceedings are presently threatened
by any taking authority which may individually or in the aggregate have any
Material Adverse Effect. None of the Theatre Assets or the property of the
Borrower, the Guarantor or their Subsidiaries is now damaged as a result of
any fire, explosion, accident, flood or other casualty in any manner which
individually or in the aggregate would have any Material Adverse Effect.
ss.6.24 BROKERS. Neither the Borrower, Guarantor nor any of their
Subsidiaries has engaged or otherwise dealt with any broker, finder or
similar entity in connection with this Agreement or the Loans contemplated
hereunder.
ss.6.25 OTHER DEBT. None of the Borrower or any of its Subsidiaries is
in default of the payment of any Indebtedness in an amount equal to or
greater than $1,000,000.00 in the aggregate, or the material performance of
any related agreement, mortgage, deed of trust, security agreement,
financing agreement, indenture or lease to which any of them is a party.
Neither the Borrower nor the Guarantor is a party to or bound by any
agreement, instrument or indenture that may require the subordination in
right or time or payment of any of the Obligations to any other
indebtedness or obligation of the Borrower. SCHEDULE 6.25 hereto sets forth
all agreements, mortgages, deeds of trust, financing agreements or other
material agreements binding upon the Borrower or Guarantor or their
Subsidiaries or their respective properties and entered into by the
Borrower and/or Guarantor as of the date of this Agreement with respect to
any Indebtedness of the Borrower or Guarantor or any of its Subsidiaries in
an amount equal to or greater than $1,000,000.00, in the aggregate, and the
Borrower has provided the Agent with true, correct and complete copies
thereof.
ss.6.26 SOLVENCY. As of the Closing Date and after giving effect to
the transactions contemplated by this Agreement and the other Loan
Documents, including all Loans made or to be made hereunder, neither the
Borrower nor Guarantor is insolvent on a balance sheet basis such that the
sum of such Person's assets exceeds the sum of such Person's liabilities,
the Borrower and Guarantor are able to pay their debts as they become due,
and the Borrower and Guarantor have sufficient capital to carry on their
business.
ss.6.27 NO BANKRUPTCY FILING. Neither the Borrower or Guarantor is
contemplating either the filing of a petition by it under any state or
federal bankruptcy or insolvency laws or the liquidation of its assets or
property, and the Borrower has no knowledge of any Person contemplating the
filing of any such petition against it or Guarantor.
ss.6.28 NO FRAUDULENT INTENT. Neither the execution and delivery of
this Agreement, the Acquisition Agreements or any of the other Loan
Documents nor the performance of any actions required hereunder or
thereunder is being undertaken by the Borrower or Guarantor or any of their
Subsidiaries with or as a result of any actual intent by any of such
Persons to hinder, delay or defraud any entity to which any of such Persons
is now or will hereafter become indebted.
ss.6.29 TRANSACTION IN BEST INTERESTS OF OBLIGOR; CONSIDERATION. The
transaction evidenced by this Agreement and the other Loan Documents is in
the best interests of the Borrower, Guarantor and their Subsidiaries. The
direct and indirect benefits to inure to the Borrower, its Subsidiaries,
the Guarantor and its Subsidiaries pursuant to this Agreement and the other
Loan Documents constitute substantially more than "reasonably equivalent
value" (as such term is used in ss.548 of the Bankruptcy Code) and
"valuable consideration," "fair value," and "fair consideration," (as such
terms are used in any applicable state fraudulent conveyance law), in
exchange for the benefits to be provided by the Borrower and its
Subsidiaries pursuant to this Agreement and the other Loan Documents, and
but for the willingness of Guarantor to guaranty the Loan, the Borrower
would be unable to obtain the financing contemplated hereunder which
financing will enable the Borrower and its Subsidiaries to have available
financing to conduct and expand their business.
ss.6.30 CAPITALIZATION. The authorized membership interest of
Guarantor is owned 100% by EPR.
ss.6.31 NOTICE OF REIT STATUS. EPR shall give each Lender notice in
the event it does not maintain its status as a REIT or takes any action
which could lead to its disqualification as a REIT.
ss.6.32 INTENTIONALLY DELETED.
ss.6.33 CERTIFICATES OF OCCUPANCY; LICENSES. All certificates of
completion and occupancy permits and, to the best knowledge of Borrower,
all other certifications, permits, licenses and approvals, including any
applicable liquor license required for the legal use, occupancy and
operation of each of the Mortgaged Properties and the Theatre Assets as a
Megaplex Movie Theatre and all appurtenant and related uses (collectively,
the "LICENSES"), have been obtained and are in full force and effect.
ss.6.34 INSURANCE. Borrower shall, in connection with the closing
hereunder and prior to the expiration of any insurance required hereunder,
deliver to the Agent and Lenders certificates of any insurance required
hereunder evidencing the existence of such insurance, which such
certificates shall be in form and substance reasonably satisfactory to
Agent and Lenders, it being agreed that such insurance and certificates may
be maintained by a Tenant at each of the Mortgaged Properties and the
Theatre Assets. Insurance certificates which comply with the terms of the
applicable Leases approved by Agent shall be deemed acceptable to Agent and
Lenders.
ss.6.35 REAFFIRMATION OF REPRESENTATIONS. Each of the Borrower and
Guarantor hereby restates and reaffirms each of the representations and
warranties made by Borrower or Guarantor set forth in any of the
Acquisition Agreements as if the same were fully set forth herein, it being
understood and agreed that any representation or warranty which by its
terms is made as of a specified date (other than that made as of the
closing date) shall be required to be true and correct only as of such
specified date.
ss.7. AFFIRMATIVE COVENANTS.
Each of the Borrower and Guarantor (as applicable) covenants and agrees to
the following, so long as any Obligation, Loan or Note is outstanding or any of
the Lenders have any obligation to make any Loans:
ss.7.1 PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans and all interest
and fees provided for in this Agreement, all in accordance with the terms
of this Agreement and the Notes, as well as all other sums owing pursuant
to the Loan Documents.
ss.7.2 MAINTENANCE OF OFFICE. The Borrower and Guarantor will maintain
its respective chief executive office at 30 Pershing Road, Suite 201,
Kansas City, MO, 64108, or at such other place in the United States of
America as the Borrower or Guarantor shall designate prior to any such
change in location by written notice to the Agent and the Lenders, where
notices, presentations and demands to or upon the Borrower or Guarantor in
respect of the Loan Documents may be given or made.
ss.7.3 RECORDS AND ACCOUNTS. The Borrower and Guarantor will (a) keep,
and cause each of its Subsidiaries to keep, proper records and books of
account in which true and correct entries will be made in accordance with
GAAP and (b) maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation and amortization of its properties
and the properties of its Subsidiaries, contingencies and other reserves.
Neither the Borrower, Guarantor nor any of their Subsidiaries shall,
without the prior written consent of the Required Lenders, (x) make any
material change to the accounting procedures used by such Person in
preparing the financial statements and other information described in
ss.6.4 or ss.7.4, except as required by SEC Rules or interpretations
thereof or accounting industry pronouncements or (y) change its fiscal
year.
ss.7.4 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. Borrower
will deliver or cause to be delivered to the Agent with sufficient copies
for each of the Lenders:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of Borrower,
commencing with the fiscal year ending December 31, 2003, the audited
Consolidated balance sheet of Borrower and its Consolidated
Subsidiaries at the end of such year, and the related audited
Consolidated statements of income, changes in capital and cash flows
for such year, each setting forth in comparative form the figures for
the previous fiscal year and all such statements to be in reasonable
detail, prepared in accordance with GAAP, and accompanied by an
auditor's report prepared without qualification as to the scope of the
audit by a "Big Four" accounting firm or another nationally recognized
firm acceptable to the Agent (the foregoing with respect to EPR may be
satisfied by delivery of the Form 10-K of EPR filed with the SEC,
PROVIDED, HOWEVER, that in no event shall any reference to any prior
10-Ks or Proxy Statements which may be incorporated by reference
within the filings then being delivered to Agent be deemed delivered
to Agent nor shall any such information contained in any such prior
filings be deemed delivered to Agent), and any other information the
Agent may reasonably request to complete a financial analysis of the
Borrower and its Subsidiaries, together with a written statement from
such accountants to the effect that they have read this Agreement, and
that, in making the examination necessary to said certification, they
have obtained no knowledge of any Default or Event of Default, or, if
such accountants shall have obtained knowledge of any Default or Event
of Default they shall disclose in such statement any such Default or
Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each fiscal quarter (including
the fourth quarter) of Borrower, copies of the unaudited Consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of
such quarter, and the related unaudited Consolidated statements of
income and cash flows for the portion of Borrower's fiscal year then
elapsed, all in reasonable detail and prepared in accordance with GAAP
(the foregoing with respect to EPR and its Subsidiaries may be
satisfied by delivery of the Form 10-Q of EPR filed with the SEC
PROVIDED, HOWEVER, that in no event shall any reference to any prior
10-Qs or Proxy Statements which may be incorporated by reference
within the filings then being delivered to Lenders be deemed delivered
to a Lender nor shall any such information contained in any such prior
filings be deemed delivered to a Lender), together with a
certification by the chief financial officer or accounting officer of
Borrower that the information contained in such financial statements
fairly presents the financial position of the Borrower and its
Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement (a
"COMPLIANCE CERTIFICATE") certified by the chief financial officer or
chief accounting officer of Borrower in the form of EXHIBIT K hereto
(or in such other form as the Agent may approve from time to time)
setting forth in reasonable detail computations evidencing compliance
or non-compliance (as the case may be) with the covenants contained in
ss.9 and the other covenants described in such certificate and (if
applicable) setting forth reconciliations to reflect changes in GAAP
since the Balance Sheet Date. All income, expense and value associated
with Real Estate or other Investments disposed of during any quarter
will be eliminated from calculations, where applicable. The Compliance
Certificate shall be accompanied by copies of the statements of the
Mortgaged Property Net Operating Income for such fiscal quarter and on
a trailing four-quarter basis for each of the Mortgaged Properties,
prepared on a basis consistent with the statements furnished under the
Fleet Agreement prior to the date hereof and otherwise in form and
substance reasonably satisfactory to the Agent, together with a
certification by the chief financial officer or chief accounting
officer of Borrower that the information contained in such statement
fairly presents the Mortgaged Property Net Operating Income of the
Mortgaged Properties for such periods;
(d) contemporaneously with the delivery of the financial
statements referred to in clause (a) above, the statement of all
contingent liabilities involving amounts of $1,000,000.00 or more of
the Borrower, Guarantor and their Subsidiaries which are not reflected
in such financial statements or referred to in the notes thereto
(including, without limitation, all guaranties, endorsements and other
contingent obligations in respect of the indebtedness of others, and
obligations to reimburse the issuer in respect of any letters of
credit);
(e) as soon as practicable but in any event not later than
forty-five (45) days after the end of each fiscal quarter of Borrower
(including the fourth fiscal quarter in each year), a Rent Roll for
each of the Mortgaged Properties and the Theatre Assets and a
Consolidated operating statement for the Mortgaged Properties and the
Theatre Assets, and a copy of each Lease or amendment entered into
with respect to a Mortgaged Property or the Theatre Assets during such
quarter;
(f) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature, reports or proxy statements
sent to the shareholders of the Borrower;
(g) Intentionally deleted;
(h) promptly upon the filing hereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent);
(i) Intentionally Deleted;
(j) evidence reasonably satisfactory to Agent of the timely
payment of all real estate taxes for the Theatre Assets;
(k) not later than November 15 of each year, the cash flow
projections of the Borrower, Guarantor and their Subsidiaries for the
next three years;
(l) from time to time such other financial data and information
in the possession of the Borrower, Guarantor or their Subsidiaries
(including without limitation auditors' management letters, status of
litigation or investigations against the Borrower and any settlement
discussions relating thereto, property inspection and environmental
reports and information as to zoning and other legal and regulatory
changes affecting the Borrower or Guarantor) as the Agent may
reasonably request. Information concerning such litigation or
settlement discussions shall not include attorney-client privileged
communications, but shall otherwise include information which may be
confidential or subject to a work-product privilege so that the Agent
and the Lenders receive the same level of disclosure from the Borrower
with respect to such matters as has been made under the Fleet
Agreement prior to the Closing Date.
(m) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that
Borrower or Guarantor shall have filed with the Commission (or any
Governmental Authority substituted therefor) or any national
securities exchange, including each Form 8-K, Form 10-K and Form 10-Q
filed with the Commission.
(n) as soon as is reasonably practicable, but in any event not
later than forty-five (45) days after the end of each fiscal quarter
(including the fourth quarter), statements of Exhibitor's EBITDAR for
the prior quarter and for the trailing four quarters.
ss.7.5 NOTICES.
(a) DEFAULTS. The Borrower and Guarantor will each immediately
upon obtaining actual knowledge of same notify the Agent in writing of
the occurrence of any Default or Event of Default, which notice shall
describe such occurrence with reasonable specificity and shall state
that such notice is a "notice of default or event of default". If any
Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default)
under this Agreement or under any note, evidence of indebtedness,
indenture or other obligation to which or with respect to which the
Borrower, Guarantor or any of their Subsidiaries is a party or
obligor, whether as principal or surety, and such default would permit
the holder of such note or obligation or other evidence of
indebtedness to accelerate the maturity thereof, which acceleration
would either cause a Default or have a Material Adverse Effect, the
Borrower or Guarantor shall promptly give written notice thereof to
the Agent and each of the Lenders, describing the notice or action and
the nature of the claimed default.
(b) ENVIRONMENTAL EVENTS. The Borrower and Guarantor will each
give notice to the Agent within five (5) Business Days of obtaining
actual knowledge of (i) any potential or known Release, or threat of
Release, of any Hazardous Substances in an amount that may be required
to be contained, removed or otherwise remediated at or from any Real
Estate; (ii) any violation of any Environmental Law that the Borrower,
Guarantor or any of their Subsidiaries reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any federal, state or
local environmental agency or (iii) any inquiry, proceeding,
investigation, or other action, including a notice from any agency of
potential environmental liability, of any federal, state or local
environmental agency or board, that in either case involves (A) any
Mortgaged Property, (B) any other Real Estate and could reasonably be
expected to have a Material Adverse Effect, (C) any Theatre Asset or
(D) or the Agent's liens or security interests or title on the
Potential Collateral.
(c) NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The Borrower and
Guarantor will each give notice to the Agent in writing within five
(5) Business Days of obtaining actual knowledge of any material
setoff, claims (including environmental claims), withholdings or other
defenses to which any of the Potential Collateral, or the rights of
the Agent or the Lenders with respect to the Potential Collateral, are
subject.
(d) NOTICE OF LITIGATION AND JUDGMENTS. The Borrower and
Guarantor will each give notice to the Agent in writing within five
(5) Business Days of obtaining actual knowledge of any litigation or
proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, Guarantor or any of their
Subsidiaries or to which the Borrower, Guarantor or any of their
Subsidiaries is or is to become a party involving an uninsured claim
against any of the Borrower, Guarantor or any of their Subsidiaries
that could reasonably be expected to have a Material Adverse Effect
and stating the nature and status of such litigation or proceedings.
The Borrower and Guarantor will each give notice to the Agent, in
writing, in form and detail reasonably satisfactory to the Agent and
each of the Lenders, within ten days of any judgment not covered by
insurance, whether final or otherwise, against any of the Borrower,
Guarantor or any of their Subsidiaries in an amount in excess of
$1,000,000 in the aggregate, except that notice is not required
hereunder for EPR unless such amount exceeds $5,000,000 in the
aggregate.
(e) NOTICE OF PROPOSED SALES, ENCUMBRANCES, REFINANCE OR TRANSFER
OF NON-MORTGAGED Property. The Borrower and Guarantor will each give
notice to the Agent of any completed sale, encumbrance, refinance or
transfer of any Real Estate in amounts exceeding $5,000,000.00 (other
than the Mortgaged Properties) or other Investments of the type
described in ss.8.3(i) of the Guarantor or EPR, within any fiscal
quarter of Borrower, such notice to be submitted together with the
Compliance Certificate provided or required to be provided to the
Agent and the Lenders under ss.7.4 with respect to such fiscal
quarter. The Compliance Certificate shall with respect to any
completed sale, encumbrance, refinance or transfer be adjusted in the
best good faith estimate of Borrower to give effect to such sale,
encumbrance, refinance or transfer and demonstrate that no Default or
Event of Default with respect to the covenants referred to therein
shall exist after giving effect to such sale, encumbrance, refinance
or transfer. Notwithstanding the foregoing, in the event of any sale,
encumbrance, refinance or transfer of any Real Estate or other
Investment of the type described in ss.8.3(i) involving Real Estate or
such other Investment by EPR in an amount in excess of $25,000,000 per
quarter, the Borrower shall promptly give notice to the Agent of such
transaction, which notice shall be accompanied by a Compliance
Certificate prepared using the financial statements of Borrower most
recently provided or required to be provided to the Agent and the
Lenders under ss.6.4 or ss.7.4, adjusted as provided in this
paragraph.
(f) ERISA. The Borrower will give notice to the Agent within five
(5) Business Days after the Borrower or any ERISA Affiliate (i) gives
or is required to give notice to the PBGC of any "reportable event"
(as defined in ss.4043 of ERISA) with respect to any Guaranteed
Pension Plan, Multiemployer Plan or Employee Benefit Plan, or knows
that the plan administrator of any such plan has given or is required
to give notice of any such reportable event; (ii) gives a copy of any
notice of complete or partial withdrawal liability under Title IV of
ERISA; or (iii) receives any notice from the PBGC under Title IV or
ERISA of an intent to terminate or appoint a trustee to administer any
such plan.
(g) NOTIFICATION OF LENDERS. Within five (5) Business Days after
receiving any notice under this ss.7.5, the Agent will forward a copy
thereof to each of the Lenders, together with copies of any
certificates or other written information that accompanied such
notice.
ss.7.6 EXISTENCE; MAINTENANCE OF PROPERTIES.
(a) The Guarantor will preserve and keep in full force and effect
its status as a Special Purpose Entity, as set forth in Section 6.1(a)
herein. EPR will preserve and keep in full force and effect its
existence as a Maryland real estate investment trust. The Borrower and
Guarantor will cause each of their Subsidiaries to preserve and keep
in full force and effect their legal existence in the jurisdiction of
its incorporation or formation. The Borrower will preserve and keep in
full force all of its rights and franchises and those of its
Subsidiaries, the preservation of which is necessary to the conduct of
their business. Guarantor shall at all times comply with all
requirements and applicable laws, guidelines and regulations necessary
to maintain its Special Purpose Entity status. EPR shall at all times
comply with all requirements and applicable laws and regulations
necessary to maintain REIT status. The common shares of EPR shall at
all times be listed for trading and be traded on the New York Stock
Exchange (NYSE), unless otherwise consented to by the Required
Lenders.
(b) The Guarantor and EPR, as applicable, (i) will cause all of
its properties and those of its Subsidiaries used or useful in the
conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all necessary
equipment, and (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof in all
cases in which the failure so to do would have a material adverse
effect on the condition of any Theatre Asset or Mortgaged Property or
would cause a Material Adverse Effect. Without limitation of the
obligations of the Borrower under this Agreement with respect to the
maintenance of the Theatre Assets and Mortgaged Properties, the
Borrower shall promptly and diligently comply with the recommendations
of the Environmental Engineer concerning the maintenance, operation or
upkeep of the Theatre Assets and Mortgaged Properties contained in the
building inspection and environmental reports delivered to the Agent
or otherwise obtained by Borrower or Guarantor. This Section 7.6(b)
shall be subject, however, to any provisions in the applicable Leases
regarding restriction of Guarantor, EPR or the applicable
Subsidiaries, to make such repairs, renewals, replacements, etc.
ss.7.7 INSURANCE.
