EXHIBIT 10.1
AMENDED AND RESTATED
MASTER CREDIT AGREEMENT
DATED AS OF MARCH 29, 2004
Among
30 WEST PERSHING, LLC
EPR HIALEAH, INC.
WESTCOL CENTER, LLC
(individually and collectively, the "BORROWER")
and
ENTERTAINMENT PROPERTIES TRUST
("EPR" and/or "GUARANTOR")
FLEET NATIONAL BANK, as Agent and Lender,
ROYAL BANK OF CANADA, as Syndication Agent,
JPMORGAN CHASE BANK, as Documentation Agent,
and
THE OTHER LENDERS WHICH ARE OR MAY BECOME PARTIES TO THIS
AGREEMENT
TABLE OF CONTENTS
Page
ss.1. DEFINITIONS AND RULES OF INTERPRETATION............................9
ss.1.1 Definitions........................................................9
ss.1.2 Rules of Interpretation...........................................30
ss.1.3 Accounting Terms and Determinations...............................31
ss.2. THE REVOLVING CREDIT FACILITY.....................................32
ss.2.1 Increase Option...................................................32
ss.2.2 Revolving Credit Loans............................................32
ss.2.3 Facility Unused Fee...............................................33
ss.2.4 Intentionally Deleted.............................................33
ss.2.5 Intentionally Deleted.............................................33
ss.2.6 Interest on Loans.................................................33
ss.2.7 Requests for Revolving Credit Loans...............................34
ss.2.8 Funds for Revolving Credit Loans..................................35
ss.2.9 Use of Proceeds...................................................36
ss.2.10 Letters of Credit.................................................36
ss.2.11 Appointment of Borrower Agent.....................................39
ss.3. REPAYMENT OF THE LOANS............................................40
ss.3.1 Stated Maturity...................................................40
ss.3.2 Mandatory Prepayments.............................................40
ss.3.3 Optional Prepayments..............................................41
ss.3.4 Partial Prepayments...............................................41
ss.3.5 Extension Option..................................................41
ss.3.6 Effect of Prepayments.............................................41
ss.4. CERTAIN GENERAL PROVISIONS........................................41
ss.4.1 Conversion Options................................................41
ss.4.2 Closing Fee.......................................................42
ss.4.3 Agent's Fee.......................................................42
ss.4.4 Funds for Payments................................................43
ss.4.5 Computations......................................................44
ss.4.6 Inability to Determine LIBOR......................................44
ss.4.7 Illegality........................................................45
ss.4.8 Additional Interest...............................................45
ss.4.9 Additional Costs, Etc.............................................45
ss.4.10 Capital Adequacy..................................................47
ss.4.11 Indemnity of Borrower.............................................47
ss.4.12 Default Interest; Late Charge.....................................47
ss.4.13 Certificate.......................................................47
ss.4.14 Limitation on Interest............................................47
ss.4.15 Certain Provisions Relating to Increased Costs....................48
ss.5. COLLATERAL SECURITY...............................................49
ss.5.1 Collateral........................................................49
ss.5.2 Valuation of Mortgaged Properties.................................49
ss.5.3 Replacement or Addition of Mortgaged Properties...................49
ss.5.4 Release of Mortgaged Property.....................................51
ss.5.5 Release of Collateral.............................................51
ss.6. REPRESENTATIONS AND WARRANTIES....................................51
ss.6.1 Corporate Authority, Etc..........................................51
ss.6.2 Governmental Approvals............................................56
ss.6.3 Title to Properties...............................................56
ss.6.4 Financial Statements..............................................57
ss.6.5 No Material Changes...............................................57
ss.6.6 Franchises, Patents, Copyrights, Etc..............................58
ss.6.7 Litigation........................................................58
ss.6.8 No Materially Adverse Contracts, Etc..............................58
ss.6.9 Compliance with Other Instruments, Laws, Etc......................58
ss.6.10 Tax Status........................................................58
ss.6.11 No Event of Default...............................................58
ss.6.12 Holding Company and Investment Company Acts.......................58
ss.6.13 Absence of UCC Financing Statements, Etc..........................59
ss.6.14 Setoff, Etc.......................................................59
ss.6.15 Certain Transactions..............................................59
ss.6.16 Employee Benefit Plans............................................59
ss.6.17 Disclosure........................................................59
ss.6.18 Trade Name; Place of Business.....................................59
ss.6.19 Regulations T, U and X............................................59
ss.6.20 Environmental Compliance..........................................59
ss.6.21 Subsidiaries......................................................62
ss.6.22 Leases............................................................62
ss.6.23 Property..........................................................63
ss.6.24 Brokers...........................................................63
ss.6.25 Other Debt........................................................64
ss.6.26 Solvency..........................................................64
ss.6.27 No Bankruptcy Filing..............................................64
ss.6.28 No Fraudulent Intent..............................................64
ss.6.29 Transaction in Best Interests of Borrower; Consideration..........64
ss.6.30 Capitalization....................................................65
ss.6.31 Notice of REIT Status.............................................65
ss.6.30 Intentionally Deleted
ss.6.33 Certificates of Occupancy; Licenses...............................65
ss.6.34 Insurance.........................................................65