(a) The Borrower and Guarantor will procure and maintain or cause
to be procured and maintained (i) insurance covering the Borrower and
the Guarantor and their Subsidiaries, the Theatre Assets, upon
acquisition thereof by Guarantor, the Mortgaged Properties and its
properties (the cost of such insurance to be borne by the insured
thereunder) with financially sound and reputable insurers (or
self-insurance provided by creditworthy tenants) in such amounts and
against such risks and casualties as are customary for properties of
similar character and location, due regard being given to the type of
improvements thereon, their construction, location, use and occupancy,
and, upon the Theatre Assets becoming collateral for the Obligations,
insuring the interests of the Lenders pursuant to this Agreement, and
(ii) such insurance as is required by the Required Lenders, including
without limitation, the following with respect to each of the Theatre
Assets, upon acquisition thereof by Guarantor, and the Mortgaged
Properties provided that the coverage in place as required in the
applicable Leases for the Mortgaged Properties or the Theatre Assets
shall be deemed acceptable to the Required Lenders and deemed to meet
the requirements set forth in this Section 7.7:
(i) Property insurance for each of the Mortgaged Properties
and the Theatre Assets, upon acquisition thereof by Guarantor,
will be maintained by the Tenant under each of the applicable
leases for such property at Tenant's sole cost and expense, for
the mutual benefit of such tenant, Borrower and, upon the Theatre
Assets becoming collateral for the Obligations, the Agent and the
Lenders. The requirements as specified in the applicable lease
will be the required coverage under this Agreement for the
property to which such lease relates.
(ii) Commercial general liability insurance against claims
for personal injury, bodily injury, death or property damage
occurring upon, in or about each such property, such insurance
(A) to be the so-called "occurrence" form with a combined limit
of not less than Five Million Dollars ($5,000,000) in the
aggregate and One Million Dollars ($1,000,000) per occurrence;
(B) to continue at not less than the aforesaid limit until
required to be changed by the Required Lenders in writing by
reason of changed economic conditions making such protection
inadequate; and (C) to cover at least the following hazards: (1)
premises and operations; (2) products and completed operations on
an "if any" basis; (3) independent contractors; (4) blanket
contractual liability for all legal contracts; and (5)
contractual liability covering the indemnities contained in the
applicable mortgages, to the extent the same is available.
(iii) Automobile liability coverage for all owned and
non-owned vehicles, including rented and leased vehicles
containing minimum limits per occurrence of One Million Dollars
($1,000,000).
(iv) Worker's compensation and employee's liability
insurance subject to the worker's compensation laws of the
applicable state.
(v) Umbrella liability insurance in an amount not less than
Fifty Million Dollars ($50,000,000) per occurrence on terms
consistent with the commercial general liability insurance policy
required under subsection (ii) above, including supplemental
coverage for commercial general liability, employer's liability
and automobile liability.
(vi) Rent loss or business interruption insurance in an
amount equal to one year's projected revenues.
(vii) Flood Insurance if the Mortgaged Property or Theatre
Asset (when acquired) is located in a flood prone or flood prone,
flood risk or flood hazard area as designated pursuant to the
Federal Flood Disaster Protection Act of 1978, as amended, and
the regulations thereunder, or if otherwise reasonably required
by Agent.
(viii) Such other insurance coverages on the events as the
Agent or the Required Lenders may request consistent with
customary practice for similar properties.
(b) The Borrower shall, prior to the expiration of any insurance
required hereunder, deliver to Agent evidence of insurance evidencing
the existence of all such insurance, such certificates to be in form
and substance reasonably satisfactory to Agent, it being agreed that
such insurance certificates may be maintained by the Tenant under its
applicable lease for the Mortgaged Property or Theatre Assets (when
acquired).
(c) All insurance provided for in Section 7.7(a) above shall be
obtained under valid and enforceable policies (collectively, the
"POLICIES" or in the singular, the "POLICY"), and shall be subject to
the approval of Agent as to insurance companies, amounts, deductibles,
loss payees and insureds. The Policies shall be issued by financially
sound and responsible insurance companies authorized to do business in
the applicable state and having a financial strength rating of not
less than the better of A- and "A2" or better by the Rating Agencies
selected by Agent. The Policies described in Section 7.7(a) shall,
with respect to the Theatre Assets if they become collateral
hereunder, designate Agent for the benefit of the Lenders as
additional insured on all applicable policies of liability insurance
and shall include a loss payable clause and standard non-contributing
mortgagee clause in favor of Agent for the benefit of the Lenders
providing that any loss thereunder shall be payable to the Agent for
the benefit of the Lenders. Not less than ten (10) days prior to the
expiration dates of the Policies theretofore furnished to Agent,
Borrower shall cause certificates of insurance evidencing the Policies
specified in 7.7(a) accompanied by evidence satisfactory to Agent of
payment of the premiums due thereunder (the "INSURANCE PREMIUMS"), to
be delivered by Borrower to Agent.
(d) Any blanket insurance Policy shall specifically allocate to
each individual Mortgaged Property and the Theatre Assets (when
acquired), the amount of coverage from time to time required hereunder
and shall otherwise provide the same protection as would a separate
Policy insuring only the Mortgaged Properties and the Theatre Assets
(when acquired) in compliance with the provisions of Section 7.7(a).
(e) All Policies provided for in Section 7.7(a) shall contain
clauses or endorsements to the effect that:
(i) no act or negligence of any Obligor, or anyone acting
for Obligor, or any tenant or occupant, or failure to comply with
the provisions of any Policy, which might otherwise result in a
forfeiture of the insurance or any part thereof, shall in any way
affect the validity or enforceability of the insurance insofar as
the Agent or any Lender is concerned.
(ii) The Policy shall not be materially changed (other than
to increase the coverage provided thereby) or cancelled without
at least thirty (30) days' written notice to the Agent and the
Lenders and any other party named therein as an additional
insured;
(iii) The issuers thereof shall give written notice to Agent
and the Lenders if the Policy has not been renewed thirty (30)
days prior to its expiration; and
(iv) Neither the Agent nor any Lender shall be liable for
any Insurance Premiums thereon or subject to any assessments
thereunder.
(f) If at any time Agent is not in receipt of written evidence
that all insurance required hereunder is in full force and effect,
Agent shall have the right, without notice to any Obligor, to take
such action as the Agent deems necessary to protect the Lenders'
interest in the Theatre Assets, including the obtaining of such
insurance coverage as Agent in its sole discretion deems appropriate.
All premiums incurred by Agent in connection with such action or in
obtaining such insurance and keeping it in effect shall be paid by
Borrower to Agent upon demand and until paid shall be secured by the
Potential Collateral and bear interest at the Default Rate.
(g) In the event of any loss or damage to the Theatre Assets (if
they become collateral hereunder), the Borrower or the Guarantor shall
give prompt written notice to the insurance carrier and the Agent and
the Lenders. Each of the Borrower and the Guarantor hereby irrevocably
authorizes and empowers the Agent, at the Agent's option and in the
Agent's sole discretion or at the request of the Required Lenders in
their sole discretion, as its attorney in fact, to make proof of such
loss, to adjust and compromise any claim under insurance policies, to
appear in and prosecute any action arising from such insurance
policies, to collect and receive Insurance Proceeds, and to deduct
therefrom the Agent's expenses incurred in the collection of such
Insurance Proceeds; provided, however, that so long as no Default or
Event of Default has occurred and is continuing and so long as the
Borrower or Guarantor shall in good faith diligently pursue such
claim, the Borrower or Guarantor may make proof of loss and appear in
any proceedings or negotiations with respect to the adjustment of such
claim, except that the Borrower or Guarantor may not settle, adjust or
compromise any such claim without the prior written consent of the
Agent, which consent shall not be unreasonably withheld or delayed;
provided, further, that the Borrower or Guarantor may make proof of
loss and adjust and compromise any claim under casualty insurance
policies which is in an amount less than $500,000 so long as no
Default or Event of Default has occurred and is continuing and so long
as the Borrower or Guarantor shall in good faith diligently pursue
such claim. Each of the Borrower and Guarantor further authorizes the
Agent, at the Agent's option, to (i) apply the balance of such
Insurance Proceeds to the payment of the Obligations whether or not
then due, or (ii) if the Agent shall require the reconstruction or
repair of the Theatre Assets (if they become collateral hereunder), to
hold the balance of such proceeds as trustee to be used to pay taxes,
charges, sewer use fees, water rates and assessments which may be
imposed on such property and the Obligations as they become due during
the course of reconstruction or repair of such property and to
reimburse the Borrower or Guarantor, in accordance with such terms and
conditions as the Agent may prescribe, for the costs of reconstruction
or repair of such property, and upon completion of such reconstruction
or repair to apply any excess to the payment of the Obligations.
(h) Notwithstanding the foregoing or anything in the Mortgages
but subject in all events to the terms of the applicable Leases, the
Agent shall make net Insurance Proceeds and Condemnation Proceeds with
respect to the Theatre Assets available to the Borrower or Guarantor
to reconstruct and repair such property, in accordance with such terms
and conditions as the Agent may prescribe in the Agent's discretion
for the disbursement of the proceeds, provided that (i) the cost of
such reconstruction or repair is not estimated by the Agent to exceed
fifty percent (50%) of the replacement cost of the damaged Building
(as reasonably estimated by the Agent), (ii) no Event of Default shall
have occurred and be continuing, (iii) the Borrower or Guarantor shall
have provided to the Agent additional cash security in an amount equal
to the amount reasonably estimated by the Agent to be the amount in
excess of such proceeds which will be required to complete such repair
or restoration, (iv) the Agent shall have approved the plans and
specifications, construction budget, construction contracts, and
construction schedule for such repair or restoration and reasonably
determined that the repaired or restored such property will provide
the Agent with adequate security for the Obligations (provided that
the Agent shall not disapprove such plans and specifications if the
Building is to be restored to its condition immediately prior to such
damage), (v) the Borrower or Guarantor shall have delivered to the
Agent written agreements binding upon the Tenants in possession of any
portion of the affected property or having any right to require
repair, restoration or completion of such property or any portion
thereof, agreeing upon a date for delivery of possession of such
property or their respective portions thereof, to permit time which is
sufficient in the judgment of the Agent for such repair or restoration
and approving the plans and specifications for such repair or
restoration, or other evidence satisfactory to the Agent that none of
such tenants or other parties may terminate their Leases as a result
of such casualty or as a result of having a right to approve the plans
and specifications for such repair or restoration, (vi) the Agent
shall reasonably determine that such repair or reconstruction can be
completed prior to the Maturity Date, (vii) the Agent shall receive
evidence reasonably satisfactory to it that any such restoration,
repair or rebuilding complies in all respects with any and all
applicable state, federal and local laws, ordinances and regulations,
including without limitation, zoning laws, ordinances and regulations,
and that all required permits, licenses and approvals relative thereto
have been or will be issued in a manner so as not to materially impede
the progress of restoration, (viii) the Agent shall receive evidence
reasonably satisfactory to it that the insurer under such policies of
fire or other casualty insurance does not assert any defense to
payment under such policies against the Borrower, Guarantor or the
Agent, and (ix) with respect to any taking or condemnation, Agent
shall determine that following such repair or restoration there shall
be no more than the lesser of (i) a fifty percent (50%) reduction in
occupancy or rental income from such property so affected by such
specific condemnation or taking (excluding any proceeds from rental
loss insurance or proceeds from such award allocable to rent) or (ii)
a fifteen percent (15%) reduction in occupancy or in rental income
from all of the Theatre Assets (excluding any proceeds from rental
loss insurance or proceeds of such award allocable to rent), after
giving effect to the current condemnation or taking and any previous
condemnations or takings which may have occurred. Any excess Insurance
Proceeds shall be paid to the Borrower, or if an Event of Default has
occurred and is continuing, such proceeds shall be applied to the
payment of the Obligations, unless in either case by the terms of the
applicable insurance policy the excess proceeds are required to be
returned to such insurer. Any excess Condemnation Proceeds shall be
applied to the payment of the Obligations. In no event shall the
provisions of this section be construed to extend the Maturity Date or
to limit in any way any right or remedy of the Agent upon the
occurrence of an Event of Default hereunder. If any Theatre Asset is
sold or is acquired by the Agent, all right, title and interest of the
Borrower and Guarantor in and to any insurance policies and unearned
premiums thereon and in and to the proceeds thereof resulting from
loss or damage to such property prior to the sale or acquisition shall
pass to the Agent or any other successor in interest to the Borrower
or purchaser of such property.
(i) The Guarantor will provide to the Agent for the benefit of
the Agent and the Lenders Title Policies for all of the Theatre Assets
upon such becoming collateral hereunder. Each Title Policy shall also
contain, to the extent available, a tie-in endorsement aggregating the
insurance coverage provided under all of the policies issued by the
same title insurance company relating to the Guarantor.
ss.7.8 TAXES; LIENS. The Borrower and the Guarantor will, and will
cause its Subsidiaries to (which shall include permitting the applicable
Tenant to pay directly), duly pay and discharge, or cause to be paid and
discharged, before the same shall become delinquent, all taxes, assessments
and other governmental charges imposed upon them or upon the Theatre Assets
(when acquired), Mortgaged Properties or the other Real Estate, sales and
activities, or any part thereof, or upon the income or profits therefrom as
well as all claims for labor, materials or supplies that if unpaid might by
law become a lien or charge upon any of its property or other Liens
affecting any of the Potential Collateral or other property of Borrower,
the Guarantor or its Subsidiaries, PROVIDED that any such tax, assessment,
charge or levy or claim need not be paid if the validity or amount thereof
shall currently be contested in good faith by Borrower, Guarantor or the
applicable Tenant in accordance with the applicable Lease by appropriate
proceedings which shall suspend the collection thereof with respect to such
property, neither such property nor any portion thereof or interest therein
would be in any danger of sale, forfeiture or loss by reason of such
proceeding and the Borrower, Guarantor or any such Subsidiary shall have
set aside on its books adequate reserves in accordance with GAAP; and
PROVIDED, FURTHER, that forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor, the
Borrower, Guarantor or any such Subsidiary either (i) will provide a bond
issued by a surety reasonably acceptable to the Agent and sufficient to
stay all such proceedings or (ii) if no such bond is provided, will pay
each such tax, assessment, charge or levy.
ss.7.9 INSPECTION OF PROPERTIES AND BOOKS. The Borrower and the
Guarantor will, and will cause their Subsidiaries to, permit the Agent or
any Lender or any representative designated by the Agent or any Lender, at
the Borrower's expense and upon reasonable prior notice, to visit and
inspect any of the properties of the Borrower, Guarantor or any of their
Subsidiaries, to examine the books of account of the Borrower, Guarantor
and their Subsidiaries (and to make copies thereof and extracts therefrom)
and to discuss the affairs, finances and accounts of the Borrower,
Guarantor and their Subsidiaries with, and to be advised as to the same by,
its officers, all at such reasonable times and intervals as the Agent or
any Lender may reasonably request, provided that so long as no Default or
Event of Default shall have occurred and be continuing, the Borrower shall
not be required to pay for such visits and inspections more often than once
in any twelve (12) month period. The Lenders shall use good faith efforts
to coordinate such visits and inspections so as to minimize the necessity
of multiple site visits to the same geographic location and the
interference with and disruption to the normal business operations of the
Borrower, the Guarantor and their Subsidiaries.
ss.7.10 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower and the Guarantor will, and will cause each of their Subsidiaries
to, comply in all respects with (i) all applicable laws and regulations now
or hereafter in effect wherever its business is conducted, including all
Environmental Laws, (ii) the provisions of its corporate charter,
partnership agreement, limited liability company agreement or declaration
of trust, as the case may be, and other charter documents and bylaws, (iii)
all agreements and instruments to which it is a party or by which it or any
of its properties may be bound, (iv) all applicable decrees, orders, and
judgments, and (v) all licenses and permits required by applicable laws and
regulations for the conduct of its business or the ownership, use or
operation of its properties, except where a failure to so comply with any
of clauses (i) through (v) would not have a Material Adverse Effect. If any
authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or
required in order that the Borrower, Guarantor or their Subsidiaries may
fulfill any of its obligations hereunder, the Borrower, Guarantor or such
Subsidiary will immediately take or cause to be taken all steps necessary
to obtain such authorization, consent, approval, permit or license and
furnish the Agent and the Lenders with evidence thereof.
ss.7.11 FURTHER ASSURANCES. The Borrower and Guarantor will and will
cause each of their Subsidiaries to, cooperate with the Agent and the
Lenders and execute such further instruments and documents as the Lenders
or the Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Agreement and the other Loan
Documents.
ss.7.12 MANAGEMENT. The Borrower shall not and shall not permit any
Guarantor to enter into any management agreement with a third party manager
after the date hereof for any Theatre Asset (after acquisition thereof)
without the prior written consent of the Agent (which shall not be
unreasonably withheld or delayed). Agent may condition any approval of a
manager upon agreement of such manager to execute and deliver to Agent a
collateral assignment of such management agreement to Agent and a
subordination of the manager's rights thereunder to the rights of the Agent
and the Lenders under the Loan Documents if any Theatre Asset becomes
collateral hereunder. There are no currently existing management contracts
for any of the Theatre Assets.
ss.7.13 LEASES OF THE PROPERTY. Except for any Leases effective as of
the date of Guarantor's acquisition of the Theatre Assets, true and
complete copies of which shall have been delivered to the Agent, Guarantor
will not lease all or any portion of a Theatre Asset or amend, supplement
or otherwise modify, terminate or cancel, or accept the surrender of, or
consent to the assignment or subletting of, or grant any concessions to or
waive the performance of any obligations of any tenant, lessee or licensee
under, any now existing or future Lease of a Theatre Asset without the
prior written consent of the Agent, which such consent may be withheld or
conditioned in Agent's reasonable discretion.
ss.7.14 BUSINESS OPERATIONS. The Borrower, the Guarantor and their
Subsidiaries shall operate their respective businesses in substantially the
same manner and in substantially the same fields and lines of business as
such business is now conducted and in compliance with the terms and
conditions of this Agreement and the Loan Documents.
ss.7.15 REGISTERED SERVICEMARK. Without the prior written consent of
the Agent, none of the Theatre Assets shall be owned or operated by the
Borrower or Guarantor under any registered or protected trademark,
tradename, servicemark or logo. Without limiting the foregoing, the Agent
may, after any Theatre Asset becomes collateral hereunder, condition its
consent to the use of any of the foregoing upon the granting to the Agent
for the benefit of the Lenders of a perfected first priority security
interest therein. Notwithstanding the foregoing, this provision shall not
prevent any applicable Tenant from operating the Theatre Assets under its
trademarks and tradenames or service marks.
ss.7.16 INTENTIONALLY DELETED.
ss.7.17 DISTRIBUTIONS OF INCOME TO EPR. EPR shall cause its
Subsidiaries to promptly distribute to EPR (but not less frequently than
once each fiscal quarter of EPR, unless otherwise approved by the Agent),
whether in the form of dividends, distributions or otherwise, all profits,
proceeds or other income relating to or arising from its Subsidiaries' use,
operation, financing, refinancing, sale or other disposition of their
respective assets and properties after (a) the payment by each Subsidiary
of its debt service and operating expenses for such quarter and (b) the
establishment of reasonable reserves for the payment of operating expenses
not paid on at least a quarterly basis and capital improvements to be made
to such Subsidiary's assets and properties approved by such Subsidiary in
the ordinary course of business consistent with its past practices, or
reserves required under applicable loan covenants; provided however, that
in the event that an Event of Default shall have occurred and be
continuing, and the maturity of the Obligations has been accelerated,
Guarantor shall not make any Distributions, either directly or indirectly
to EPR, whatsoever.
ss.7.18 THEATRE ASSET APPRAISALS. Borrower and Guarantor shall, within
45 days after the Closing Date, provide a copy of an appraisal (which may
be the appraisal recently delivered to Fleet under the Fleet Agreement) to
the Agent with respect to each Theatre Asset, which appraisal shall be
addressed to, or be accompanied by a reliance letter addressed to, and be
in form reasonably satisfactory to, the Agent and the Lenders.
ss.7.19 INTENTIONALLY DELETED.
ss.7.20 PLAN ASSETS. The Borrower will do, or cause to be done, all
things necessary to ensure that none of the Theatre Assets will be deemed
to be Plan Assets at any time.
ss.7.21 CERTIFICATES OF OCCUPANCY; LICENSES. Borrower shall keep and
maintain or cause the applicable tenants to keep and maintain, all licenses
necessary for the operation of the Mortgaged Properties and Theatre Assets
as Megaplex Movie Theatres and all appurtenant and related uses. The use
being made of each of the Mortgaged Properties and Theatre Assets is in
conformity with the certificate of occupancy issued for each such property.
ss.7.22 INTENTIONALLY DELETED.
ss.7.23 GROUND LEASES. Each of the Borrower and Guarantor covenants,
represents and warrants to Agent and each of the Lenders that there is not
and there will not be any ground lease in effect with respect to any of the
Theatre Assets.
ss.7.24 CERTAIN MORE RESTRICTIVE PROVISIONS. The Borrower and the
Guarantor agree that if any loan agreement, credit agreement, indenture or
other agreement relating to Indebtedness of the Borrower now or hereafter
contains any covenants and/or event of default provisions that are more
favorable to the lender or creditor under such document than those already
set forth in this Agreement, then this Agreement shall be deemed to be
automatically amended to include such more favorable provision. The
Borrower shall deliver to the Agent prompt written notice of the details of
any such more favorable provision and shall execute and deliver such
amendments to this Agreement and such other documents as the Agent may
reasonably request to reflect such more favorable provision.
ss.7.25 UCC LIEN SEARCHES. Borrower shall, within 15 days after the
Closing Date, provide to the Agent evidence that UCC lien searches have
been ordered with respect to the Guarantor confirming, to the satisfaction
of the Agent and the Lenders, that the Guarantor's interest in the Theatre
Assets is completely unencumbered as of the Closing Date, such searches to
be received by the Agent on or before April 30, 2004.
ss.7.26 TENANT'S CONSENT. Borrower and Guarantor shall, within 15 days
after the Closing Date, provide to the Agent evidence that a written
consent has been requested from each tenant of any Theatre Asset providing
for the subordination of the applicable Lease to the lien of any Mortgage
on such Theatre Asset required pursuant hereto and acknowledging that a
foreclosure of such Mortgage and a transfer of such Theatre Asset pursuant
thereto to the Agent, a Lender, any nominee thereof or any purchaser from
any thereof or such nominee shall not constitute a "Transfer" for purposes
of Section 27 of such Lease, such consents to be received by the Agent on
or before April 30, 2004.
ss.8. NEGATIVE COVENANTS.
Each of the Borrower and Guarantor covenants and agrees that, so long as
any Obligation, Loan or Note is outstanding or any of the Lenders has any
obligation to make any Loans:
ss.8.1 RESTRICTIONS ON INDEBTEDNESS.
A. GUARANTOR. Guarantor will not create, incur, assume, guarantee
or be or remain liable, contingently or otherwise, with respect to any
Indebtedness other than:
(a) Indebtedness to the Lenders and the Agent arising under
any of the Loan Documents;
(b) subject to ss.6.1(a)(xvi), current liabilities of the
Guarantor incurred in the ordinary course of business but not
incurred through (i) the borrowing of money, or (ii) the
obtaining of credit except for credit on an open account basis
customarily extended and in fact extended in connection with
normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials
and supplies to the extent that payment therefor shall not at the
time be required to be made in accordance with the provisions of
ss.7.8;
(d) Indebtedness in respect of judgments only to the extent,
for the period and for an amount not resulting in a Default;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business; and
(f) Indebtedness to the Agent, the Lenders and the Issuing
Lender under (and as each of the foregoing terms is defined in)
the Fleet Agreement.
B. BORROWER. The Borrower shall not without the prior written
consent of the Required Lenders create, incur, assume, guarantee or be
or remain liable, contingently or otherwise with respect to any
Indebtedness on a recourse basis, except: (a) with respect to the
Obligations; (b) limited secured recourse Indebtedness not in
violation of ss.9.8 of this Agreement; (c) approximately $17 million
(Canadian dollars) in letters of credit; (d) Indebtedness whose
recourse is solely for so-called "bad boy" acts, including without
limitation, (i) failure to account for a tenant's security deposits,
if any, for rent or any other payment collected by a borrower from a
tenant under the lease, all in accordance with the provisions of any
applicable loan documents; (ii) fraud or a material misrepresentation
made by a borrower, guarantor, or the holders of beneficial or
ownership interests in such borrower, in connection with the financing
evidenced by the applicable loan documents;(iii) any attempt by a
borrower or guarantor to divert or otherwise cause to be diverted any
amounts payable to the applicable lender in accordance with the
applicable loan documents; (iv) the misappropriation or misapplication
of any insurance proceeds or condemnation awards relating to the
mortgaged property; (v) voluntary bankruptcy by a borrower or
guarantor; and (vi) any environmental matter(s) affecting any
mortgaged property which is introduced or caused by a borrower or
guarantor or any holder of a beneficial or ownership interest in a
borrower; and (e) Indebtedness to the Agent, the Lenders and the
Issuing Lender under (and as each of the foregoing terms is defined
in) the Fleet Agreement.
ss.8.2 RESTRICTIONS ON LIENS, ETC. The Guarantor will not, so long as
the Theatre Assets have not been pledged as collateral under the Fleet
Agreement or the mandatory prepayment required pursuant to ss.3.2(b) has
not been made, (a) create or incur or suffer to be created or incurred or
to exist any lien, security title, encumbrance, mortgage, pledge, negative
pledge, charge, restriction or other security interest of any kind upon any
of its property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (b) transfer any of its
property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any
other obligation in priority to payment of its general creditors; (c)
acquire, or agree or have an option to acquire, any property or assets upon
conditional sale or other title retention or purchase money security
agreement, device or arrangement; (d) suffer to exist for a period of more
than thirty (30) days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might by law or
upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over any of its general creditors; (e) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse (provided that this
clause (e) shall not prohibit a true sale of a land option or development
agreement other than one related to any Theatre Asset); or (f) incur or
maintain any obligation to any holder of Indebtedness of Guarantor which
prohibits the creation or maintenance of any lien securing the Obligations
(collectively, "LIENS"); provided that the Guarantor may create or incur or
suffer to be created or incurred or to exist:
(i) Liens on properties to secure taxes, assessments and other
governmental charges or claims for labor, material or supplies in
respect of obligations not then delinquent or being contested in good
faith;
(ii) deposits or pledges made in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age
pensions or other social security obligations;
(iii) Liens on assets other than the Theatre Assets or any
interest therein (including the rents, issues and profits therefrom)
in respect of judgments, awards or Indebtedness which is permitted
byss.8.1A;
(iv) encumbrances on the Mortgaged Properties and the Theatre
Assets permitted under the applicable Lease or consisting of
easements, rights of way, zoning restrictions, restrictions on the use
of real property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases (other than with respect to
the Theatre Assets) to which the Borrower, the Guarantor or any of
their Subsidiaries is a party, purchase money security interests and
other liens or encumbrances (other than with respect to the Theatre
Assets), which do not individually or in the aggregate have a
materially adverse effect on the business of the Guarantor on a
consolidated basis;
(v) liens in favor of the Agent and the Lenders under the Loan
Documents to secure the Obligations (as the foregoing terms are
defined in the Fleet Agreement), other than liens on the Theatre
Assets;
(vi) liens in favor of the Agent and the Lenders under the Loan
Documents to secure the Obligations; and
(vii) liens and encumbrances on a Mortgaged Property (other than
the Theatre Assets) expressly permitted hereunder or under the Fleet
Agreement, and liens and encumbrances under the terms of any Mortgage.
ss.8.3 RESTRICTIONS ON INVESTMENTS. Neither the Guarantor nor the
Borrower will make or permit to exist or to remain outstanding any
Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Guarantor;
(b) marketable direct obligations of any of the following:
Federal Home Loan Mortgage Corporation, Student Loan Marketing
Association, Federal Home Loan Banks, Federal National Mortgage
Association, Government National Mortgage Association, Bank for
Cooperatives, Federal Intermediate Credit Banks, Federal Financing
Banks, Export-Import Bank of the United States, Federal Land Banks, or
any other agency or bank of the United States of America;
(c) demand deposits, certificates of deposit, bankers acceptances
and time deposits of any of the Lenders under (and as defined in) the
Fleet Agreement or any United States banks having total assets in
excess of $100,000,000; PROVIDED, HOWEVER, that the aggregate amount
at any time so invested with any single bank having total assets of
less than $1,000,000,000 will not exceed $1,000,000;
(d) securities commonly known as "commercial paper" issued by any
Lender under (and as defined in) the Fleet Agreement, or by a
corporation organized and existing under the laws of the United States
of America or any State which at the time of purchase are rated by
Moody's Investors Service, Inc. or by Standard & Poor's Corporation at
not less than "P 1" if then rated by Moody's Investors Service, Inc.,
and not less than "A 1", if then rated by Standard & Poor's
Corporation;
(e) mortgage-backed securities guaranteed by the Government
National Mortgage Association, the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by
Moody's Investors Service, Inc. or by Standard & Poor's Corporation at
not less than "AA" if then rated by Moody's Investors Service, Inc.
and not less than "AA" if then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not greater than 180 days
and fully secured by securities described in the foregoing subsections
(a), (b) or (e) with the Lenders under (and as defined in) the Fleet
Agreement, banks described in the foregoing subsection (c) or
financial institutions or other corporations having total assets in
excess of $500,000,000;
(g) shares of so-called "money market funds" registered with the
Securities and Exchange Commission under the Investment Company Act of
1940 which maintain a level per-share value, invest principally in
investments described in the foregoing subsections (a) through (f) and
have total assets in excess of $50,000,000;
(h) subject to ss.9, options, easements, licenses, fee interests
and leasehold interests and similar interests in Real Estate utilized
or to be utilized principally for Megaplex Movie Theatre or
Entertainment-Related Retail Improvements purposes or a related
purpose, including earnest money deposits relating thereto and
transaction costs;
(i) subject to the terms of this Agreement, Investments in
Subsidiaries of Borrower existing as of the date hereof, and
Investments in new wholly-owned Subsidiaries of Guarantor created
after the date of this Agreement; and
(j) deposits required by government agencies or public utilities.
ss.8.4 MERGER, CONSOLIDATION.
(a) The Guarantor will not become a party to any dissolution,
liquidation or disposition of all or substantially all of Guarantor's
assets or business, a merger, reorganization, consolidation or other
business combination or agree to effect any asset acquisition, stock
acquisition or other acquisition individually or in a series of
transactions which may have a similar effect as any of the foregoing,
in each case without the prior written consent of the Required
Lenders, except for the merger or consolidation of Guarantor where the
Guarantor is the sole surviving entity provided however that any such
merger or consolidation does not violate Guarantor's status as a
Special Purpose Entity.
(b) EPR will not become a party to any dissolution, liquidation
or disposition of all or substantially all of EPR's assets or
business, a merger, reorganization, consolidation or other business
combination or agree to effect any asset acquisition, stock
acquisition or other acquisition individually or in a series of
transactions which may have a similar effect as any of the foregoing,
in each case without the prior written consent of Required Lenders,
except for (i) the merger or consolidation of EPR with one of its
Subsidiaries, provided that such Subsidiary is other than the
Guarantor (ii) the merger or consolidation of EPR where EPR is the
sole surviving entity provided however that any such merger or
consolidation does not violate EPR's status as a REIT, (iii) any
acquisitions or investments; or (iv) any merger where EPR is the
surviving entity such that a majority of the seats of the Board of
Directors of the newly constituted entity are held by directors of EPR
serving as such prior to the time of such merger, or EPR otherwise
maintains a controlling interest therein, PROVIDED FURTHER that such
exceptions do not otherwise create any Default or Event of Default
hereunder.
ss.8.5 INTENTIONALLY DELETED.
ss.8.6 COMPLIANCE WITH ENVIRONMENTAL LAWS. Neither the Guarantor nor
EPR shall do nor shall EPR permit any of its Subsidiaries or any other
Person to, do any of the following: (a) use any of the Real Estate or any
portion thereof as a facility for the handling, processing, storage or
disposal of Hazardous Substances, except for small quantities of Hazardous
Substances used in the ordinary course of business and in material
compliance with all applicable Environmental Laws, (b) cause or permit to
be located on any of the Real Estate any underground tank or other
underground storage receptacle for Hazardous Substances except in full
compliance with Environmental Laws, (c) generate any Hazardous Substances
on any of the Real Estate except in full compliance with Environmental
Laws, (d) conduct any activity at any Real Estate or use any Real Estate in
any manner so as to cause a Release of Hazardous Substances on, upon or
into the Real Estate or any surrounding properties or any threatened
Release of Hazardous Substances which might give rise to liability under
CERCLA or any other Environmental Law, or (e) directly or indirectly
transport or arrange for the transport of any Hazardous Substances (except
in compliance with all Environmental Laws).
The Guarantor and EPR shall, and shall cause EPR's Subsidiaries to:
(i) in the event of any material change in Environmental Laws
governing the assessment, release or removal of Hazardous Substances,
take all reasonable action (including, without limitation, the
conducting of engineering tests at the sole expense of the Guarantor)
to confirm, if required by such change in Environmental Laws that no
Hazardous Substances are or ever were Released or disposed of by
Borrower, Guarantor or their Subsidiaries, or to the best knowledge of
Borrower or Guarantor, any Tenant, on the Mortgaged Properties or the
Theatre Assets (after acquisition thereof) in violation of applicable
Environmental Laws; and
(ii) if any Release or disposal of Hazardous Substances which any
Person may be legally obligated to contain, correct or otherwise
remediate or which may otherwise expose it to liability shall occur or
shall have occurred on the Real Estate (including without limitation
any such Release or disposal occurring prior to the acquisition or
leasing of such Real Estate by the Guarantor or any such Subsidiary),
the Guarantor shall, after obtaining knowledge thereof, cause the
prompt containment and removal of such Hazardous Substances and
remediation of the Real Estate in full compliance with all applicable
laws and regulations; PROVIDED, that each of the Guarantor and its
Subsidiaries shall be deemed to be in compliance with Environmental
Laws for the purpose of this clause (ii) so long as it or a Tenant is
taking reasonable action to remediate or manage any event of
noncompliance to the reasonable satisfaction of the Agent and no
action shall have been commenced by any enforcement agency. The Agent
may engage its own Environmental Engineer to review the environmental
assessments and the compliance with the covenants contained herein.
Notwithstanding the foregoing, if any Release or disposal of Hazardous
Substances shall occur or shall have occurred on the Theatre Assets
(except any such Release or disposal occurring prior to the
acquisition or leasing of such Real Estate by the Borrower or
Guarantor and disclosed in an environmental assessment delivered to
the Agent and the Lenders prior to the acquisition of such Real
Estate) and such Real Estate is required to become collateral
hereunder, the Agent shall have the right to require that the
Guarantor provide to the Agent a substitute property which is
satisfactory to the Agent and the Lenders, in their sole discretion.
At any time after an Event of Default shall have occurred hereunder,
or, whether or not an Event of Default shall have occurred, at any time
that the Agent or the Required Lenders shall have reasonable grounds to
believe that a Release or threatened Release of Hazardous Substances which
any Person may be legally obligated to contain, correct or otherwise
remediate or which otherwise may expose such Person to liability may have
occurred, relating to any Theatre Asset, or that any Theatre Asset is not
in compliance with Environmental Laws to the extent required by the Loan
Documents, the Agent may at its election (and will at the request of the
Required Lenders) obtain such environmental assessments of such property
prepared by an Environmental Engineer as may be necessary or advisable for
the purpose of evaluating or confirming (i) whether any Hazardous
Substances are present in the soil or water at or adjacent to such property
and (ii) whether the use and operation of such property comply with all
Environmental Laws to the extent required by the Loan Documents.
Environmental assessments may include detailed visual inspections of such
property including, without limitation, any and all storage areas, storage
tanks, drains, dry wells and leaching areas, and the taking of soil
samples, as well as such other investigations or analyses as are reasonably
necessary or appropriate for a complete determination of the compliance of
such property and the use and operation thereof with all applicable
Environmental Laws. All such environmental assessments shall be at the sole
cost and expense of the Guarantor, and shall be conducted to the extent
reasonably practicable to minimize disruption to the conduct of business at
such property.
ss.8.7 DISTRIBUTIONS. EPR will not make any Distributions which would
violate any of the following covenants:
(a) EPR will not pay any Distribution to its shareholders the
amount of which, when added to the amount of all other Distributions
paid by it in the same fiscal quarter and the three immediately
preceding fiscal quarters, would exceed ninety percent (90%) of its
FFO for such period; provided that EPR shall be permitted to pay an
amount in excess of such limit if necessary to permit EPR to maintain
its REIT Status, as evidenced by a certification of the chief
financial officer of EPR containing calculations in reasonable detail
reasonably satisfactory in form and substance to the Agent.