ss.6.35 Intentionally Deleted.............................................65
ss.7. AFFIRMATIVE COVENANTS.............................................65
ss.7.1 Punctual Payment..................................................65
ss.7.2 Maintenance of Office.............................................65
ss.7.3 Records and Accounts..............................................66
ss.7.4 Financial Statements, Certificates and Information................66
ss.7.5 Notices...........................................................68
ss.7.6 Existence; Maintenance of Properties; Rating Agency Surveillance..70
ss.7.7 Insurance.........................................................71
ss.7.8 Taxes; Liens......................................................75
ss.7.9 Inspection of Properties and Books................................75
ss.7.10 Compliance with Laws, Contracts, Licenses, and Permits............76
ss.7.11 Further Assurances................................................76
ss.7.12 Management........................................................76
ss.7.13 Leases of the Property............................................76
ss.7.14 Business Operations...............................................77
ss.7.15 Registered Servicemark............................................77
ss.7.16 Deposit of Proceeds; Other Bank Accounts..........................77
ss.7.17 Distributions of Income to the Borrower...........................77
ss.7.18 Limiting Agreements...............................................78
ss.7.19 Intentionally Deleted.............................................78
ss.7.20 Plan Assets.......................................................78
ss.7.21 Certificates of Occupancy; Licenses...............................78
ss.7.22 Cooperation with Rating Agencies..................................78
ss.7.23 Ground Leases.....................................................78
ss.8. NEGATIVE COVENANTS................................................83
ss.8.1 Restrictions on Indebtedness......................................83
ss.8.2 Restrictions on Liens, Etc........................................84
ss.8.3 Restrictions on Investments.......................................85
ss.8.4 Merger, Consolidation.............................................86
ss.8.5 Intentionally Deleted.............................................87
ss.8.6 Compliance with Environmental Laws................................87
ss.8.7 Distributions.....................................................88
ss.8.8 Asset Sales.......................................................89
ss.8.9 Development Activity..............................................89
ss.8.10 Restriction on Prepayment of Indebtedness.........................89
ss.8.11 Zoning and Contract Changes and Compliance........................90
ss.8.12 Derivative Obligations............................................90
ss.8.13 Subsidiaries Guarantees and Pledges...............................90
ss.8.14 Organizational Document Amendments................................90
ss.9 FINANCIAL COVENANTS...............................................90
ss.9.1 Borrowing Base....................................................91
ss.9.2 Debt Service Coverage Ratio.......................................91
ss.9.3 Total Debt to Total Asset Value...................................91
ss.9.4 Maximum Permitted Investments.....................................91
ss.9.5 Tangible Net Worth................................................91
ss.9.6 Interest Rate Protection..........................................91
ss.9.7 Maximum Distributions.............................................91
ss.9.8 Maximum secured Recourse Debt to Total Asset Value................91
ss.9.9 Minimum Fixed Charge Coverage Ratio...............................92
ss.10. CLOSING CONDITIONS................................................92
ss.10.1 Loan Documents....................................................92
ss.10.2 Certified Copies of Organizational Documents......................92
ss.10.3 Resolutions.......................................................92
ss.10.4 Incumbency Certificate; Authorized Signers........................92
ss.10.5 Opinion of Counsel................................................92
ss.10.6 Payment of Fees...................................................92
ss.10.7 Insurance.........................................................92
ss.10.8 Performance; No Default...........................................93
ss.10.9 Representations and Warranties....................................93
ss.10.10 Proceedings and Documents.........................................93
ss.10.11 Eligible Real Estate Qualification Documents......................93
ss.10.12 Compliance Certificate............................................93
ss.10.13 Intentionally Deleted.............................................93
ss.10.14 Endorsements to Title Policy......................................93
ss.10.15 Stockholder and Partner Consents..................................93
ss.10.16 Intentionally Deleted.............................................93
ss.10.17 Estoppels.........................................................93
ss.10.18 Subordination, Non-Disturbance and Attornment Agreements..........94
ss.10.19 Certificates of Occupancy.........................................94
ss.10.20 Environmental Reports.............................................94
ss.10.21 Zoning............................................................94
ss.10.22 Guaranty..........................................................94
ss.10.23 Other.............................................................94
ss.11. CONDITIONS TO ALL BORROWINGS......................................94
ss.11.1 Prior Conditions Satisfied........................................94
ss.11.2 Representations True; No Default..................................94
ss.11.3 No Legal Impediment...............................................95
ss.11.4 Governmental Regulation...........................................95
ss.11.5 Proceedings and Documents.........................................95
ss.11.6 Borrowing Documents...............................................95
ss.11.7 Endorsement to Title Policy.......................................95
ss.11.8 Future Advances Tax Payment.......................................95
ss.11.9 iStar and Initial Facility........................................96
ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC..............................96