Notwithstanding the foregoing, EPR may, subject to the limitations set
forth in this Agreement (including specifically, but without
limitation, those contained in ss.8.7(b)) make Distributions (which
shall not be included in the ninety percent (90%) FFO test set forth
in the preceding sentence) in order to enable EPR to repurchase common
shares of EPR and the right to redeem those Series A preferred shares
in accordance with their terms so long as (i) any such repurchase or
redemption is made in EPR's prudent business judgment, (ii) no Event
of Default shall have occurred and be continuing on the date of any
such repurchase or redemption and (iii) no Event of Default shall
occur as a result of any such repurchase or redemption;
(b) In the event that an Event of Default shall have occurred and
be continuing, EPR shall not make any Distributions other than the
minimum Distributions required under the Code to maintain the REIT
Status of EPR, as evidenced by a certification of the chief financial
officer of EPR containing calculations in reasonable detail reasonably
satisfactory in form and substance to the Agent; provided, however,
that EPR shall not be entitled to make any Distribution in connection
with the repurchase of common stock of Guarantor at any time after an
Event of Default shall have occurred and be continuing; and
(c) In the event that an Event of Default shall have occurred and
be continuing and the maturity of the Obligations has been
accelerated, EPR shall not make any Distributions whatsoever, either
directly or indirectly.
ss.8.8 ASSET SALES. Neither the Borrower, nor Guarantor will sell,
transfer or otherwise dispose of (a) any Mortgaged Property other than for
fair market value, and as otherwise set forth herein or (b) any Theatre
Asset.
ss.8.9 DEVELOPMENT ACTIVITY. The Guarantor will not engage, directly
or indirectly (including through any Affiliate in which the Guarantor has
an ownership interest or through other Investments), in the development of
properties without the prior written consent of the Required Lenders in
their sole discretion.
ss.8.10 RESTRICTION ON PREPAYMENT OF INDEBTEDNESS. The Guarantor will
not, (a) prepay, redeem, defease, purchase or otherwise retire the
principal amount, in whole or in part, of any Indebtedness other than the
Obligations, the Hedge Obligations (as defined in the Fleet Agreement) and
the Obligations (as defined in the Fleet Agreement) after the occurrence of
any Event of Default, or (b) modify any document evidencing any
Indebtedness (other than the Obligations) to accelerate the maturity date
of such Indebtedness; PROVIDED, that this ss.8.10 shall not prohibit (x)
the prepayment of Indebtedness which is financed solely from the proceeds
of a new loan which would otherwise be permitted by the terms of ss.8.1;
(y) the prepayment of Indebtedness secured by Real Estate which is
satisfied solely from the proceeds of a sale of the Real Estate securing
such Indebtedness and (z) prepayment or defeasances permitted under other
credit facilities.
ss.8.11 ZONING AND CONTRACT CHANGES AND COMPLIANCE. Guarantor shall
not initiate or consent to any zoning reclassification of any of the
Theatre Assets or seek any variance under any existing zoning ordinance or
use or permit the use of such property in any manner that could result in
such use becoming a non-conforming use under any zoning ordinance or any
other applicable land use law, rule or regulation. Guarantor shall not
initiate any change in any laws, requirements of governmental authorities
or obligations created by private contracts and Leases which now or
hereafter may materially adversely affect the ownership, occupancy, use or
operation of the Theatre Assets.
ss.8.12 DERIVATIVE OBLIGATIONS. The Guarantor shall not contract,
create, incur, assume or suffer to exist any Derivative Obligations without
the prior written consent of the Required Lenders in their sole discretion.
ss.8.13 SUBSIDIARY GUARANTEES AND PLEDGES. Any Subsidiaries of EPR
which as of the date of this Agreement, do not guaranty any Indebtedness or
have not granted any pledge of stock or other equity interests to secure
any Indebtedness, are hereby prohibited from doing so, provided however,
that any such Subsidiary may provide a guaranty of the Obligations and the
Obligations (as defined in the Fleet Agreement), and PROVIDED FURTHER that
any such Subsidiary may (i) incur Indebtedness with respect to acquisitions
and/or refinancings or financings by such Subsidiary of Real Estate
directly owned by such Subsidiary; (ii) incur Indebtedness with respect to
acquisitions, financings and/or refinancings by one or more Subsidiaries in
a related transaction, which is funded by a common lender, and is secured
by mortgages on the Real Estate directly owned by each of such
Subsidiaries, and from which Indebtedness, each of such Subsidiaries
receives a benefit; and (iii) pledge its stock or other equity interests in
a borrower or owner of Real Estate, to secure any Indebtedness that is also
secured by a mortgage by such borrower or owner, granted pursuant to this
Section 8.13(i) or (ii) hereinabove.
ss.8.14 ORGANIZATIONAL DOCUMENT AMENDMENTS. Guarantor shall not make
any amendment to its organizational documents, including without
limitation, its operating agreement, by-laws, articles or organization,
articles or incorporation, or the like without the consent of the Agent and
the Required Lenders, but in no event shall Guarantor make any amendments
to any organizational documents which may have a Material Adverse Effect on
the Potential Collateral or Guarantor's ability to perform its Obligations
hereunder or under the Guaranty. Borrower shall not make any amendment to
its organizational documents in any manner which would have a Material
Adverse Effect on its or Guarantor's ability to perform any Obligations
hereunder or under the Guaranty.
ss.8.15 FLEET AGREEMENT AMENDMENT. Neither Guarantor nor Borrower will
amend or agree to amend in any material manner the Fleet Agreement except
for the amendment and restatement occurring substantially concurrently
herewith which effectuates an increase in the Facility thereunder to
$150,000,000, without the prior consent of the Required Lenders (which will
not be unreasonably withheld or delayed).
ss.9. FINANCIAL COVENANTS.
At all times, each of Guarantor and EPR covenants and agrees that, so long
as any Obligation, Loan or Note is outstanding or any Lender has any obligation
to make any Loans, they shall at all times be in compliance with the following
financial covenants. ss.9.2 through ss.9.6 and ss.9.8 and ss.9.9 shall be tested
as of the end of each quarter, based upon the results for that particular
quarter then ended. ss.9.1 and ss.9.7 shall be tested as of the end of each
quarter, based upon the results for the trailing four quarters then ended and
ss.9.1 shall also be tested on and as of the date of each new Loan hereunder.
ss.9.1 INTENTIONALLY DELETED.
ss.9.2 DEBT SERVICE COVERAGE RATIO. Calculated on a Consolidated basis
with respect to EPR, the ratio of Adjusted EBITDA to Debt Service shall not
be less than 1.75:1.00.
ss.9.3 TOTAL DEBT TO TOTAL ASSET VALUE. Calculated on a Consolidated
basis with respect to EPR, at any time the ratio of Total Debt to Total
Asset Value shall not exceed 60%.
ss.9.4 MAXIMUM PERMITTED INVESTMENTS. Calculated on a Consolidated
basis with respect to EPR, at any time the ratio of: (A) Investments in
notes, mortgages and unimproved real estate (including cost of land under
development), in the aggregate, to Total Asset Value shall not exceed 10%;
(B) Investments in construction (total budgeted cost, excluding cost of
land) to Total Asset Value shall not exceed 15%; (C) Investments in
unconsolidated subsidiaries to Total Asset Value, shall not exceed 10%; and
(D) Investments in the aggregate of (A) through (C) to Total Asset Value
shall not exceed 25%.
ss.9.5 TANGIBLE NET WORTH. The Consolidated Tangible Net Worth will
not at any time be less than the sum of (a) $360,000,000.00 plus (b)
seventy-five percent (75%) of the aggregate net proceeds received by EPR
and its Subsidiaries on a Consolidated basis in connection with any Equity
Offering subsequent to December 30, 2003.
ss.9.6 INTEREST RATE PROTECTION. With regard to EPR, the ratio of
Unhedged Variable Rate Debt to Total Asset Value shall not exceed
twenty-five percent (25%).
ss.9.7 MAXIMUM DISTRIBUTIONS. The ratio of Distributions of FFO to FFO
shall not exceed ninety percent (90%), measured on a rolling four-quarter
basis, provided however, as long as there is no Default or Event of Default
and none of the Loans has been accelerated, EPR shall not be prohibited
from making Distributions that are necessary to maintain REIT Status
(measured on a rolling four quarter basis).
ss.9.8 MAXIMUM SECURED RECOURSE DEBT TO TOTAL ASSET VALUE. Secured
Indebtedness (other than the Indebtedness incurred under the Fleet
Agreement or hereunder) that is recourse to the Borrower, to Total Asset
Value shall not exceed 15%; additionally, the amount of each such loan
shall not at the time of origination, exceed 65% of the property securing
such loan. For purposes of calculating amounts under this covenant,
valuation of property shall: (i) in the case of existing properties, be
based upon such property's net operating income (calculated in accordance
with GAAP), capped at 11%, (ii) in the case of properties under
construction, based upon such property's cost.
ss.9.9 MINIMUM FIXED CHARGE COVERAGE RATIO. Calculated on a
Consolidated basis with respect to EPR, at any time, the ratio of Adjusted
EBTIDA to Fixed Charges shall not be less than 1.65 to 1.00.
ss.9.10 MAXIMUM UNSECURED RECOURSE DEBT. Unsecured Indebtedness that
is recourse to Borrower shall not at any time exceed $85,000,000.
ss.10. CLOSING CONDITIONS.
The obligation of the Lenders to make the Loans hereunder shall be subject
to the satisfaction of each of the following conditions precedent:
ss.10.1 LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto and shall be
in full force and effect. The Agent shall have received a fully executed
counterpart of each such document, except that each Lender shall have
received the fully executed original of its Note.
ss.10.2 CERTIFIED COPIES OF ORGANIZATIONAL DOCUMENTS. The Agent shall
have received from the Borrower and Guarantor a copy, certified as of a
recent date by the appropriate officer of each State (where applicable) in
which such Person is organized or in which the Theatre Assets are located
and a duly authorized officer or member (or equivalent) of such Person, as
applicable, to be true and complete, of the operating agreement or
corporate charter of the Borrower and Guarantor, as applicable, or its
qualification to do business, as applicable, as in effect on such date of
certification.
ss.10.3 RESOLUTIONS. All action on the part of the Borrower and
Guarantor, as applicable, necessary for the valid execution, delivery and
performance by such Person of this Agreement and the other Loan Documents
to which such Person is or is to become a party shall have been duly and
effectively taken, and evidence thereof reasonably satisfactory to the
Agent shall have been provided to the Agent.
ss.10.4 INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. The Agent shall
have received from Borrower and Guarantor an incumbency certificate, dated
as of the Closing Date, signed by a duly authorized officer of such Person
and giving the name and bearing a specimen signature of each individual who
shall be authorized to sign, in the name and on behalf of such Person, each
of the Loan Documents to which such Person is or is to become a party.
ss.10.5 OPINIONS OF COUNSEL. The Agent shall have received such
opinions addressed to the Lenders and the Agent and dated as of the Closing
Date from counsel to the Borrower and Guarantor addressing such matters as
reasonably requested by Agent in form and substance reasonably satisfactory
to the Agent, including an enforceability and due authority opinion with
respect to Borrower and Guarantor.
ss.10.6 PAYMENT OF FEES AND EXPENSES. The Borrower shall have paid to
the Agent the fees payable pursuant to ss.4.2 and all accrued fees and
expenses of the Agent (including the reasonable fees and expenses of
counsel for the Agent and the Lenders to the extent then invoiced).
ss.10.7 INSURANCE. The Agent shall have received duplicate originals
or certified copies of all certificates of insurance required by this
Agreement.
ss.10.8 PERFORMANCE; NO DEFAULT. Borrower and Guarantor shall have
performed and complied in all material respects with all terms and
conditions herein required to be performed or complied with by it on or
prior to the Closing Date, and on the Closing Date there shall exist no
Default or Event of Default.
ss.10.9 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower and the Guarantor in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantor and their
Subsidiaries in connection therewith or after the date thereof shall have
been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
ss.10.10 PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Agent and the Agent's
counsel in form and substance, and the Agent shall have received all
information and such counterpart originals or certified copies of such
documents and such other certificates, opinions, assurances, consents,
approvals or documents as the Agent and the Agent's counsel may reasonably
require.
ss.10.11 INTENTIONALLY DELETED.
ss.10.12 COMPLIANCE CERTIFICATE. The Agent shall have received a
Compliance Certificate dated as of the date of the Closing Date
demonstrating compliance with each of the covenants calculated therein as
of the most recent fiscal quarter for which Borrower has provided financial
statements under ss.6.4 adjusted in the best good faith estimate of
Borrower as of the Closing Date.
ss.10.13 INTENTIONALLY DELETED.
ss.10.14 INTENTIONALLY DELETED.
ss.10.15 STOCKHOLDER AND PARTNER CONSENTS. The Agent shall have
received evidence reasonably satisfactory to the Agent that all necessary
stockholder, partner, member or other consents required in connection with
the consummation of the transactions contemplated by this Agreement and the
other Loan Documents have been obtained.
ss.10.16 INTENTIONALLY DELETED.
ss.10.17 INTENTIONALLY DELETED.
ss.10.18 INTENTIONALLY DELETED.
ss.10.19 INTENTIONALLY DELETED.
ss.10.20 ENVIRONMENTAL REPORTS, TITLE REPORTS, PROPERTY CONDITION
REPORTS AND SURVEYS. The Agent shall have received from Guarantor, copies
of property condition reports with respect to the Theatre Assets, proof of
environmental indemnities from the seller of the Theatre Assets or
environmental reports on such properties, and copies of surveys and title
reports on the Theatre Assets, to run in favor of the Lenders or
accompanied by reliance letters in favor of the Lenders, in each case, in
form and content satisfactory to Agent.
ss.10.21 INTENTIONALLY DELETED.
ss.10.22 GUARANTY. The Agent shall have received a fully executed
Guaranty from the Guarantor in form and substance acceptable to Lender in
its sole discretion.
ss.10.23 ACQUISITION AGREEMENTS. The conditions set forth in the
Acquisition Agreements to the obligation of the Guarantor to acquire the
Theatre Assets pursuant thereto shall have been satisfied in full (without
amendment or waiver of, or forbearance to exercise any rights with respect
to, any of the terms or provisions thereof by the Guarantor unless, in each
case, prompt notice thereof is given to the Agent and the Lenders), and
(subject only to the disbursement and application of Loans) the Guarantor
shall have acquired the Theatre Assets under the Acquisition Agreements.
ss.10.24 FLEET AGREEMENT. The Agent shall have received a copy of the
Fleet Agreement as in effect on the Closing Date, including all amendments
thereto and waivers thereunder.
ss.10.25 PRO FORMA BALANCE SHEET. The Agent shall have received a pro
forma balance sheet and income statement with respect to the Borrower to
reflect the acquisition of the Theatre Assets.
ss.10.26 NO RESTRICTIONS ON ISSUANCE OF EQUITY. The Agent shall have
received evidence that no restrictions, regulatory or otherwise, exist that
would restrict the Borrower's ability to issue Indebtedness or equity
interests in the public or private capital markets.
ss.10.27 SOLVENCY CERTIFICATE. The Agent shall have received a
solvency certificate with respect to the Borrower.
ss.10.28 OTHER. The Agent shall have reviewed such other documents,
instruments, certificates, opinions, assurances, consents and approvals as
the Agent or the Agent's counsel may reasonably have requested.
ss.11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan, whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
ss.11.1 PRIOR CONDITIONS SATISFIED. All conditions set forth in ss.10
shall continue to be satisfied as of the date upon which any Loan is to be
made.
ss.11.2 REPRESENTATIONS TRUE; NO DEFAULT. With the exception of Third
Party Information, each of the representations and warranties made by or on
behalf of the Borrower, the Guarantor or any of their Subsidiaries
contained in this Agreement, the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with this Agreement shall
be true in all material respects both as of the date as of which they were
made and shall also be true in all material respects as of the time of the
making of such Loan with the same effect as if made at and as of that time,
except to the extent of changes resulting from transactions permitted by
the Loan Documents (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date, other than
that made as of the closing date shall be required to be true and correct
only as of such specified date), and no Default or Event of Default shall
have occurred and be continuing.
ss.11.3 NO LEGAL IMPEDIMENT. No change shall have occurred in any law
or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Lender would make it illegal for such Lender to make such
Loan.
ss.11.4 GOVERNMENTAL REGULATION. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as
such Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of
the Federal Reserve System in connection with any Loan.
ss.11.5 PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
such Loan shall be reasonably satisfactory in substance and in form to the
Agent, and the Agent's counsel in form and substance and the Agent shall
have received all information and such counterpart originals or certified
or other copies of such documents and such other certificates, opinions,
assurances, consents, approvals or documents as the Agent and the Agent's
counsel may reasonably require.
ss.11.6 BORROWING DOCUMENTS. The Agent shall have received as of the
date of each Loan, a fully completed Loan Request for such Loan and the
other documents and information (including a Compliance Certificate) as
required by ss.2.7.
ss.12. EVENTS OF DEFAULT; ACCELERATION, ETC.
ss.12.1 EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date
fixed for payment;
(b) the Borrower shall fail to pay any interest on the Loans or
any other sums due hereunder or under any of the other Loan Documents
(excluding payments due under ss.12.1(a) above) within five (5) days
after the same shall become due and payable, on any fixed date for
payment or otherwise, provided however that such grace period shall
not be applicable where any interest payment is due at the stated date
of maturity or any accelerated date of maturity;
(c) the Borrower shall fail to comply with the covenants
contained in ss.5, ss.7.5 (a), ss.7.25, ss.7.26 or ss.8.15;
(d) the Borrower or Guarantor shall fail to comply with any
covenant contained in ss.9.2 through ss.9.9 and such failure shall
continue for thirty (30) days after written notice thereof shall have
been given to the Borrower by the Agent;
(e) any of the Borrower, the Guarantor, or any of their
Subsidiaries shall fail to perform any other term, covenant or
agreement contained herein or in any of the other Loan Documents which
they are required to perform (other than those specified in the other
subclauses of this ss.12 or in the other Loan Documents) and shall
fail to remedy such failure within thirty (30) days after written
notice from Agent;
(f) any representation or warranty made by or on behalf of the
Borrower, the Guarantor, or any of their Subsidiaries in this
Agreement or any other Loan Document, or any report, certificate,
financial statement, request for a Loan or in any other document or
instrument delivered pursuant to or in connection with this Agreement,
any advance of a Loan or any of the other Loan Documents other than
constituting or based upon Third Party Information on which Borrower,
Guarantor or any of their Subsidiaries relied and had no knowledge or
reason to believe was untrue in any material respect, shall prove to
have been false in any material respect upon the date when made or
deemed to have been made or repeated; notwithstanding anything to the
contrary contained in this provision, the Borrower shall have a period
of thirty (30) days to cure any unintentional inaccuracy or
misrepresentation.