ss.12.1 Events of Default and Acceleration................................96
ss.12.2 Limitation of Cure Periods........................................99
ss.12.3 Termination of Commitments.......................................100
ss.12.4 Remedies.........................................................100
ss.12.5 Distribution of Collateral Proceeds..............................101
ss.13. SETOFF...........................................................102
ss.13.1 Setoff...........................................................102
ss.13.2 Additional Rights................................................102
ss.14. THE AGENT........................................................102
ss.14.1 Authorization....................................................102
ss.14.2 Employees and Agents.............................................103
ss.14.3 No Liability.....................................................103
ss.14.4 No Representations...............................................103
ss.14.5 Payments.........................................................103
ss.14.6 Holders of Notes.................................................104
ss.14.7 Indemnity........................................................104
ss.14.8 Agent as Lender..................................................105
ss.14.9 Resignation; Removal.............................................105
ss.14.10 Duties in the Case of Enforcement................................105
ss.14.11 Request for Agent Action.........................................106
ss.14.12 Intentionally Deleted............................................106
ss.14.13 Replacement of Holdout Lender....................................106
ss.15. EXPENSES.........................................................107
ss.16. INDEMNIFICATION..................................................108
ss.16.1 Lender Indemnification...........................................108
ss.16.2 Borrower Must Notify.............................................108
ss.16.3 Remedies.........................................................109
ss.16.4 Limitations......................................................109
ss.16.5 Obligations Absolute.............................................109
ss.17. SURVIVAL OF COVENANTS, ETC.......................................109
ss.18. ASSIGNMENT AND PARTICIPATION.....................................110
ss.18.1 Conditions to Assignment by Lenders..............................110
ss.18.2 Register.........................................................110
ss.18.3 New Notes........................................................111
ss.18.4 Participations...................................................111
ss.18.5 Pledge by Lender.................................................111
ss.18.6 No Assignment by Borrower........................................112
ss.18.7 Disclosure.......................................................112
ss.18.8 Amendments to Loan Documents.....................................112
ss.19. NOTICES..........................................................112
ss.20. RELATIONSHIP.....................................................114
ss.21 USURY............................................................114
ss.22. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE...............114
ss.23 POWER OF ATTORNEY................................................115
ss.24. HEADINGS.........................................................115
ss.25. COUNTERPARTS.....................................................115
ss.26. ENTIRE AGREEMENT, ETC............................................115
ss.27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS...................115
ss.28. DEALINGS WITH THE BORROWER.......................................116
ss.29. CONSENTS, AMENDMENTS, WAIVERS, ETC...............................116
ss.30. SEVERABILITY.....................................................117
ss.31. TIME OF THE ESSENCE..............................................117
ss.32. NO UNWRITTEN AGREEMENTS..........................................117
ss.33. REPLACEMENT NOTES................................................117
ss.34. NO THIRD PARTIES BENEFITED.......................................118
ss.35 HONORARY TITLES..................................................118
ss.35 HIALEAH ELIGIBLE PROPERTY........................................118
AMENDED AND RESTATED
MASTER CREDIT AGREEMENT
THIS AMENDED AND RESTATED MASTER CREDIT AGREEMENT (this "AGREEMENT") is
made as of the 29th day of March, 2004, by and among 30 WEST PERSHING, LLC, a
limited liability company duly organized and validly existing under the laws of
the State of Missouri ("PERSHING"), EPR HIALEAH, INC., a corporation duly
organized and validly existing under the laws of the State of Missouri
("HIALEAH") and WESTCOL CENTER, LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware ("WESTCOL")
(individually and collectively, jointly and severally, Pershing, Hialeah and
Westcol are referred to as the "BORROWERS", and ENTERTAINMENT PROPERTIES TRUST,
a real estate investment trust duly organized and validly existing under the
laws of the State of Maryland ("EPR" and/or "GUARANTOR") having its principal
place of business at c/o Entertainment Properties Trust, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, FLEET NATIONAL BANK ("FLEET"), the other lending
institutions which are or may become parties to this Agreement as "LENDERS"
(each, individually, a "Lender"), pursuant to ss.18 (together with Fleet, the
"LENDERS"), and FLEET NATIONAL BANK, as Agent for the Lenders (the "AGENT").
R E C I T A L S
WHEREAS, pursuant to the terms and conditions of that certain Master Credit
Agreement dated as of May 3, 2002 by and between Pershing and Fleet, as Agent
(the "INITIAL CREDIT AGREEMENT"), Fleet extended to Pershing a revolving credit
facility in the maximum principal amount of Fifty Million and 00/100 Dollars
($50,000,000.00) (the "INITIAL FACILITY").
WHEREAS, the Borrower and the Lenders have agreed to (i) enter into this
Agreement to amend and restate the Initial Credit Agreement in its entirety,
(ii) to increase the principal amount of the Initial Facility from Fifty-Million
and 00/100 Dollars ($50,000,00.00) to One Hundred Fifty Million and 00/100
Dollars ($150,000,000.00) and (iii) amend certain other terms thereof;
WHEREAS, This Agreement is made by and between the Borrower and the Lenders
in substitution and replacement for the Initial Credit Agreement, to amend and
restate and replace the terms of the Initial Credit Agreement in its entirety.