(g) any of the Borrower, the Guarantor, or any of their
Subsidiaries (i) shall fail to pay at maturity, or within any
applicable period of grace, any obligation for borrowed money or
credit received or other Indebtedness, or (ii) shall fail to observe
or perform any term, covenant or agreement contained in any agreement
by which it is bound, evidencing or securing any obligation for
borrowed money or credit received or other Indebtedness for such
period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof;
PROVIDED that the events described in this ss.12.1(g) shall not
constitute an Event of Default unless such failure to perform,
together with other failures to perform as described in this
ss.12.1(g), involve singly or in the aggregate obligations for
borrowed money or credit received totaling in excess of $5,000,000.00;
(h) any of the Borrower, the Guarantor, or any of their
Subsidiaries, (i) shall make an assignment for the benefit of
creditors, or admit in writing its general inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver for it or any substantial part of its assets,
(ii) shall commence any case or other proceeding relating to it under
any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or (iii) shall take any
action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment
of a trustee or other custodian, liquidator or receiver of any of the
Borrower, the Guarantor, or any of their Subsidiaries or any
substantial part of the assets of any thereof, or a case or other
proceeding shall be commenced against any such Person under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction,
now or hereafter in effect, and any such Person shall indicate its
written approval thereof, written consent thereto or written
acquiescence therein or such petition, application, case or proceeding
shall not have been dismissed within sixty (60) days following the
filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian,
liquidator or receiver for any of the Borrower, the Guarantor, or any
of their Subsidiaries or adjudicating any such Person, bankrupt or
insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of
any such Person in an involuntary case under federal bankruptcy laws
as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, whether or not consecutive,
one or more uninsured or unbonded final judgments against any of the
Borrower, the Guarantor, or any of their Subsidiaries that, either
individually or in the aggregate, exceed $1,000,000;
(l) any of the Loan Documents shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms
thereof or the express prior written agreement, consent or approval of
the Lenders, or any action at law, suit in equity or other legal
proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of any of the Borrower or the
Guarantor, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a
determination, or issue a judgment, order, decree or ruling, to the
effect that any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, liquidation of all or
substantially all of the assets, merger or consolidation of the
Borrower or Guarantor shall occur unless Borrower or Guarantor is the
surviving entity, or any sale, transfer or other disposition of all or
substantially all of the assets, measured either by value or quantity,
of the Borrower or Guarantor shall occur, in each case other than as
permitted under the terms of this Agreement or the other Loan
Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Required Lenders shall
have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of any of the
Borrower, the Guarantor or any of their Subsidiaries to the PBGC or
such Guaranteed Pension Plan in an aggregate amount exceeding
$2,000,000 and such event in the circumstances occurring reasonably
could constitute grounds for the termination of such Guaranteed
Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such
Guaranteed Pension Plan; or a trustee shall have been appointed by the
United States District Court to administer such Plan; or the PBGC
shall have instituted proceedings to terminate such Guaranteed Pension
Plan;
(o) Intentionally deleted;
(p) the Borrower, Guarantor or any of their Subsidiaries or any
Person so connected with any of them shall be indicted for a federal
crime, a punishment for which could include the forfeiture of (i) any
assets of Borrower, Guarantor or any of their Subsidiaries which in
the good faith judgment of the Required Lenders could have a Material
Adverse Effect, or (ii) the Potential Collateral;
(q) Guarantor denies that it has any liability or obligation
under the Guaranty or any other Loan Document, or shall notify the
Agent or any of the Lenders of Guarantor's intention to attempt to
cancel or terminate the Guaranty or any other Loan Document, or shall
fail to observe or comply with any term, covenant, condition or
agreement under the Guaranty or any other Loan Document beyond any
applicable cure period;
(r) any Change in Control shall occur;
(s) an event of default, however defined, under any of the other
Loan Documents shall occur;
(t) the Borrower shall fail to reimburse RBC for any drawings
made under any letter of credit issued by RBC for the account of the
Borrower or any of its Subsidiaries or Affiliates; or
(u) an Event of Default under (and as defined in) the Fleet
Agreement shall occur and be continuing;
then, and in any such event, the Agent may, and upon the request of the
Required Lenders shall, by notice in writing to the Borrower terminate the
Commitments and/or declare all amounts owing with respect to this
Agreement, the Notes and the other Loan Documents (including prepayment
penalties or yield maintenance fees) to be, and they shall thereupon
forthwith become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; PROVIDED that in the event of any Event of Default
specified in ss.12.1(h), ss.12.1(i) or ss.12.1(j), the Commitments shall
automatically terminate and all such amounts shall become immediately due
and payable automatically and without any requirement of presentment,
demand, protest or other notice of any kind from any of the Lenders or the
Agent.
Notwithstanding anything to the contrary contained herein, the
occurrence of any one of the aforementioned terms or conditions in this ss.
12.1, shall be, prior to the giving of any applicable notice or grace
period, and until the same is cured as permitted by this Agreement, a
"DEFAULT."
ss.12.2 INTENTIONALLY DELETED.
ss.12.3 TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in ss.12.1(h), ss.12.1(i) or ss.12.1(j) shall occur, then
immediately and without any action on the part of the Agent or any Lender
any unused portion of the credit hereunder shall terminate and the Lenders
shall be relieved of all obligations to make Loans to the Borrower. If any
other Event of Default shall have occurred, the Agent, upon the election of
the Required Lenders, shall by notice to the Borrower terminate the
obligation to make Loans to the Borrower. No termination under this ss.12.3
shall relieve the Borrower of its obligations to the Lenders arising under
this Agreement or the other Loan Documents.
ss.12.4 REMEDIES. In case any one or more Events of Default shall have
occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to ss.12.1, the Agent on
behalf of the Lenders may, with the consent of the Required Lenders but not
otherwise, proceed to protect and enforce their rights and remedies under
this Agreement, the Notes and/or any of the other Loan Documents by suit in
equity, action at law or other appropriate proceeding, including to the
full extent permitted by applicable law the specific performance of any
covenant or agreement contained in this Agreement and the other Loan
Documents, the obtaining of the EX PARTE appointment of a receiver, and, if
any amount shall have become due, by declaration or otherwise, the
enforcement of the payment thereof. No remedy herein conferred upon the
Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or any other provision of law. If
Borrower or Guarantor fails to perform any agreement or covenant contained
in this Agreement or any of the other Loan Documents beyond any applicable
period for notice and cure, Agent may itself perform, or cause to be
performed, any agreement or covenant of such Person contained in this
Agreement or any of the other Loan Documents which such Person shall fail
to perform, and the out-of-pocket costs of such performance, together with
any reasonable expenses, including reasonable attorneys' fees actually
incurred (including attorneys' fees incurred in any appeal) by Agent in
connection therewith, shall be payable by Borrower upon demand and shall
constitute a part of the Obligations and shall if not paid within five (5)
days after demand bear interest at the rate for overdue amounts as set
forth in this Agreement. In the event that all or any portion of the
Obligations is collected by or through an attorney-at-law, the Borrower
shall pay all costs of collection including, but not limited to, reasonable
attorney's fees.
ss.12.5 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that,
following the occurrence and during the continuance of any Event of
Default, any monies are received in connection with the enforcement of any
security documents, or otherwise with respect to the realization upon any
of the Potential Collateral or other assets of Borrower or the Guarantor,
such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of, all reasonable costs,
expenses, disbursements and losses which shall have been paid,
incurred or sustained by the Agent to protect or preserve the
Potential Collateral or in connection with the collection of such
monies by the Agent, for the exercise, protection or enforcement by
the Agent of all or any of the rights, remedies, powers and privileges
of the Agent or the Lenders under this Agreement or any of the other
Loan Documents or in respect of the Potential Collateral or in support
of any provision of adequate indemnity to the Agent against any taxes
or liens which by law shall have, or may have, priority over the
rights of the Agent or the Lenders to such monies;
(b) Second, to all other Obligations (including any interest,
expenses or other obligations incurred after the commencement of a
bankruptcy) in such order or preference as the Required Lenders shall
determine; PROVIDED, that (i) in the event that any Lender shall have
wrongfully failed or refused to make an advance under ss.2.8 and such
failure or refusal shall be continuing, advances made by other Lenders
during the pendency of such failure or refusal shall be entitled to be
repaid as to principal and accrued interest in priority to the other
Obligations described in this subsection (b), and (ii) Obligations
owing to the Lenders with respect to each type of Obligation such as
interest, principal, fees and expenses shall be made among the Lenders
PRO RATA; and PROVIDED, further that the Required Lenders may in their
discretion make proper allowance to take into account any Obligations
not then due and payable; and
(c) Third, the excess, if any, shall be returned to the Borrower
or to such other Persons as are entitled thereto.
ss.13. SETOFF.
ss.13.1 SET-OFF. Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or
the branch where such deposits are held) or other sums credited by or due
from any Lender to the Borrower or the Guarantor and any securities or
other property of the Borrower or the Guarantor in the possession of such
Lender may be applied to or set off against the payment of Obligations and
any and all other liabilities, direct, or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, of the Borrower or
the Guarantor to such Lender. Each of the Lenders agrees with each other
Lender that if such Lender shall receive from the Borrower or the
Guarantor, whether by voluntary payment, exercise of the right of setoff,
or otherwise, any amount pursuant to this ss.13.1 it shall retain and apply
such amount to the payment of the Note or Notes held by such Lender on a
pro rata basis with all other Lenders consistent with the Commitment
Percentages and such Lender shall make such disposition and arrangements
with the other Lenders either by way of distribution, PRO TANTO assignment
of claims, subrogation or otherwise as shall result in each Lender
receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement. ANY AND ALL RIGHTS TO REQUIRE LENDER TO
EXERCISE ITS RIGHTS AND REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
ss.13.2 ADDITIONAL RIGHTS. The rights of Lenders and each affiliate of
Lenders under this Article 13 are in addition to and not in limitation of,
other rights and remedies, including other rights of set-off which Lenders
may have upon an Event of Default.
ss.14. THE AGENT.
ss.14.1 AUTHORIZATION. The Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Agent, together with such powers as are
reasonably incident thereto, PROVIDED that no duties or responsibilities
not expressly assumed herein or therein shall be implied to have been
assumed by the Agent. The obligations of the Agent hereunder are primarily
administrative in nature, and nothing contained in this Agreement or any of
the other Loan Documents shall be construed to constitute the Agent as a
trustee for any Lender or to create an agency or fiduciary relationship.
The Borrower and any other Person shall be entitled to conclusively rely on
a statement from the Agent that it has the authority to act for and bind
the Lenders pursuant to this Agreement and the other Loan Documents.
ss.14.2 EMPLOYEES AND AGENTS. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent
may reasonably determine, and all reasonable fees and expenses of any such
Persons shall be paid by the Borrower.
ss.14.3 NO LIABILITY. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in
their duties nor any agent, or employee thereof, shall be liable to any of
the Lenders for any waiver, consent or approval given or any action taken,
or omitted to be taken, in good faith by it or them hereunder or under any
of the other Loan Documents, or in connection herewith or therewith, or be
responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as the case may be,
shall be liable for losses due to its willful misconduct or gross
negligence.
ss.14.4 NO REPRESENTATIONS. The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement, the Notes, any
of the other Loan Documents or any instrument at any time constituting, or
intended to constitute, collateral security for the Notes, or for the value
of any such collateral security or for the validity, enforceability or
collectability of any amounts owing with respect to the Notes, or for any
recitals or statements, warranties or representations made herein or in any
of the other Loan Documents or in any certificate or instrument hereafter
furnished to it by or on behalf of the Borrower, the Guarantor or any of
their Subsidiaries, or be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements herein or in any of the other Loan Documents. The Agent shall
not be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrower, the Guarantor or any holder of any of the
Notes shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the
Lenders, with respect to the creditworthiness or financial condition of the
Borrower, the Guarantor, or any of their Subsidiaries, or the value of any
collateral or any other assets of the Borrower or the Guarantor. Each
Lender acknowledges that it has, independently and without reliance upon
the Agent or any other Lender, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agent or any other
Lender, based upon such information and documents as it deems appropriate
at the time, continue to make its own credit analysis and decisions in
taking or not taking action under this Agreement and the other Loan
Documents.
ss.14.5 PAYMENTS.
(a) A payment by the Borrower or Guarantor to the Agent hereunder
or under any of the other Loan Documents for the account of any Lender
shall constitute a payment to such Lender. The Agent agrees to
distribute to each Lender not later than one Business Day after the
Agent's receipt of good funds, determined in accordance with the
Agent's customary practices, such Lender's PRO RATA share of payments
received by the Agent for the account of the Lenders except as
otherwise expressly provided herein or in any of the other Loan
Documents. In the event that the Agent fails to distribute such
amounts within one Business Day as provided above, the Agent shall pay
interest on such amount at a rate per annum equal to the Federal Funds
Effective Rate from time to time in effect.
(b) If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may
refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a
court of competent jurisdiction shall adjudge that any amount received
and distributed by the Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to the Agent
its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court. In the event that the Agent shall refrain
from making any distribution of any amount received by it as provided
in this ss.14.5(b), the Agent shall endeavor to hold such amounts in
an interest bearing account and at such time as such amounts may be
distributed to the Lenders, the Agent shall distribute to each Lender,
based on their respective Commitment Percentages, its pro rata share
of the interest or other earnings from such deposited amount.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Lender that fails
(i) to make available to the Agent its PRO RATA share of any Loan or
(ii) to comply with the provisions of ss.13 with respect to making
dispositions and arrangements with the other Lenders, where such
Lender's share of any payment received, whether by setoff or
otherwise, is in excess of its PRO RATA share of such payments due and
payable to all of the Lenders, in each case as, when and to the full
extent required by the provisions of this Agreement, shall be deemed
delinquent (a "DELINQUENT LENDER") and shall be deemed a Delinquent
Lender until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it
from the Borrower or the Guarantor, whether on account of outstanding
Loans, interest, fees or otherwise, to the remaining nondelinquent
Lenders for application to, and reduction of, their respective PRO
RATA shares of all outstanding Loans. The Delinquent Lender hereby
authorizes the Agent to distribute such payments to the nondelinquent
Lenders in proportion to their respective PRO RATA shares of all
outstanding Loans. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans of the
nondelinquent Lenders or as a result of other payments by the
Delinquent Lenders to the nondelinquent Lenders, the Lenders'
respective PRO RATA shares of all outstanding Loans have returned to
those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
ss.14.6 HOLDERS OF NOTES. Subject to the terms of ss.18, the Agent may
deem and treat the payee of any Note as the absolute owner or purchaser
thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder,
assignee or transferee.
ss.14.7 INDEMNITY. The Lenders ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and
suits (whether groundless or otherwise), losses, damages, costs, expenses
(including any expenses for which the Agent has not been reimbursed by the
Borrower as required by ss.15), and liabilities of every nature and
character arising out of or related to this Agreement, the Notes, or any of
the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Agent's willful misconduct or gross negligence.
ss.14.8 AGENT AS LENDER. In its individual capacity, RBC shall have
the same obligations and the same rights, powers and privileges in respect
to its Commitment and the Loans made by it, and as the holder of any of the
Notes as it would have were it not also the Agent.
ss.14.9 RESIGNATION; REMOVAL. The Agent may resign at any time by
giving 60 days' prior written notice thereof to the Lenders and the
Borrower. The Required Lenders may remove the Agent from its capacity as
Agent for failure to perform its material obligations under this Agreement
provided that the Required Lenders shall have given prior written notice to
the Agent of its failure to perform any of its material obligations under
this Agreement and such failure shall not have been cured within thirty
(30) calendar days after receipt of notice of such failure (or such failure
cannot reasonably be cured within such thirty (30) day period, then within
such longer period of time as may be necessary to complete such cure so
long as Agent commences such cure within such thirty (30) day period and
thereafter diligently pursues such cure to completion). Upon any such
resignation or removal, the Required Lenders shall have the right to
appoint as a successor Agent any Lender or any financial institution whose
senior debt obligations are rated not less than "A2" or its equivalent by
Moody's or not less than "A2" or its equivalent by S&P and which has a net
worth of not less than $500,000,000. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Agent shall be
reasonably acceptable to the Borrower. If no successor Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation or its removal, then the retiring or removed Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be any Lender
or any financial institution whose senior debt obligations are rated not
less than "A2" or its equivalent by Moody's or not less than "A" or its
equivalent by S&P and which has a net worth of not less than $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or
removed Agent, and the retiring or removed Agent shall be discharged from
its duties and obligations hereunder as Agent thereafter arising. After any
retiring or removed Agent's resignation or removal, the provisions of this
Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while
it was acting as Agent. Notwithstanding anything herein to the contrary, in
the event that Agent shall at any time hold a Commitment less than
$5,000,000.00, then such Agent shall promptly provide written notice
thereof to the Lenders and the Required Lenders shall have the right, to be
exercised within fifteen (15) days of delivery of such notice by such
Agent, to elect to remove such Agent as Agent and replace such Agent as
Agent under the Loan Documents, subject to the terms of this ss.14.9.
ss.14.10 DUTIES IN THE CASE OF ENFORCEMENT. In case one or more Events
of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if
(a) so requested by the Required Lenders and (b) the Lenders have provided
to the Agent such additional indemnities and assurances against expenses
and liabilities as the Agent may reasonably request, proceed to enforce the
provisions of any security documents authorizing the sale or other
disposition of all or any part of any collateral and exercise all or any
such other legal and equitable and other rights or remedies as it may have
in respect of such collateral. The Required Lenders may direct, subject to
the terms of any intercreditor agreement among the Agent and the Lenders,
the Agent in writing as to the method and the extent of any such sale or
other disposition, the Lenders hereby agreeing to indemnify and hold the
Agent harmless from all liabilities incurred in respect of all actions
taken or omitted in accordance with such directions, provided that the
Agent need not comply with any such direction to the extent that the Agent
reasonably believes that the Agent's compliance with such direction to be
unlawful or commercially unreasonable in any applicable jurisdiction.
ss.14.11 INTENTIONALLY DELETED.
ss.14.12 INTENTIONALLY DELETED.
ss.14.13 REPLACEMENT OF HOLDOUT LENDER. If there are then more than
two Lenders and any action to be taken by the Lenders hereunder requires
the unanimous consent, authorization, or agreement, of all Lenders, and a
Lender ("HOLDOUT LENDER") fails to give its consent, authorization or
agreement, then Agent, upon at least 5 Business Days prior irrevocable
notice to the Holdout Lender, may, or upon Borrower's request, and
otherwise in compliance with the terms of this ss.14.13, permanently
replace the Holdout Lender with one or more substitute lenders (each, a
"REPLACEMENT LENDER"), and the Holdout Lender shall have no right to refuse
to be replaced hereunder. Any notice hereunder to replace the Holdout
Lender shall specify an effective date for such replacement, which date
shall not be later than 15 Business Days after the date such notice is
given.
Prior to the effective date of such replacement, the Holdout Lender
and each Replacement Lender shall execute and deliver an Assignment and
Acceptance Agreement, subject only to the Holdout Lender being repaid its
share of the outstanding obligations (including an assumption of its pro
rata share of the risk participation liability) without any premium or
penalty of any kind whatsoever. If the Holdout Lender shall refuse or fail
to execute and deliver any such Assignment and Acceptance Agreement prior
to the effective date of such replacement, the Holdout Lender shall be
deemed to have executed and delivered such Assignment and Acceptance
Agreement. Until such time as the Replacement Lender(s) shall have acquired
all of the Obligations, the Commitments, and the other rights and
obligations of the Holdout Lender hereunder and under the other Loan
Documents, the Holdout Lender shall remain obligated to make the Holdout
Lender's Pro Rata Share of Advances.