WHEREAS, Borrower has requested and Lenders have agreed to, among other
things, to extend a revolving credit facility up to a maximum amount of
$150,000,000.00; and
WHEREAS, EPR is the 100% owner of Pershing and Hialeah, and the 100% owner
of Megaplex Four, Inc. ("MEGAPLEX FOUR"), which is the 100% owner of Westcol.
EPR provides valuable financial, management and administrative services to the
Borrower. Each of the Obligors expects to derive benefit, directly or indirectly
from the credit so extended hereunder to Borrower because the successful
operation of each of the Obligors is dependent on the continued successful
performance of the functions of the integrated group as a whole.
NOW, THEREFORE, in consideration of the recitals herein and 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 hereby amend and restate the Initial
Credit Agreement and 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:
ADDITIONAL GUARANTOR. Each additional Subsidiary of Guarantor which
becomes a Guarantor hereunder.
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. Fleet National Bank, acting as administrative agent for the
Lenders, and its successors and assigns.
AGENT'S HEAD OFFICE. The Agent's head office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent
may designate from time to time by notice to the Borrower and the Lenders.
AGGREGATE UNDERWRITEABLE CASH FLOW. The sum of the Underwriteable Cash
Flow for all Mortgaged Properties; provided however, that any aggregate
Exhibitor EBITDAR determined in accordance with assumption (d) under the
definition of Exhibitor EBITDAR shall not be included herein to the extent
that such aggregate amount exceeds fifteen percent (15%) of Aggregate
Underwriteable Cash Flow otherwise determined under this Agreement.
AGENT'S SPECIAL COUNSEL. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or such other counsel as
selected by Agent.
AGREEMENT. This Amended and Restated Master Credit 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 from time to
time in accordance with the Guarantor's Leverage Ratio, as set forth below
(for purposes of this Agreement, "BPS" shall mean and refer to basis
points):
LEVERAGE RATIO LIBOR MARGIN BASE RATE MARGIN
< 40% 175 bps 25 bps
> 40%, < 50% 200 bps 50 bps
> 50%, < 55% 225 bps 75 bps
> 55%, < 60% 250 bps 100 bps
The Applicable LIBOR Margin and Applicable Base Rate Margin shall be
adjusted effective on the first Business Day following the effective date
of a change in the Leverage Ratio determined pursuant to a Compliance
Certificate delivered pursuant to ss.7.4(c). Notwithstanding the foregoing,
in the event that the Borrower does not deliver a Compliance Certificate
pursuant to ss.7.4(c), the Applicable LIBOR Margin shall be 250 bps, and
the Applicable Base Rate Margin shall be 100 bps, until such time as
Borrower has delivered the Compliance Certificate, and thereafter the
Applicable LIBOR Margin and Applicable Base Rate Margin shall be adjusted
effective on the first Business Day following such delivery.
ASSIGNMENT AND ACCEPTANCE AGREEMENT. Seess.18.1.
ASSIGNMENT OF INTERESTS. The Assignment of Interests by (i) EPR to the
Agent for the benefit of the Lenders relating to the membership interests
of Pershing and the stock in Hialeah pursuant to which EPR's ownership
interests in each of Pershing and Hialeah are pledged to the Agent for the
benefit of the Lenders, and (ii) Megaplex Four to the Agent for the benefit
of the Lenders relating to the membership interests of Westcol pursuant to
which Megaplex Four's ownership interests in Westcol, and each other
Assignment of Interests which may hereafter be executed pursuant to ss.5.3,
as the same may be modified or amended, and any further assignments,
certificates, powers, consents, acknowledgements, estoppels or financing
statements that may be delivered in connection therewith, and individually
any one of them.
ASSIGNMENT OF LEASES AND RENTS. Each of the assignments of leases and
rents from the Borrower or a Guarantor to the Agent, as it may be modified
or amended, pursuant to which there shall be assigned to the Agent for the
benefit of the Lenders a security interest in the interest of the Borrower
or such Guarantor as lessor with respect to all Leases of all or any part
of each Mortgaged Property, each such assignment to be in form satisfactory
to the Lenders, taking into consideration such changes thereto as Agent may
require as a result of state law or practice.
ASSUMED DEBT SERVICE. Interest expense incurred plus regularly
scheduled amortization payments calculated based upon the amount
outstanding under the Facility
(including Letter of Credit exposure) with debt service calculated based
upon 20-year mortgage-style amortization and interest calculated at the
greater of: (a) the actual interest rate then in effect; (b) the 10-year
Treasury then in effect plus 200 bps; and (c) 8.5%.
ASSUMED DEBT SERVICE CONSTANT. The ratio, expressed as a percentage,
of Assumed Debt Service divided by that amount Outstanding under the
Facility, including any Letter of Credit exposure.
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 Head Office as its
"prime rate", 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.
BORROWING BASE. The amount which is the lesser of (a) the Maximum
Commitment Amount, or (b) sixty percent (60%) of the sum of the Mortgaged
Property Asset Value of the Mortgaged Properties or (c) the amount
determined by dividing Underwriteable Cash Flow by 1.75 and further
dividing such amount by the Assumed Debt Service Constant. Notwithstanding
the foregoing, the Borrowing Base attributable to a Mortgaged Property
shall not exceed the amount to which recovery under the applicable Mortgage
is limited.
BUILDING. With respect to each Mortgaged Property or 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 or Boston, Massachusetts. 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 or issuance of a
Letter of Credit, 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. All of the property, rights and interests of the Borrower
and each Guarantor which are or are intended to be subject to the security
interests, security title, liens and mortgages created by the Security
Documents, including, without limitation, the Mortgaged Properties, and the
Guaranty.
COLLATERAL RELEASE. Any release of Collateral hereunder pursuant
toss.5.4.
COLLATERAL REPLACEMENT. Any substitution, replacement or addition of
Collateral hereunder, pursuant toss.5.3 andss.12.
COMMISSION. The Securities and Exchange Commission.
COMMITMENT. With respect to each Lender, the Revolving Credit
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. Real Estate:
(a) which is owned in fee (or a ground lease acceptable to the
Agent in its reasonable discretion) by the Borrower or an Additional
Guarantor;
(b) which is located within the contiguous ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, excluding those States which prescribe a
"single-action" or similar rule limiting the rights of creditors
secured by real property, which exclusion shall apply, without
limitation, to the States of California and Washington except to the
extent such exclusion is waived in writing by the Required Lenders
with respect to a specific parcel of Real Estate;
(c) which is improved by an income-producing Megaplex Movie
Theatre or other Entertainment-Related Retail Improvements, consistent
with Borrower's business strategy on the date of this Agreement and
similar in quality and character to the Initial Eligible Real Estate;
(d) which is subject to a lease to a third party (or parties),
which lease has been approved by the Agent (OTHER THAN leases for
retail properties included as a part and incidental to the operation
of a Mortgaged Property which is a Megaplex Movie Theater and which
lease is for less than 10,000 square feet (the "MEGAPLEX THRESHOLD"),
AND OTHER THAN leases for retail properties included as part of a
Mortgaged Property which is Entertainment-Related Retail Improvements
and which leases are less than 5,000 square feet (the "ENTERTAINMENT
RETAIL THRESHOLD"), for which no approval shall be required; provided
however, that copies of all leases for any Mortgaged Property shall be
provided to Agent;
(e) as to which all of the representations set forth in ss.6 of
this Agreement concerning Mortgaged Property are true and correct;
(f) as to which the Agent and the Required Lenders, as
applicable, have received and approved all Eligible Real Estate
Qualification Documents, or will receive and approve them prior to
inclusion of such Real Estate as a Mortgaged Property;
(g) which does not cause a violation of the Borrowing Base;
(h) the inclusion of which will not cause a default by Guarantor
of any of its covenants hereunder; and
(i) which is approved by the Agent and Required Lenders in their
sole discretion.
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.
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. Shall be determined as follows:
(a) The actual EBITDA of the exhibitor/tenant at a Mortgaged
Property, which EBITDA is derived specifically from said Mortgaged
Property, plus the rent expense of that exhibitor/tenant at said
Mortgaged Property (the "ACTUAL EXHIBITOR EBITDAR"). The Lenders
recognize that the Borrower and EPR are not entitled to receive full
financial disclosure of the income statement of an exhibitor/tenant,
which would allow the calculation of Actual Exhibitor EBITDAR, but do
receive such information as a courtesy.
(b) In the event that such Actual Exhibitor EBITDAR is not
available, then the calculation of Exhibitor EBITDAR shall be based
upon the actual trailing 4 quarters revenue
of the exhibitor/tenant at said Mortgaged Property multiplied by an
assumed Exhibitor EBITDAR margin of thirty-six percent (36%) (the
"ASSUMED EXHIBITOR EBITDAR").
(c) In the event that such Assumed Exhibitor EBITDAR is not
available, then the calculation of Exhibitor EBITDAR shall be based
upon the trailing 4 quarters box office receipts of the
exhibitor/tenant at said Mortgaged Property as determined by ▇▇▇
▇▇▇▇▇▇▇, divided by .70, to arrive at total revenues, and multiplied
by an assumed Exhibitor EBITDAR margin of thirty-six percent (36%)
(the "▇▇▇▇▇▇▇ EXHIBITOR EBITDAR").
(d) Notwithstanding anything to the contrary contained herein,
but subject to the defined term Underwriteable Cash Flow, for any
exhibitor/tenant theatre which has been in operation for less than
four (4) quarters, Exhibitor EBITDAR shall be deemed to equal the
Mortgaged Property Net Operating Income for such Mortgaged Property.
Further, notwithstanding anything to the contrary contained herein,
where there is an assumed Exhibitor EBITDAR margin of thirty-six percent
(36%), such margin shall be assumed, provided however, in the event that
Agent determines in good faith that a thirty-six percent (36%) Exhibitor
EBITDAR margin is no longer accurate, it may, from time to time, adjust the
assumed Exhibitor EBITDAR margin for purposes of this calculation.