Borrower agrees to pay all reasonably incurred costs or expenses
incurred by any Lender in connection with this ss.14.13 including without
limitation, all principal and accrued and unpaid interest or fees,
including any accrued and unbilled LIBOR breakage fees.
ss.15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Agent or any of the Lenders (other
than taxes based upon the Agent's or any Lender's gross or net income in the
ordinary course, except that the Agent and the Lenders shall be entitled to
indemnification for any and all amounts paid by them in respect of taxes based
on income or other taxes assessed by any State in which any collateral is
located, such indemnification to be limited to taxes DUE SOLELY on account of
the granting of collateral under any security document and to be net of any
credit allowed to the indemnified party from any other State on account of the
payment or incurrence of such tax by such indemnified party), including any
recording, mortgage, documentary or intangibles taxes in connection with the
Mortgages and other Loan Documents, or other taxes payable on or with respect to
the transactions contemplated by this Agreement, including any such taxes
payable by the Agent or any of the Lenders after the Closing Date (the Borrower
hereby agreeing to indemnify the Agent and each Lender with respect thereto),
(c) all title insurance premiums, engineer's fees, environmental reviews and the
reasonable fees, expenses and disbursements of the counsel to the Agent and any
local counsel to the Agent incurred in connection with the preparation,
administration, syndication or interpretation of the Loan Documents and other
instruments mentioned herein (excluding, however, the preparation of agreements
evidencing participations granted under ss.18.4), and amendments, modifications,
approvals, consents or waivers hereto or hereunder, (d) all other reasonable out
of pocket fees, expenses and disbursements of the Agent actually incurred by the
Agent in connection with the preparation or interpretation of the Loan Documents
and other instruments mentioned herein, the addition or substitution of
collateral, the review of leases and Subordination, Attornment and
Non-Disturbance Agreements, the making of each advance hereunder, the
syndication of the Commitments pursuant to ss.18 (without duplication of those
items addressed in subparagraph (c), above), (e) all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and costs, and the fees and costs
of appraisers, engineers, investment bankers or other experts retained by any
Lender or the Agent) actually incurred by any Lender or the Agent in connection
with (i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or the Guarantor or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way related
to the Agent's or any of the Lenders' relationship with the Borrower or the
Guarantor, unless brought by Borrower or Guarantor (f) all reasonable fees,
expenses and disbursements of the Agent incurred in connection with UCC
searches, UCC filings, title rundowns, title searches or mortgage recordings,
and (g) all reasonable fees, expenses and disbursements (including reasonable
attorneys' fees and costs) which may be incurred by RBC in connection with the
execution and delivery of this Agreement and the other Loan Documents (without
duplication of any of the items listed above). The covenants of this ss.15 shall
survive the repayment of the Loans and the termination of the obligations of the
Lenders hereunder.
ss.16 INDEMNIFICATION.
ss.16.1 LENDER INDEMNIFICATION. The Borrower agrees to indemnify and
hold harmless the Agent and the Lenders and each director, officer,
employee, agent and Person who controls the Agent or any Lender from and
against any and all claims, actions and suits, whether groundless or
otherwise, and from and against any and all liabilities, losses, damages
and expenses of every nature and character arising out of or relating to
this Agreement or any of the other Loan Documents or the transactions
contemplated hereby and thereby including, without limitation, (a) any and
all claims for brokerage, leasing, finders or similar fees which may be
made relating to the Theatre Assets or the Loans, (b) any condition of the
Theatre Assets, (c) any actual or proposed use by the Borrower of the
proceeds of any of the Loans (d) any actual or alleged infringement of any
patent, copyright, trademark, service mark or similar right of the
Borrower, the Guarantor, or any of its Subsidiaries comprised in the
collateral, (e) the Borrower and the Guarantor entering into or performing
this Agreement or any of the other Loan Documents, (f) any actual or
alleged violation of any law, ordinance, code, order, rule, regulation,
approval, consent, permit or license relating to the Theatre Assets, or (g)
with respect to the Borrower, the Guarantor and their Subsidiaries and
their respective properties and assets, the violation of any Environmental
Law, the Release or threatened Release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited to, claims
with respect to wrongful death, personal injury, nuisance or damage to
property), in each case including, without limitation, the reasonable fees
and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding; PROVIDED, HOWEVER, that the
Borrower shall not be obligated under this ss.16 to indemnify any Person
for liabilities arising from such Person's own gross negligence or willful
misconduct. In litigation, or the preparation therefor, the Lenders and the
Agent shall be entitled to select a single law firm as their own counsel
and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower under this ss.16 are
unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The provisions of this ss.16
shall survive the repayment of the Loans and the termination of the
obligations of the Lenders hereunder.
ss.16.2 BORROWER MUST NOTIFY. Agent and each Lender shall not be in
default under this Agreement or under any other Loan Document, unless a
written notice specifically setting forth the claim of Borrower shall have
been given to Agent and each Lender within thirty (30) days after the
Borrower first had actual knowledge or actual notice of the occurrence of
the event which Borrower alleges gave rise to such claim and Agent and each
Lender does not remedy or cure the default, if any there be, with
reasonable promptness thereafter.
ss.16.3 REMEDIES. If it is determined by the final order of a court of
competent jurisdiction, which is not subject to further appeal, that Agent
and/or Lender has breached any of its obligations under the Loan Documents
and has not remedied or cured the same with reasonable promptness following
notice thereof, Agent and/or Lender's responsibilities shall be limited to:
(i) where the breach consists of the failure to grant consent or give
approval in violation of the terms and requirements of a Loan Document, the
obligation to grant such consent or give such approval and to pay
Borrower's reasonable costs and expenses including, without limitation,
reasonable attorneys fees and disbursements in connection with such court
proceedings; and (ii) the case of any such failure to grant such consent or
give such approval, or in the case of any other such default by Agent
and/or Lender, where it is also so determined that Agent and/or Lender
acted in bad faith, or that Agent and/or Lender's default constituted gross
negligence or willful misconduct, the payment of any actual, direct,
compensatory damages sustained by Borrower as a result thereof plus
Borrower's reasonable costs and expenses, including without limitation,
reasonable attorney's fees and disbursements in connection with such court
proceedings.
ss.16.4 LIMITATIONS. In no event, however, shall Agent and/or Lender
be liable to Borrower or to Guarantor or anyone else for other damages such
as, but not limited to, indirect, speculative or punitive damages whatever
nature of the breach by Agent and/or Lender of its obligations under this
Agreement or under any of the other Loan Documents. In no event shall
Lender be liable to Borrower or to Guarantor or anyone else unless a
written notice specifically setting forth the claim of Borrower shall have
been given to lender within the time period specified above.
ss.16.5 OBLIGATIONS ABSOLUTE. Except to the extent prohibited by
applicable law which cannot be waived, the obligations of Borrower and
obligations of the Guarantor under the Loan Documents shall be absolute,
unconditional and irrevocable and shall be paid strictly in accordance with
the terms of the Loan Documents under all circumstances whatsoever,
including without limitation, the existence of any claim, set off, defense
or other right which Borrower or Guarantor may have at any time against
Agent and/or Lender whether in connection with a Loan Document or any
unrelated transaction.
ss.17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or the Guarantor or any of
their Subsidiaries pursuant hereto or thereto shall be deemed to have been
relied upon by the Lenders and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of any of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding. The indemnification
obligations of the Borrower provided herein and in the other Loan Documents
shall survive the full repayment of amounts due and the termination of the
obligations of the Lenders hereunder and thereunder to the extent provided
herein and therein. All statements contained in any certificate delivered to any
Lender or the Agent at any time by or on behalf of the Borrower or the Guarantor
or any of their Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Person hereunder.
ss.18. ASSIGNMENT AND PARTICIPATION.
ss.18.1 CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided
herein, each Lender may assign to one or more banks or other entities all
or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and
the same portion of the Loans at the time owing to it and the Notes held by
it); provided that (a) the Agent and, so long as no Event of Default exists
hereunder, the Borrower shall have each given its prior written consent to
such assignment, which consent shall not be unreasonably withheld or
delayed (provided that (i) such consent shall not be required for any
assignment to another Lender who was not admitted pursuant to a waiver of
clause (e) below, to a lender which is and remains under common control
with the assigning Lender or to a wholly-owned Subsidiary of such Lender,
provided that such assignee shall remain a wholly-owned Subsidiary of such
Lender, and (ii) the consent of Agent shall not be required if an Event of
Default exists and is continuing so long as the assignee is an
institutional lender), (b) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Lender's rights and
obligations under this Agreement, (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as
hereinafter defined) an Assignment and Acceptance Agreement in the form of
EXHIBIT L annexed hereto, together with any Notes subject to such
assignment, (d) in no event shall any voting, consent or approval rights of
a Lender be assigned to any Person controlling, controlled by or under
common control with, or which is not otherwise free from influence or
control by, the Borrower or any Guarantor, which rights shall instead be
allocated PRO RATA among the other remaining Lenders, (e) if such assignee
is to become a Lender, such assignee shall have a net worth as of the date
of such assignment of not less than $200,000,000, unless waived by the
Agent and the Borrower, (f) such assignee shall acquire an interest in the
Loans of not less than $3,000,000 (or if less, the remaining Loans of the
assignor), unless waived by the Agent, and so long as no Event of Default
exists hereunder, the Borrower, and (g) such assignee shall be subject to
the terms of any intercreditor agreement among the Lenders and the Agent.
Upon execution, delivery, acceptance and recording of such Assignment and
Acceptance Agreement, (i) the assignee thereunder shall be a party hereto
and all other Loan Documents executed by the Lenders and have the rights
and obligations of a Lender hereunder, (ii) the assigning Lender shall,
upon payment to the Agent of the registration fee referred to in ss.18.2,
be released from its obligations under this Agreement arising after the
effective date of such assignment with respect to the assigned portion of
its interests, rights and obligations under this Agreement, and (iii) the
Agent may unilaterally amend Schedule 1 to reflect such assignment. In
connection with each assignment, the assignee shall represent and warrant
to the Agent, the assignor and each other Lender as to whether such
assignee is controlling, controlled by, under common control with or is not
otherwise free from influence or control by, the Borrower, the Guarantor or
any of their Subsidiaries.
ss.18.2 REGISTER. The Agent shall maintain on behalf of the Borrower a
copy of each assignment delivered to it and a register or similar list (the
"REGISTER") for the recordation of the names and addresses of the Lenders
and the Commitment Percentages of and principal amount of the Loans owing
to the Lenders from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Guarantor, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower
and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Lender
agrees to pay to the Agent a registration fee in the sum of $3,500
(provided that with respect to any assignment by a Lender to a Subsidiary
as provided herein, the assigning Lender shall pay to Agent its reasonable
expenses incurred in connection with such assignment in lieu of such
registration fee).
ss.18.3 NEW NOTES. Upon its receipt of an Assignment and Acceptance
Agreement executed by the parties to such assignment, together with each
Note subject to such assignment, the Agent shall record the information
contained therein in the Register. Within five (5) Business Days after
receipt of notice of such assignment from Agent, the Borrower, at Agent's
expense, shall execute and deliver to the Agent, in exchange for each
surrendered Note, a new Note to the order of such assignee in an amount
equal to the amount assigned to such assignee pursuant to such Assignment
and Acceptance Agreement and, if the assigning Lender has retained some
portion of its obligations hereunder, a new Note to the order of the
assigning Lender in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the surrendered
Notes, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective
date of such Assignment and Acceptance Agreement and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall
be canceled and returned to the Borrower.
ss.18.4 PARTICIPATIONS. Each Lender may sell participations to one or
more Lenders or other entities in all or a portion of such Lender's rights
and obligations under this Agreement and the other Loan Documents; PROVIDED
that (a) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder, (b) such participation shall not
entitle such participant to any rights or privileges under this Agreement
or any Loan Documents, including without limitation, rights granted to the
Lenders under ss.4.8, ss.4.9 and ss.4.10, (c) such participation shall not
entitle the participant to the right to approve waivers, amendments or
modifications, (d) such participant shall have no direct rights against the
Borrower, (e) such sale is effected in accordance with all applicable laws,
and (f) such participant shall not be a Person controlling, controlled by
or under common control with, or which is not otherwise free from influence
or control by any of the Borrower or Guarantor. Any Lender which sells a
participation shall promptly notify the Agent of such sale and the identity
of the purchaser of such interest.
ss.18.5 PLEDGE BY LENDER. Any Lender may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or
any portion of its Note) to any of the twelve Federal Reserve Banks
organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341 or to
such other Person as the Agent may approve to secure obligations of such
lenders. No such pledge or the enforcement thereof shall release the
pledgor Lender from its obligations hereunder or under any of the other
Loan Documents.
ss.18.6 NO ASSIGNMENT BY BORROWER. Borrower or Guarantor shall not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each of the Lenders and any purported
assignment without such consent shall be null and void.
ss.18.7 DISCLOSURE. Borrower and Guarantor agree to promptly cooperate
with any Lender in connection with any proposed assignment or participation
of all or any portion of its Commitment. Each of the Lenders and the Agent
acknowledges and agrees for itself that certain information provided and to
be provided by the Borrower contains confidential non-public information
related to Guarantor and EPR and agrees to keep any information delivered
or made available by the Guarantor or EPR to it confidential from anyone
other than its employees, officers, attorneys and other advisors who are or
are expected to become engaged in evaluating, administering or syndicating
the Loan or rendering advice in connection therewith, and each of Agent and
the Lenders agrees not to trade in EPR's securities (all of whom shall be
bound by this ss.18.7) in violation of Section 10(b) of the Securities
Exchange Act of 1934, as amended, or Rule 10b-5 or any other federal
securities laws or regulations thereunder, provided that nothing herein
shall prevent any of the foregoing Persons from disclosing such information
(a) to any potential assignees or participants who have agreed to maintain
the confidentiality of such information in the manner and to the extent
provided in this ss.18.7, (b) upon the order of any court or administrative
agency or upon the request of any administrative agency or authority having
jurisdiction over any of the foregoing Persons or such potential assignees
or participants, (c) upon the request or demand of any regulatory agency or
authority, (d) to the extent that such information has been publicly
disclosed other than as a result of a disclosure by the foregoing Persons,
(e) otherwise as required by law or (f) to the extent necessary to enforce
the Loan Documents. In addition, the Lenders may make disclosure of such
information to any contractual counterparty in swap agreements or such
contractual counterparty's professional advisors (so long as such
contractual counterparty or professional advisors to such contractual
counterparty agree to be bound by the provisions of this ss.18.7).
ss.18.8 AMENDMENTS TO LOAN DOCUMENTS. Upon any such assignment or
participation, the Borrower and the Guarantor shall, upon the request of
the Agent, enter into such documents as may be reasonably required by the
Agent to modify the Loan Documents to reflect such assignment or
participation.
ss.19. NOTICES.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Agreement (hereinafter in this ss.19 referred to as
"Notice"), but specifically excluding to the maximum extent permitted by law any
notices of the institution or commencement of foreclosure proceedings, must be
in writing and shall be deemed to have been properly given or served by personal
delivery or by sending same by overnight courier or by depositing same in the
United States Mail, postpaid and registered or certified, return receipt
requested, or as expressly permitted herein, by telegraph, telecopy, telefax or
telex, and addressed as follows:
If to the Agent or RBC:
Royal Bank of Canada
One Liberty Plaza
New York, New York 10006-1404
Attn: Manager, Agency Services
Telecopy No.: (212) 428-2310
With a copy to:
Royal Bank of Canada
One Liberty Plaza, 4th Floor
165 Broadway
New York, New York 10006
Attn: Gordon MacArthur
Telecopy No.: (212) 428-6459
and
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004-1482
Attn: James J. Pastore, Esq.
Telecopy No.: (212) 422-4726
If to the Borrower:
Entertainment Properties Trust
30 Pershing Road, Suite 201
Kansas City, MO 64108
Attn: Gregory K. Silvers, Esq.
Vice President and General Counsel
Telecopy No.: (816) 472-5794
Entertainment Properties Trust
30 Pershing Road, Suite 201
Kansas City, MO 64108
Attn: Fred Kennon, CFO
Telecopy No.: (816) 472-5794
If to the Guarantor:
30 West Pershing, LLC
c/o Entertainment Properties Trust
30 Pershing Road, Suite 201
Kansas City, MO 64108
Attn: Gregory K. Silvers, Esq.
Vice President and General Counsel
Telecopy No.: (816) 472-5794
30 West Pershing, LLC
c/o Entertainment Properties Trust
30 Pershing Road, Suite 201
Kansas City, MO 64108
Attn: Fred Kennon, CFO
Telecopy No.: (816) 472-5794
to any other Lender which is a party hereto, at the address for such Lender set
forth on its signature page hereto, and to any Lender which may hereafter become
a party to this Agreement, at such address as may be designated by such Lender.
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or upon being deposited in the United States Mail as
aforesaid, or if transmitted by telegraph, telecopy, telefax or telex is
permitted, upon being sent and confirmation of receipt. The time period in which
a response to such Notice must be given or any action taken with respect thereto
(if any), however, shall commence to run from the date of receipt if personally
delivered or sent by overnight courier, or if so deposited in the United States
Mail, the earlier of three (3) Business Days following such deposit or the date
of receipt as disclosed on the return receipt. Rejection or other refusal to
accept or the inability to deliver because of changed address for which no
notice was given shall be deemed to be receipt of the Notice sent. By giving at
least fifteen (15) days prior Notice thereof, the Borrower, a Lender or Agent
shall have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America.
ss.20. RELATIONSHIP.
Neither the Agent nor any Lender has any fiduciary relationship with or
fiduciary duty to the Borrower, the Guarantor or their Subsidiaries arising out
of or in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereunder and thereunder, and the relationship between
each Lender and Agent, and the Borrower is solely that of a lender and borrower,
and nothing contained herein or in any of the other Loan Documents shall in any
manner be construed as making the parties hereto partners, joint venturers or
any other relationship other than lender and borrower.
ss.21. USURY.
Notwithstanding anything to the contrary contained herein, if at any time
the interest rate applicable to any Loan, together with all fees, charges and
other amounts which are treated as interest on such Loan under applicable law
(collectively, the "CHARGES"), shall exceed the maximum lawful rate (the
"MAXIMUM RATE") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section 21, shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not able the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.
ss.22. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED HEREIN OR THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE. THE BORROWER AND GUARANTOR AGREE THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR
GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN SS.19. THE BORROWER AND GUARANTOR
HEREBY WAIVE ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
ss.23. POWER OF ATTORNEY.
For purposes of exercising the rights and remedies granted to Agent and the
Lenders under this Agreement, Borrower hereby irrevocably constitutes and
appoints Agent its true and lawful attorney-in-fact, upon and following any
Event of Default, to execute, acknowledge and deliver any instruments and to do
and perform any acts permitted hereunder or by law in the name and on behalf of
the Borrower.
ss.24. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
ss.25. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
ss.26. ENTIRE AGREEMENT, ETC.
The Loan Documents express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated, except as provided
in ss.27 and ss.29.
ss.27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE GUARANTOR, THE AGENT AND THE LENDERS HEREBY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT
OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER
LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY
PROHIBITED BY LAW, THE BORROWER AND GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. THE BORROWER AND GUARANTOR (A) CERTIFY THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH LENDER OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGE THAT THE AGENT AND THE LENDERS
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO
WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SS.27. THE BORROWER AND GUARANTOR ACKNOWLEDGE THAT IT HAS HAD
AN OPPORTUNITY TO REVIEW THIS SS.27 WITH LEGAL COUNSEL AND THAT THE BORROWER AND
GUARANTOR AGREE TO THE FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.
ss.28. DEALINGS WITH THE BORROWER.