FACILITY. The Revolving Line of Credit Facility in the maximum amount of
$150,000,000.00, which amount may be increased pursuant to ss.2.1 herein.
FACILITY AMOUNT. The aggregate amount of the initial $150,000,000.00
Facility, plus any increase thereto pursuant to ss.2.1 herein.
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 Guarantor 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. As defined in the preamble, together with its successors or
assigns.
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 OR GUARANTORS. Collectively, the initial Guarantor hereunder
and each Additional Guarantor, and individually any one of them.
GUARANTY. Individually and collectively, the Unconditional Guaranty of
Payment and Performance dated of even date herewith made by the Guarantor
and each Unconditional Guaranty of Payment and Performance which is
hereafter executed by an Additional Guarantor, in favor of the Agent and
the Lenders, as the same may be modified or amended, each such Guaranty to
be 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.
INDEMNITY AGREEMENTS. Each of the hazardous materials indemnification
agreements from the Borrower or a Guarantor to the Agent for the benefit of
the Lenders, as it may be modified or amended, with respect to each of the
Mortgaged Properties, and in form satisfactory to the Lenders.
INDEPENDENT DIRECTOR. An individual reasonably satisfactory to Agent,
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, EPR, or any of its Subsidiaries or Affiliates, (ii)
a customer of, a supplier to Borrower, EPR or any of its 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, EPR or any of its
Subsidiaries or Affiliates.
INDIVIDUAL MORTGAGED PROPERTY ASSET VALUE. The Mortgaged Property
Asset Value determined for an individual Mortgaged Property PROVIDED,
HOWEVER, that in the event there exists an option or transfer restriction
with respect to any Mortgaged Property such that the transfer value of said
Mortgaged Property is limited or restricted, then such Individual Mortgaged
Property Asset Value shall be limited to the value set forth in such option
or transfer agreement.
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 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.
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, two, three or six months 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.
ISSUING LENDER. Fleet, in its capacity as the Lender issuing the
Letters of Credit or any other Lender that is designated and agrees to
issue any Letters of Credit.
LAND ASSETS. Land with respect to which the commencement of grading,
construction of improvements or infrastructure has not yet commenced, and
all unimproved land according to GAAP. Land Assets shall not include
"outparcels" held in the ordinary course of business for sale or lease.
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 including without limitation any ground leases therefor
(collectively, the "LEASES").
LENDERS. Fleet, the other lending institutions which are or may be a
party 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 as identified on SCHEDULE 1 hereto).
LETTER OF CREDIT. Any standby letter of credit issued at the request
of the Borrower and for the account of the Borrower, the Guarantor or any
of its Subsidiaries in accordance with ss.2.10.
LETTER OF CREDIT REQUEST. Seess.2.10(a).
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 Revolving Credit LIBOR Rate Loans
bearing interest by reference to LIBOR.
LIEN. See ss.8.2.
LOAN DOCUMENTS. This Agreement, the Notes, the Letters of Credit, the
Security Documents and all other documents, instruments or agreements now
or hereafter executed or delivered by or on behalf of the Borrower or any
Guarantor in connection with the Loans.
LOAN REQUEST. Seess.2.7.
LOANS. Collectively, the Revolving Credit Loans.
MANAGEMENT AGREEMENTS. Agreements, whether written or oral, providing
for the management of the Mortgaged Properties 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 its Subsidiaries considered as
a whole; (b) the ability of Borrower or any of the Guarantors owning a
Mortgaged Property to perform any of its obligations under the Loan
Documents; or (c) the validity or enforceability of any of the Loan
Documents or the rights or remedies of Agent or the Lenders thereunder.
MATURITY DATE. March 29, 2007, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof, or March 29,
2008, if said Maturity Date is extended pursuant to ss.3.5, herein.
MAXIMUM COMMITMENT AMOUNT. The maximum availability under the
Facility, including the sum of the aggregate amount undrawn on all Letters
of Credit or drawn but not reimbursed under all Letters of Credit at any
time, shall be $150,000,000.00 (unless otherwise increased pursuant to
ss.2.1 herein).
MEGAPLEX MOVIE THEATRE. A theater constructed or substantially
remodeled subsequent to 1995 for the showing of first run motion pictures
which theater contains at least fourteen screens, stadium style seating,
digital sound and enhanced seat design. Notwithstanding the foregoing the
following Mortgaged Properties, as part of the Initial Eligible Real
Estate, (which have less than fourteen (14) screens) shall be deemed to be
Megaplex Movie Theatres: Southwind, ▇▇▇▇▇▇▇▇, ▇▇ (▇▇▇▇▇▇▇ Theaters).
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. The Eligible Real Estate
owned by the Borrower or any Additional Guarantor which is security for the
Obligations pursuant to the Mortgages. The Mortgaged Property shall
initially consist of 140,000 square feet of restaurant and retail space in
Westminster, Colorado owned by WestCol Center, LLC and the below listed
Megaplex Movie Theatres which shall contain the following properties
(collectively, as listed below, the "INITIAL ELIGIBLE REAL ESTATE"):
------------------- ---------------- -------------- --------- -----------
NAME LOCATION EXHIBITOR SCREENS OWNER
------------------- ---------------- -------------- --------- -----------
Suffolk Grande Suffolk, VA Consolidated 16 Pershing
Theaters
------------------- ---------------- -------------- --------- -----------
AmStar Theatres Macon, GA Amstar 16 Pershing
Theatres
------------------- ---------------- -------------- --------- -----------
Columbiana Grandee Columbia, SC Consolidated 14 Pershing
Theaters
------------------- ---------------- -------------- --------- -----------
Southwind Lawrence, KS ▇▇▇▇▇▇▇ 12 Pershing
Theaters
------------------- ---------------- -------------- --------- -----------
Southfield Detroit, MI Loews 20 Pershing
Theatres
------------------- ---------------- -------------- --------- -----------
Colonel ▇▇▇▇ ▇▇▇▇▇▇ Rock, AR Rave Motion 18 Pershing
Pictures
------------------- ---------------- -------------- --------- -----------
Notwithstanding anything to the contrary contained herein, the parties
acknowledge that the following properties have been approved as to quality
of assets, only, and that prior to final approval as Mortgaged Properties,
must satisfy all of the conditions of the Eligible Real Estate:
-------------- --------------- ----------------- ----------- ------------
NAME LOCATION EXHIBITOR SCREENS OWNER
-------------- --------------- ----------------- ----------- ------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, NJ AMC 24 Pershing
-------------- --------------- ----------------- ----------- ------------
Mesa Grande Mesa, AZ AMC 24 Pershing
-------------- --------------- ----------------- ----------- ------------
Crown Hialeah Hialeah, FL Crown Theatres 18 Hialeah
-------------- --------------- ----------------- ----------- ------------
Deer Valley Phoenix, AZ AMC 30 Pershing
-------------- --------------- ----------------- ----------- ------------
Subsequent to closing hereunder, the Borrower may substitute other
Eligible Real Estate for all or a portion of the Initial Eligible Real
Estate subject to the compliance with the
terms of this Agreement. The Real Estate referenced above and located in
Hamilton, NJ, Mesa, AZ and Phoenix, AZ is collectively referred to as the
"AMC PROPERTIES."
MORTGAGED PROPERTY ASSET VALUE. With respect to any Eligible Real
Estate included in the Mortgaged Property owned by the Borrower or any
Additional Guarantor, shall be determined based upon an appraisal prepared
for, and in all respects acceptable to, the Agent, PROVIDED, HOWEVER, that
with respect to each individual Mortgaged Property, in the event there
exists an option or transfer restriction with respect to any such Mortgaged
Property such that the transfer value is limited or restricted, then such
Mortgaged Property Asset Value of said property shall be limited to the
value set forth in such option or transfer agreement.
MORTGAGED PROPERTY NET OPERATING INCOME (OR MORTGAGED PROPERTY NOI).
With respect to any Mortgaged Property, for any period, the aggregate of
actual recurring "property revenues" earned and received by Borrower or any
Additional Guarantor in such period (provided however that any amounts
accrued shall only include those amounts not more than 45 days delinquent
in arrears) for the Mortgaged Property (including base rent and expense
reimbursement, but excluding straight line and percentage rent), and all as
otherwise determined in accordance with GAAP together with recoveries from
tenants as determined in accordance with GAAP, all such amounts shall be
attributable to such period and accrued according to GAAP, less (i) all
"property expenses" consisting solely of expenses incurred or accrued by
the Borrower or an Additional Guarantor that are directly related to the
operation and ownership of such Mortgaged Property, including any real
estate taxes, sales taxes, common area maintenance charges, accounting and
administration, security, utilities, maintenance, janitorial, premiums for
casualty and liability insurance or ground lease payments (excluding from
the foregoing expenses for depreciation, amortization, interest and leasing
commissions with respect to such Mortgaged Property) actually paid by
Borrower or an Additional Guarantor not paid by Tenant, and (ii) an
allowance for property management expenses calculated at the greater of (A)
three percent (3.0%) of Base Rent or (B) actual property management
expenses (the "MANAGEMENT EXPENSE"), and (iii) the Replacement Reserve. If
such period is less than a year, expenses described in clause (i) above
that are payable less frequently than monthly during the course of a year
(E.G., real estate taxes and insurance premiums) shall be adjusted by
"straight lining" the amounts so that such expenses are accrued on a
monthly basis over the course of a year and fairly stated for each period.