The Lenders and their Affiliates may accept deposits from, extend credit to
and generally engage in any kind of banking, trust or other business with the
Borrower, the Guarantor and their Subsidiaries or any of their Affiliates
regardless of the capacity of the Lender hereunder.
ss.29. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement may be given, and any term of
this Agreement or of any other instrument related hereto or mentioned herein may
be amended, and the performance or observance by the Borrower or the Guarantor
of any terms of this Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Agent and the Required Lenders. Notwithstanding
the foregoing, none of the following may occur without the written consent of
each Lender: a reduction in the rate of interest on the Notes; an increase in
the amount of the Commitments of the Lenders (except as provided in ss.18.1 and
ss.2.1); a forgiveness, reductION or waiver of the principal of any unpaid Loan
or any interest thereon or fee payable under the Loan Documents; a change in the
amount of any fee payable to a Lender hereunder; the postponement of any date
fixed for any payment of and fees or any principal of or interest on any Loan;
an extension of the Maturity Date; a change in the manner of distribution of any
payments to the Lenders or the Agent; the release of the Borrower or Guarantor
or any collateral or the subordination of any lien in favor of the Agent on
behalf of the Lenders with respect to any collateral except as otherwise
provided in ss.5.3; an amendment of the definition of Required Lenders or of anY
requirement for consent by all of the Lenders; any modification to require a
Lender to fund a pro rata share of a request for an advance of the Loan made by
the Borrower other than based on its Commitment Percentage; an amendment to this
ss.29; a waiver of any indemnity of a Lender; or an amendment of any provision
of this AgreemenT or the Loan Documents which requires the approval of all of
the Lenders or the Required Lenders to require a lesser number of Lenders to
approve such action. The provisions of ss.14 may not be amended without the
writteN consent of the Agent. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon any of the Borrower or the
Guarantor shall entitle the Borrower or Guarantor to other or further notice or
demand in similar or other circumstances.
ss.30. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
ss.31. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement
and obligation of the Borrower and the Guarantor under this Agreement and the
other Loan Documents.
ss.32. NO UNWRITTEN AGREEMENTS.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. ANY ADDITIONAL TERMS OF THE AGREEMENT BETWEEN THE PARTIES ARE SET FORTH
BELOW.
ss.33. REPLACEMENT NOTES.
Upon receipt of evidence reasonably satisfactory to Borrower of the loss,
theft, destruction or mutilation of any Note, and in the case of any such loss,
theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory to Borrower or, in the case of any such mutilation, upon surrender
and cancellation of the applicable Note, Borrower will execute and deliver, in
lieu thereof, a replacement Note, identical in form and substance to the
applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall
be deemed to refer to such replacement Note.
ss.34. NO THIRD PARTIES BENEFITED.
This Agreement and the other Loan Documents are made and entered into for
the sole protection and legal benefit of the Borrower, the Guarantor, the
Lenders, the Agent and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
ss.35. ADDITIONAL AGENTS.
None of the Lenders or other entities identified on the facing page of,
signature pages of or elsewhere in this Agreement or the other Loan Documents as
a bookrunner, lead arranger or co-arranger shall have any right, power,
obligation, liability, responsibility or duty under this Agreement and the other
Loan Documents as such, other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified shall have or
be deemed to have any fiduciary relationship with any other Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or
other entities so identified in deciding to enter into this Agreement and the
other Loan Documents or in taking or not taking action hereunder or thereunder.
ss.36. LIMITATION ON GUARANTOR'S LIABILITY.
Notwithstanding anything to the contrary contained herein, the Guarantor's
liability under this Agreement (but without limiting in any manner the
definition of the Obligations hereunder) is limited to Guarantor's ownership
interest in the Theatre Assets and only in an amount up to the fair market value
("FMV") of the Theatre Assets as of the date a claim is made hereunder, and the
Agent and the Lenders shall limit their recovery for the Obligations from
Guarantor solely to the Guarantor's interest in the Theatre Assets. If the
Lenders and the Guarantor do not agree as to the FMV, the Agent and the Lenders
and Guarantor shall cooperate in requesting the American Arbitration Association
(the "AAA") to select an appraiser that is an MAI with at least ten (10) years
of experience appraising movie theatre-related properties located in the United
States to determine FMV within five (5) days after request therefor and notify
the Agent and the Lenders and Guarantor of such FMV. If for any reason the Agent
and the Lenders and Guarantor fail to cooperate in requesting the AAA to select
such appraiser within ten (10) days after a claim is made, Lenders may alone
make such request. The AAA appraiser's decision shall be conclusive and binding
on the Lenders and Guarantor. All costs of the AAA and the AAA appraiser will be
borne by the Guarantor.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the undersigned have caused this Agreement to
be executed by its duly authorized representatives as of the date first set
forth above.
BORROWER:
ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By: /s/ Fred L. Kennon
------------------------------------
Name: Fred L. Kennon
Title: Vice President
GUARANTOR:
30 WEST PERSHING, LLC, a Missouri limited
liability company
By: /s/ Fred L. Kennon
------------------------------------
Name: Fred L. Kennon
Title: Vice President
LENDERS:
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Gordon MacArthur
--------------------------------
Name: Gordon MacArthur
Title: Authorized Signatory
JPMORGAN CHASE BANK,
as a Lender
By: /s/ Donald S. Shokrian
--------------------------------
Name: Donald S. Shokrian
Title: Managing Director
AGENT:
ROYAL BANK OF CANADA,
as Agent
By: /s/ Gail Watkin
--------------------------------
Name: Gail Watkin
Title: Manager, Agency
EXHIBIT B
NOTE
$ .00 March , 2004
------------- --
FOR VALUE RECEIVED, the undersigned, ENTERTAINMENT PROPERTIES TRUST, a
Maryland real estate investment trust ("BORROWER"), with an address at 30
Pershing Road, Suite 201, Kansas City, MO 64108, jointly and severally hereby
promises to pay to the order of ("PAYEE") at the office
------------------------
of ROYAL BANK OF CANADA, as Agent for the Lenders ("AGENT"), in accordance with
the terms of that certain Loan Agreement, dated as of March , 2004, as from
--
time to time in effect, among Borrower, Royal Bank of Canada, for itself and as
Agent, 30 West Pershing, LLC, as Guarantor, and such other Lenders as may be
from time to time named therein, (the "LOAN AGREEMENT"), to the extent not
sooner paid, on or before the Maturity Date, the principal sum of
------------
and 00/100 Dollars ($ .00), or such amount as may be advanced by the
----------
Payee under the Loan Agreement as a Loan with daily interest from the date
thereof, computed as provided in the Loan Agreement, on the principal amount
hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Loan Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law, on
overdue installments of interest and late charges at the rates provided in the
Loan Agreement. Interest shall be payable on the dates specified in the Loan
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Loan Agreement.
Payments hereunder shall be made to the Agent for the Payee at One Liberty
Plaza, New York, New York 10006-1404.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Loan Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the Maturity Date and is subject to mandatory prepayment in the amounts and
under the circumstances set forth in the Loan Agreement, and may be prepaid in
whole or from time to time in part, all as set forth in the Loan Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrower and the Lenders and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Lenders exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Lenders in excess of the maximum lawful amount, the interest payable to
the Lenders shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Lenders shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful amount,
an amount equal to any excessive interest shall be applied to the reduction of
the principal balance of the Obligations of the undersigned Borrower or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations of
the undersigned Borrower, such excess shall be refunded to the undersigned
Borrower. All interest paid or agreed to be paid to the Lenders shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full period until payment in full of the principal of the
Obligations of the undersigned Borrower (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between the undersigned Borrower and the Lenders and the
Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in the Loan Agreement.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
The undersigned Borrower and all guarantors and endorsers hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Loan Agreement, and assent to extensions
of time of payment or forbearance or other indulgence without notice.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned has duly executed this Note on the day
and year first above written.
ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By:
----------------------------------
Name:
Title:
EXHIBIT E
LIMITED GUARANTY
WHEREAS, ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment
trust (the "BORROWER"), has this day entered into a Loan Agreement (as amended
or otherwise modified from time to time, the "LOAN AGREEMENT") with ROYAL BANK
OF CANADA, a Canadian chartered bank having a place of business at One Liberty
Plaza, New York, New York 10006-1404, individually and as administrative agent
(the "AGENT") for itself and the Lenders under the Loan Agreement (individually
and collectively, the "BANK") in connection with a credit facility in the total
aggregate principal amount of Sixty-Five Million and 00/100 ($65,000,000.00)
(the "LOAN").
WHEREAS, the undersigned, 30 West Pershing, LLC, a Missouri limited
liability company (the "GUARANTOR"), will derive substantial direct and indirect
benefit from the transactions contemplated by the Loan Agreement, and has
determined that it is necessary or convenient to the conduct, promotion or
attainment of the business of the Guarantor to guaranty the Liabilities (as
defined herein) of the Borrower under the Loan Agreement.
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meaning specified in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Bank to enter into the Loan Agreement and to make extensions of credit
thereunder, the Guarantor agrees as follows:
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned Guarantor, unconditionally guaranties,
in accordance with the terms hereof and without any prior written notice, the
payment and performance of all of the Liabilities (as defined herein) of
Borrower to the Bank.
The following terms as used herein shall have the meanings set forth below:
"Liability" and "Liabilities" include, without limitation, any and all
liabilities, debts, and obligations of the Borrower to the Bank, each of every
kind, nature, and description now existing or hereafter arising. "Liabilities"
also includes, without limitation, each obligation to repay all loans, advances,
indebtedness, notes, obligations, overdrafts, and amounts now or hereafter at
any time owing by the Borrower to the Bank pursuant to the Loan Agreement
(including all future advances or the like whether or not given pursuant to a
commitment by the Bank), whether or not any of such are liquidated,
unliquidated, primary, secondary, secured, unsecured, direct, indirect,
absolute, contingent, or of any other type, nature, or description, or by reason
of any cause of action which the Bank may hold against the Borrower on account
of or relating to the Loan. "Liabilities" also includes, without limitation, all
notes and other obligations of the Borrower now or hereafter assigned to or held
by the Bank, each of every kind, nature and description, which may be due and
owning from time to time under or pursuant to the Loan Agreement. "Liabilities"
also includes, without limitation, all interest and other amounts which may be
charged to the Borrower and/or which may be due from the Borrower to the Bank
from time to time due and owing under or pursuant to the Loan Agreement; all
fees and charges in connection with any account maintained by the Borrower and
the expenses incurred or paid by the Bank in respect of any agreement between
the Borrower and the Bank or instrument furnished by the Borrower to the Bank
(including, without limitation, Costs of Collection (as defined below),
reasonable attorneys' fees, and all court and litigation costs and expenses).
"Liabilities" also includes, without limitation any and all obligations of the
Borrower to act or to refrain from acting in accordance with the terms,
provisions, and covenants of any agreement between the Borrower and the Bank or
instrument furnished by the Borrower to the Bank. As used herein, the term
"indirect" includes without limitation, all obligations and liabilities which
the Bank may incur or become liable for, on account of, or as a result of any
transactions between the Bank and the Borrower including, without limitation,
any which may arise out of any letter of credit or acceptance, or similar
instrument issued or obligation incurred by the Bank for the account of the
Borrower; any which may arise out of any action brought or threatened against
the Bank by the Borrower, any guarantor or endorser of the Liabilities of the
Borrower, or by any other person in connection with the Liabilities, except in
the event that final judgment enters against the Bank, but in each case subject
in all events to the provisions of the Loan Documents. The Bank's books and
records shall be prima facie evidence of the Borrower's indebtedness to the Bank
absent manifest error.
"Costs of Collection" includes, without limitation, all reasonable
attorneys' fees, and reasonable out-of-pocket expenses incurred by the Bank's
attorneys, and all costs incurred by the Bank in the administration of the
Liabilities, this Guaranty, and all other instruments and agreements executed in
connection with or relating to the Liabilities including, without limitation,
costs and expenses associated with reasonable travel on behalf of the Bank.
Costs of Collection also includes, without limitation, all reasonable attorneys'
fees, reasonable out-of-pocket expenses incurred by the Bank's attorneys, and
all reasonable costs and expenses incurred by the Bank, including, without
limitation, costs and expenses associated with reasonable travel on behalf of
the Bank, which costs and expenses are directly related to or in respect of the
Bank's efforts to preserve, protect, collect, or any of the Bank's rights and
remedies against or in respect of the Borrower, any other guarantor or other
person liable in respect of the Liabilities or any collateral granted to the
Bank by the Borrower, such guarantor, or other person (whether or not suit is
instituted in connection with such efforts). The Costs of Collection shall be
paid by the undersigned upon demand made by the Bank and shall be added to the
Liabilities of the Borrower to the Bank, as if such had been lent, advanced, and
credited by the Bank to, or for the benefit of, the Borrower.
For said good and valuable consideration, the undersigned also shall
indemnify, defend, and hold the Bank harmless of and from any claim brought or
threatened against the Bank by the Borrower, the undersigned, any other
guarantor or endorser of the Liabilities or any other person (as well as from
reasonable attorneys' fees and expenses in connection therewith) on account of
the Bank's relationship with the Borrower, the undersigned, or any other
guarantor or endorser of the Liabilities (each of which may be defended,
compromised, settled, or pursued by the Bank with counsel of the Bank's
selection, but at the expense of the undersigned), unless the same was the
result of the Bank's gross negligence or willful misconduct, and except as
otherwise providing in the Loan Documents.
Notwithstanding anything to the contrary contained herein, the Guarantor's
liability under this Guaranty (but without limiting in any manner the definition
of the Liabilities hereunder) is limited to Guarantor's ownership interest in
the Theatre Assets and only in an amount up to the fair market value ("FMV") of
the Theatre Assets as of the date a claim is made hereunder, and Bank shall
limit its recovery for the Liabilities from Guarantor solely to the Guarantor's
interest in the Theatre Assets. If the Bank and the Guarantor do not agree as to
the FMV, Bank and Guarantor shall cooperate in requesting the American
Arbitration Association (the "AAA") to select an appraiser that is an MAI with
at least ten (10) years of experience appraising movie theatre-related
properties located in the United States to determine FMV within five (5) days
after request therefor and notify Bank and Guarantor of such FMV. If for any
reason Bank and Guarantor fail to cooperate in requesting the AAA to select such
appraiser within ten (10) days after a claim is made, Bank may alone make such
request. The AAA appraiser's decision shall be conclusive and binding on Bank
and Guarantor. All costs of the AAA and the AAA appraiser will be borne by the
Guarantor.
The undersigned will pay on demand interest on all amounts due to the Bank
under this Guaranty, or arising under any documents, instruments, or agreements
relative to any collateral securing this Guaranty, from the time the Bank first
demands payment of this Guaranty at a rate equal to the highest rate chargeable
to the Borrower after the earlier of (i) demand or (ii) the occurrence of any
Event of Default; PROVIDED, HOWEVER, that such amount of interest shall not
exceed the interest that would have been, but for this Guaranty, paid by the
Borrower in respect of the Liabilities.
Any and all deposits or other sums at any time credited by or due to the
undersigned from the Bank or any of its banking or lending affiliates, or any
bank acting as a participant under any loan arrangement between the Bank and the
Borrower, and any cash, securities, instruments or other property of the
undersigned in the possession of the Bank, or any of its banking or lending
affiliates, or any bank acting as a participant under any loan arrangement
between the Bank and the Borrower, whether for safekeeping or otherwise, or in
transit to or from the Bank or any of its banking or lending affiliates or any
such participant, or in the possession of any third party acting on the Bank's
behalf (regardless of the reason the Bank had received same or whether the Bank
has conditionally released the same) shall at all times constitute security for
all of the Liabilities and for all obligations of the undersigned to the Bank
and may be applied or set off against such Liabilities and against the
obligations of the undersigned to the Bank including, without limitation, those
arising hereunder, at any time, whether or not such are then due and whether or
not other collateral is then available to the Bank.
The obligations of the undersigned hereunder shall not be affected by any
fraudulent, illegal, or improper act by the Borrower, nor by any release,
discharge or invalidation, by operation of law or otherwise, of the Liabilities,
or by the legal incapacity of the Borrower, the undersigned, or any other person
liable or obligated to the Bank for or on the Liabilities. The undersigned also
waives any and all defenses relating to or resulting from Bank's failure to
acquire, maintain or perfect any security interest or mortgage lien. Interest
and Costs of Collection shall continue to accrue and shall continue to be deemed
Liabilities guarantied hereby notwithstanding any stay to the enforcement
thereof against the Borrower or disallowance of any claim therefor against the
Borrower.
Unless sooner terminated, this Guaranty shall continue to be effective or
be reinstated, as the case may be, if at any time payment of all or any part of
the Liabilities is rescinded or otherwise must be restored by the Bank to the
Borrower or to the creditors of the Borrower or any representative of the
Borrower or representative of the Borrower's creditors upon the insolvency,
bankruptcy or reorganization of the Borrower or to the undersigned or to the
creditors of the undersigned or any representative of the undersigned or
representative of the creditors of the undersigned upon the insolvency,
bankruptcy or reorganization of the undersigned, or otherwise, all as though
such payments had not been made.
The within instrument incorporates all discussions and negotiations between
the undersigned and the Bank concerning the guaranty and indemnification
provided by the undersigned hereby. No such discussions or negotiations shall
limit, modify, or otherwise affect the provisions hereof. No provision hereof
may be altered amended, waived, canceled or modified, except by a written
instrument executed, sealed and acknowledged by a duly authorized officer of the
Bank and by the undersigned.
The undersigned waives presentment, demand, notice, and protest with
respect to the Liabilities or this Guaranty, and further waives any delay on the
part of the Bank, and further waives any right to require the Bank to pursue or
to proceed against the Borrower or any collateral which the Bank might have been
granted to secure the obligations of the undersigned hereunder, and further
waives notice of acceptance of this Guaranty.
The books and records of the Bank showing the account between the Bank and
the Borrower shall be admissible in any action or proceeding and constitute
prima facie evidence and proof of the items contained therein absent manifest
error.
The obligations of the undersigned hereunder are primary, with no recourse
necessary by the Bank against the Borrower or any collateral given to secure the
Liabilities or against any other person liable for or on the Liabilities prior
to proceeding against the undersigned hereunder. The undersigned assents to any
indulgence or waiver which the Bank may grant or give the Borrower and/or any
other person liable or obligated to the Bank for or on the Liabilities. The
undersigned authorizes the Bank to alter, amend, cancel, waive, or modify any
term or condition of the Liabilities and of the obligations of any other person
liable or obligated to the Bank for or on the Liabilities, without notice to, or
consent from, the undersigned. No compromise, settlement, or release by the Bank
of the Liabilities or of the obligations of any such other person (whether or
not jointly liable with the undersigned) and no release of any collateral
securing the Liabilities or securing the obligations of any such other person
shall affect the obligations of the undersigned to the Bank hereunder.
The undersigned shall not exercise any right of subrogation, reimbursement,
indemnity, contribution, or the like (including any right to proceed upon any
collateral granted by the Borrower to the undersigned) against the Borrower or
any person liable or obligated for or on the Liabilities in respect of any of
the Liabilities prior to the discharge of the Liabilities.
The undersigned agrees that prior to discharge of the Liabilities the
undersigned shall not have, and hereby expressly waives, (1) any right to
subrogation or indemnification, and any other right to payment from or
reimbursement by the Borrower, in connection with or as consequence of any
payment made by the undersigned hereunder (2) any right to enforce any right or
remedy which the Bank has or may hereafter have against the Borrower, and (3)
any benefit of, and any right to participate in any collateral now or hereafter
held by the Bank , until such time as the obligations hereunder are paid in full
or otherwise terminated.
This instrument shall inure to the benefit of the Bank, its successors and
assigns, shall be binding upon the successors, representatives, and assigns of
the undersigned, and shall apply to all Liabilities of the Borrower and any
successor to the Borrower, including any successor by operation of law.
The rights, remedies, powers, privileges, and discretions of the Bank
hereunder (hereinafter the "Bank's Rights and Remedies") shall be cumulative and
not exclusive of any rights or remedies which it would otherwise have. No delay
or omission by the Bank in exercising or enforcing any of the Bank's Rights and
Remedies shall operate as, or constitute, a waiver thereof. No waiver by the
Bank of any of the Bank's Rights and Remedies or of any default or remedies
under any other agreement with the undersigned, or of any default under any
agreement with the Borrower, or any other person liable or obligated for or on
the Liabilities, shall operate as a waiver of any other of the Bank's Rights and
Remedies or of any other default or remedy hereunder or thereunder. No exercise
of any of the Bank's Rights and Remedies and no other agreement or transaction
of whatever nature entered into between the Bank and the undersigned, the Bank
and the Borrower, and/or the Bank and any such other person at any time shall
preclude any other exercise of the Bank's Rights and Remedies nor shall waiver
by the Bank of any of the Bank's Rights and Remedies or of any default or
remedies under any other agreement with the undersigned, or of any default under
any agreement with the Borrower, or any other person liable or obligated for or
on the Liabilities on any one occasion be deemed a continuing waiver. All of the
Bank's Rights and Remedies and all of the Bank's rights, remedies, powers,
privileges, and discretions under any other agreement or transaction with the
undersigned, the Borrower, or any such other person shall be cumulative and not
alternative or exclusive, and may be exercised by the Bank at such time or times
and in such order of preference as the Bank in its sole discretion may
determine.
This instrument and all documents which have been or may be hereinafter
furnished by the undersigned to the Bank may be reproduced by the Bank by any
photographic, photostatic, microfilm, microcard, miniature photographic,
xerographic, or similar process, and the Bank may destroy the original from
which such document was so reproduced. Any such reproduction shall be admissible
in evidence as the original itself in any judicial or administrative proceeding
if the original cannot be located after reasonable efforts.
This instrument shall be governed, construed, and interpreted in accordance
with the laws of the State of New York. The undersigned submits to the
jurisdiction of the courts of the State of New York for all matters in
connection herewith as well as for all purposes in connection with any other
relationship between the undersigned and the Bank, and, in furtherance of such
agreement, the undersigned hereby expressly waives any and all objections it may
have as to venue in such courts. In the event that the undersigned does not
maintain a principal office or residence in New York the undersigned hereby
designates the Secretary of State of New York as the agent for service of
process for the undersigned in any action or proceeding coming out of this
Guaranty. It is the intention of the undersigned that the provisions of the
within Guaranty and indemnification be liberally construed to the end that the
Bank may be put in as good a position as if the Borrower had promptly,
punctually, and faithfully performed all Liabilities and the undersigned had
promptly, punctually, and faithfully performed hereunder.
Any determination that any provision herein is invalid, illegal, or
unenforceable in any respect in any instance shall not affect the validity,
legality, or enforceability of such provision in any other instance and shall
not affect the validity, legality, or enforceability of any other provision
contained herein. In the event of any conflict between the terms of this
Guaranty and the terms of the Loan Agreement, the terms of the Loan Agreement
shall control.
THE UNDERSIGNED WAIVES ANY RIGHT TO TRIAL BY JURY THE UNDERSIGNED MAY HAVE
IN ANY ACTION OR PROCEEDING, IN LAW OR EQUITY, IN CONNECTION WITH THIS GUARANTY.
THE UNDERSIGNED AND THE BANK HEREBY KNOWINGLY AND VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS GUARANTY. THE UNDERSIGNED HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THE THAT THE BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE UNDERSIGNED
ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO THE BANK'S LENDING
RELATIONSHIP WITH THE BORROWER BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
PARAGRAPH.
The undersigned certifies that the undersigned read this Guaranty prior to
its execution.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as a sealed
instrument as of the 30th day of March, 2004.
Witnessed: 30 WEST PERSHING, LLC
By:
- ----------------------------- -----------------------------------
Name:
Title:
Address: 30 West Pershing Road, Suite 201
Kansas City, MO 64108
EXHIBIT H
FORM OF REQUEST FOR LOAN
Royal Bank of Canada, as Agent
Agency Services Group
Royal Bank Plaza
P.O. Box 50, 200 Bay Street
12th Floor, South Tower
Toronto, Ontario
M5J 2W7
Ladies and Gentlemen:
Pursuant to the provisions of ss.2.7 of the Loan Agreement dated as of
March 30, 2004 (as the same maY hereafter be amended, the "Loan Agreement"),
among Entertainment Properties Trust (the "Borrower"), Royal Bank of Canada for
itself and as Agent, 30 West Pershing, LLC, as Guarantor, and the other Lenders
from time to time party thereto, the undersigned Borrower hereby requests and
certifies as follows:
1. LOAN. The undersigned Borrower hereby requests a Loan under ss.2.2 of
the Loan Agreement:
Principal Amount: $
Type (Base Rate):
Drawdown Date:
by wire transfer in accordance with the instructions attached hereto.
2. USE OF PROCEEDS. Such Loan shall be used for the following purposes
permitted by ss.2.9 of thE Loan Agreement:
[DESCRIBE]
3. NO DEFAULT. The undersigned chief financial officer or chief accounting
officer of Borrower certifies that the Borrower and the Guarantor are and will
be in compliance with all covenants under the Loan Documents after giving effect
to the making of the Loan requested hereby. No condemnation proceedings are
pending or, to the undersigned knowledge, threatened against any Theatre Asset.
4. REPRESENTATIONS TRUE. Each of the representations and warranties made by
or on behalf of the Borrower, the Guarantor or their Subsidiaries, contained in
the Loan Agreement, in the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with the Loan Agreement was true in all
material respects as of the date on which it was made and at and as of the
Drawdown Date for the Loan requested hereby, with the same effect as if made at
and as of such Drawdown Date, except to the extent of changes resulting from
transactions permitted by the Loan Documents (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct only as of such specified date),
and no Default or Event of Default has occurred and is continuing.
5. OTHER CONDITIONS. All other conditions to the making of the Loan
requested hereby set forth in the Loan Agreement have been satisfied.
6. DEFINITIONS. Terms defined in the Loan Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, the undersigned has duly executed this request this
day of March, 2004.
- -----
ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By:
-------------------------------
Name:
Title:
EXHIBIT K
FORM OF COMPLIANCE CERTIFICATE
Royal Bank of Canada, as Agent
Agency Services Group
Royal Bank Plaza
P.O. Box 50, 200 Bay Street
12th Floor, South Tower
Toronto, Ontario
M5J 2W7
Ladies and Gentlemen:
Reference is made to the Loan Agreement dated as of March 30, 2004 (as the
same may hereafter be amended, the "LOAN AGREEMENT") by and among Entertainment
Properties Trust (the "BORROWER"), Royal Bank of Canada for itself and as Agent,
30 West Pershing, LLC, as Guarantor, and the other Lenders from time to time
party thereto. Terms defined in the Loan Agreement and not otherwise defined
herein are used herein as defined in the Loan Agreement.
Pursuant to the Loan Agreement, Borrower is furnishing to you herewith (or
have most recently furnished to you) the consolidated financial statement of
Borrower, Guarantor and their Consolidated Subsidiaries for the fiscal period
ended (the "BALANCE SHEET DATE"). Such financial statement has
---------------
been prepared in accordance with GAAP and presents fairly the consolidated
financial position of Borrower, Guarantor and their Consolidated Subsidiaries
covered thereby at the date thereof and the results of its operations for the
periods covered thereby, subject in the case of interim statements only to
normal year-end audit adjustments.
This certificate is submitted in compliance with requirements of ss.7.4(c),
ss.7.5(e) or ss.10.12 of the LOan Agreement. If this certificate is provided
under a provision other than ss.7.4(c), the calculations provided beloW are made
using the consolidated financial statement of Borrower as of the Balance Sheet
Date adjusted in the best good faith estimate of Borrower to give effect to the
making of a Loan, acquisition or disposition of property or other event that
occasions the preparation of this certificate; and the nature of such event and
the estimate of Borrower of its effects are set forth in reasonable detail in an
attachment hereto. The undersigned officer is the chief financial officer or
chief accounting officer of Borrower.
The undersigned representatives have caused the provisions of the Loan
Documents to be reviewed and have no knowledge of any Default or Event of
Default. (Note: If the signer does have knowledge of any Default or Event of
Default, the form of certificate should be revised to specify the Default or
Event of Default, the nature thereof and the actions taken, being taken or
proposed to be taken by the Borrower with respect thereto.)
Borrower is providing the attached information to demonstrate compliance as
of the date hereof with the covenants described in the attachment hereto.
IN WITNESS WHEREOF, the undersigned have duly executed this Compliance
Certificate this day of , 200 .
----- -------------- --
ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By:
------------------------------
Name:
Title:
EXHIBIT L
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to that certain Loan Agreement dated as of March 30,
2004, (as the same may be amended or modified from time to time, the "LOAN
AGREEMENT"), among Entertainment Properties Trust (the "BORROWER"), 30 West
Pershing, LLC, as guarantor thereunder, the financial institutions party
thereto, as lenders and Royal Bank of Canada, for itself and as agent for the
Lenders (in such capacity, the "AGENT"). Terms defined in the Loan Agreement are
used herein with the same meanings.
1. The undersigned assignor (the "ASSIGNOR") hereby sells and assigns, without
recourse, to the undersigned assignee (the "ASSIGNEE"), and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
effective date set forth below, the interests set forth below (the "ASSIGNED
INTEREST") in the Assignor's rights and obligations under the Loan Agreement,
including, without limitation, the interests set forth below in the Commitments
of the Assignor on the effective date and the Loans owing to the Assignor which
are outstanding on the effective date, together with unpaid interest accrued on
the assigned Loans to the effective date and the amount, if any, set forth below
of the fees accrued to the effective date for the account of the Assignor. Each
of the Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in the Loan Agreement, a
copy of which has been received by each such party. From and after the effective
date (i) the Assignee shall be a party to and be bound by the provisions of the
Loan Agreement and, to the extent of the interest assigned by this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and under
the Loan Documents and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Agreement.
2. This Assignment and Acceptance is being delivered to the Agent together with
(i) the Notes evidencing the Loans included in the Assigned Interest, (ii) if
the Assignee is organized under the laws of a jurisdiction outside the United
States, such forms as may be required by the Agent, duly completed and executed
by such Assignee and (iii) if the Assignee is not already a Lender under the
Loan Agreement, an Administrative Questionnaire in the form of Exhibit L-1 to
the Loan Agreement.
3. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective date of Assignment (may not be fewer than 5 Business Days after the
Date of Assignment):
Percentage Assigned of Commitments (set forth,
as a percentage of the Aggregate
Allocations: %
-----------
Principal Amount
Assigned: $
Fees Assigned (if any):
The terms set forth above are hereby agreed to:
as Assignor
- -----------------------------
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
as Assignor
- -----------------------------
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
EXHIBIT L-1
FORM OF ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via FAX to the
attention of Agency Services Group, Royal Bank of Canada, as soon as possible.
Fax Number: (416) 842-4023
LEGAL NAME TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Backup Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
TAX WITHHOLDING:
Non Resident Alien Y*
* Form 4224 Enclosed
Tax ID Number
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
MAILINGS:
Please specify who should receive financial information:
Name:
Street Address:
City, State, Zip Code:
It is very important that all of the above information is accurately filled in
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify me of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call me at (416) 842-3905.
PARTICIPANT INFORMATION
Participant Name:
Address:
Primary Contact:
Title:
Department:
Phone Number:
Facsimile 9:
Alternate Contact:
Phone Number:
Facsimile #:
Account Officer:
Phone Number:
Tax ID #:
Commitment Percentage:
Maximum Commitment:
Interest Rate and Fees:
WIRE INSTRUCTIONS TO YOUR BANK:
Bank Name:
Department Name:
ABA 9:
A/C #:
Attention:
Client Name/Ref
AGENT'S WIRE INSTRUCTIONS:
Name:
ABA 9:
A/C #: (to be assigned)
Tax ID #:
Attention:
Client Name/Ref
SCHEDULE 1
LENDERS AND COMMITMENTS
Commitment
LENDER COMMITMENT PERCENTAGE
Royal Bank of Canada $32,500,000.00 50%
One Liberty Plaza, 4th Floor
165 Broadway
New York, NY 10006
Attn: Gordon MacArthur
Tel: (212) 428-2324
Fax: (212) 428-6459
JPMorgan Chase Bank $32,500,000.00 50%
270 Park Avenue, 4th Floor
New York, NY 10017
Attn: Donald Shokrian
Tel: (212) 270-0606
Fax: (212) 270-0213
SCHEDULE 2
DESCRIPTION OF THEATRE ASSETS
-------------------------------- --------------------------
PROPERTY LOCATION
-------------------------------- --------------------------
DEER VALLEY 30 PHOENIX, AZ
-------------------------------- --------------------------
HAMILTON 24 HAMILTON, NJ
-------------------------------- --------------------------
MESA 24 MESA, AZ
-------------------------------- --------------------------
SCHEDULE 3
ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS
With respect to any Potential Collateral, each of the following:
(a) SECURITY DOCUMENTS. Such security documents relating to such Real
Estate as the Agent shall in good faith require, duly executed and delivered by
the respective parties thereto.
(b) ENFORCEABILITY OPINION. If required by the Agent, the favorable legal
opinion of counsel to Guarantor, from counsel reasonably acceptable to the Agent
and qualified to practice in the State in which such Real Estate is located,
addressed to the Lenders and the Agent covering the enforceability of such
security documents and such other matters as the Agent shall reasonably request.
(c) PERFECTION OF LIENS. Evidence reasonably satisfactory to the Agent that
the Security Documents are effective to create in favor of the Agent a legal,
valid and enforceable first lien or security title and security interest in such
Real Estate and that all filings, recordings, deliveries of instruments and
other actions necessary or desirable to protect and preserve such liens or
security title or security interests have been duly effected.
(d) SURVEY AND TAXES. The Survey of such Real Estate, together with the
Surveyor Certification and evidence of payment of all real estate taxes,
assessments and municipal charges on such Real Estate which on the date of
determination are required to have been paid under ss.7.8.
(e) TITLE INSURANCE; TITLE EXCEPTION DOCUMENTS. The Title Policy covering
such Real Estate, including all endorsements thereto, and together with proof of
payment of all fees and premiums for such policy, and true and accurate copies
of all documents listed as exceptions under such policy.
(f) UCC CERTIFICATION. A certification from the Title Insurance Company,
records search firm, or counsel satisfactory to the Agent that a search of the
appropriate public records disclosed no conditional sales contracts, security
agreements, chattel mortgages, leases of personalty, financing statements or
title retention agreements which affect any property, rights or interests of the
Guarantor that are or are intended to be subject to the security interest,
security title, assignments, and mortgage liens created by the security
documents relating to such Real Estate except to the extent that the same are
discharged and removed prior to or simultaneously with the inclusion of the Real
Estate in the Potential Collateral.
(g) MANAGEMENT AGREEMENT. A true copy of the Management Agreement, if any,
relating to such Real Estate, which shall be in form and substance reasonably
satisfactory to the Agent.
(h) LEASES. True copies of all Tenant Leases relating to such Real Estate
together with Lease Summaries for all such Leases if available, together with
true copies of such other Leases (and Lease Summaries with respect thereto) as
the Agent or the Required Lenders may request and a Rent Roll for such Real
Estate certified by the Guarantor as accurate and complete as of a recent date,
each of which shall be in form and substance reasonably satisfactory to the
Required Lenders.
(i) LEASE FORM. The form of Lease, if any, to be used by the Guarantor in
connection with future leasing of such property, which shall be in form and
substance reasonably satisfactory to the Agent.
(j) SUBORDINATION AGREEMENTS. A Subordination, Attornment and
Non-Disturbance Agreement from each Tenant and each other tenant of such Real
Estate as required by the Agent (provided that Guarantor shall only be obligated
to use reasonable efforts to obtain such agreements).
(k) ESTOPPEL CERTIFICATES. Estoppel certificates from each Tenant, and from
all other tenants of such Real Estate as requested by Agent, such certificates
to be dated not more than sixty (60) days prior to the inclusion of such Real
Estate in the Potential Collateral, each such estoppel certificate to be in form
and substance reasonably satisfactory to the Agent, provided, however, that
Guarantor shall only be obligated to use reasonable efforts to obtain such
estoppels.
(l) CERTIFICATES OF INSURANCE. Each of (i) a current certificate of
insurance as to the insurance maintained by the Borrower or Guarantor on such
Real Estate (including flood insurance if necessary) from the insurer or an
independent insurance broker dated as of the date of determination, identifying
insurers, types of insurance, insurance limits, and policy terms; (ii) certified
copies of all policies evidencing such insurance (or certificates therefor
signed by the insurer or an agent authorized to bind the insurer); and (iii)
such further information and certificates from the Borrower or Guarantor, its
insurers and insurance brokers as the Agent may reasonably request, all of which
shall be in compliance with the requirements of this Agreement.
(m) CERTIFICATION REGARDING PHYSICAL CONDITION. A certification from the
chief executive or chief financial officer of Borrower that such Real Estate
complies with the terms of ss.6.23.
(n) HAZARDOUS SUBSTANCE ASSESSMENTS. A hazardous waste site assessment
report addressed to the Agent (or the subject of a reliance letter addressed to,
and in a form reasonably satisfactory to, the Agent) concerning Hazardous
Substances and asbestos on such Real Estate dated or updated not more than three
months prior to the inclusion of such Real Estate in the Potential Collateral,
from the Environmental Engineer, such report to contain no qualifications except
those that are acceptable to the Required Lenders in their sole discretion and
to otherwise be in form and substance satisfactory to the Agent in its sole
discretion.
(o) ZONING AND LAND USE COMPLIANCE. Such evidence regarding zoning and land
use compliance as the Agent may require and approve in its reasonable
discretion.
(p) BUDGET. An operating and capital expenditure budget for such Real
Estate in form and substance reasonably satisfactory to the Required Lenders.
The capital expenditure budget for the Real Estate must show adequate reserves
or cash flow to cover capital expenditure needs of the Real Estate.
(q) OPERATING STATEMENTS. Operating statements for such Real Estate in the
form of such statements delivered to the Lenders under ss.7.4(c) covering each
of the four fiscal quarters ending immediately prior to thE addition of such
Real Estate to the Potential Collateral, to the extent available. Such operating
statements shall be subject to the approval of the Required Lenders.
(r) ENVIRONMENTAL DISCLOSURE. Such evidence regarding compliance with
ss.6.20(d) as Agent maY require.
(s) ADDITIONAL DOCUMENTS. Such other agreements, documents, certificates,
reports or assurances as the Agent may reasonably require.
SCHEDULE 6.3
LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
SCHEDULE 6.5
MATERIAL CHANGES TO MORTGAGED PROPERTIES
SCHEDULE 6.7
PENDING LITIGATION OF BORROWER
SCHEDULE 6.15
LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES
SCHEDULE 6.20
ENVIRONMENTAL RELEASES
SCHEDULE 6.21(A)
SUBSIDIARIES OF THE BORROWER AND GUARANTOR
SCHEDULE 6.21(B)
AFFILIATES OF THE BORROWER, THE GUARANTOR AND THEIR SUBSIDIARIES
SCHEDULE 6.22
MONETARY DEFAULTS UNDER LEASES
SCHEDULE 6.25
MATERIAL LOAN AGREEMENTS