In the event that information for trailing four (4) quarters or for any
other period as may be required hereunder, is not available for a Mortgaged
Property, then, if such Mortgaged Property is a new theatre or a new Lease
executed by Tenant and Borrower or an Additional Guarantor in connection
with the acquisition of a Mortgaged Property, then for purposes of this
calculation, "property revenues" shall mean the actual annual base rent on
an effective triple net basis for the Mortgaged Property, as provided for
in the applicable Lease less the Management Expense and less the
Replacement Reserve. Additionally, as the Mortgaged Property financial
information becomes available (i.e. after the Mortgaged Property has been
in operation for one quarter, two quarters, etc.) such actual information
shall be used, as adjusted, by "annualizing" the amounts so that such
amounts are received on a monthly basis over the course of a year and
fairly stated for each period, and as further adjusted for "property
expenses," Management Expense and Replacement Reserves.
MORTGAGES. The Mortgages, Deeds to Secure Debt and/or Deeds of Trust
from the Borrower or any Additional 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
Borrower or Additional Guarantor has conveyed or granted a mortgage lien
upon or a conveyance in fee simple of a Mortgaged Property (or Development
Property) 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 Revolving Credit Notes.
NOTICE. See ss.19 herein.
OBLIGATIONS. All indebtedness, obligations and liabilities of the
Borrower or any 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, the Letters of Credit 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, Guarantor and any
Additional Guarantor, and any other party (other than Agent, a Lender or
the Issuing Lender) that may become obligated under this Agreement
("OBLIGORS"); individually, each of Borrower, Guarantor and any Additional
Guarantor which is or may become obligated under this Agreement
("OBLIGOR").
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination. With respect to Letters of Credit,
the aggregate undrawn face amount of issued Letters of Credit.
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, the Permitted Liens and the security interests and
defects in title as may be permitted
by Lender 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. Any property of the Borrower or any Additional
Guarantor which is not at the time included in the Collateral and which
consists of (i) Eligible Real Estate, or (ii) Real Estate which is capable
of becoming Eligible Real Estate through the approval of the Required
Lenders and the completion and delivery of Eligible Real Estate
Qualification Documents.
RATING AGENCIES. Fitch IBCA, Inc., Standard & Poor's Rating Services,
Inc.or ▇▇▇▇▇'▇ Investors Service, Inc.
REAL ESTATE. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower, any Guarantor or any of its Subsidiaries,
including, without limitation, the Mortgaged Properties.
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 owned or leased by Borrower or any Additional 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. With respect to any Real Estate now or hereafter
owned or leased by Borrower or any Additional Guarantor, a replacement
reserve in an amount equal to
twenty cents ($.20) per annum multiplied by the Net Rentable Area of such
Real Estate. With respect to any Real Estate now or hereafter owned by
Guarantor or its Subsidiaries, a replacement reserve in an amount equal to
twenty cents ($.20) per annum multiplied by the Net Rentable Area of such
Real Estate.
REQUIRED LENDERS. As of any date, the Lender or Lenders (which may
also include the Agent as a Lender) whose aggregate Commitment Percentage
is equal to or greater than sixty-six and 2/3 percent (66-2/3%)of the Total
Commitment.
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.
REVOLVING CREDIT BASE RATE LOANS. Revolving Credit Loans bearing
interest calculated by reference to the Base Rate.
REVOLVING CREDIT COMMITMENT. With respect to each Lender, the amount
set forth on SCHEDULE 1 hereto as the aggregate amount of such Lender's
Revolving Credit Commitment, as the same may be reduced or increased from
time to time in accordance with the terms of this Agreement.
REVOLVING CREDIT COMMITMENT PERCENTAGE. With respect to each Lender,
the percentage set forth on SCHEDULE 1 hereto as such Lender's percentage
of the aggregate Revolving Credit Commitments of all of the Lenders, which
such percentage may be reduced as provided herein or increased pursuant to
ss.2.1 herein.
REVOLVING CREDIT LIBOR RATE LOANS. Revolving Credit Loans bearing
interest calculated by reference to LIBOR.
REVOLVING CREDIT LOAN OR LOANS. An individual Revolving Credit Loan or
the aggregate Revolving Credit Loans, as the case may be, in the maximum
principal amount of $150,000,000.00 to be made by the Lenders hereunder as
more particularly described in ss.2. Amounts drawn under a Letter of Credit
shall also be considered Revolving Credit Loans as provided in ss.2.10(f).
REVOLVING CREDIT NOTES. Seess.2.2(b) herein.
SECURITY DOCUMENTS. Collectively, the Guaranty, the Mortgages, the
Assignments of Leases and Rents, the Indemnity Agreements, the Assignment
of Interests, UCC-1 financing statements and any further collateral
assignments to the Agent for the benefit of the Lenders.
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
Borrower 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 Borrower or any Additional Guarantor which
leases space in a Mortgaged Property pursuant to a Lease.
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 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 Borrower or a Guarantor, as applicable, 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 not to exceed the lesser of (a) the Borrowing Base
or (b) $150,000,000.00, as such amount may be increased pursuant to ss.2.1
herein.
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, Guarantor and its
Subsidiaries.
TYPE. As to any Revolving Credit Loan, its nature as a Base Rate Loan
or a LIBOR Rate Loan.
UNDERWRITEABLE CASH FLOW. (1) With respect to Mortgaged Property that
is a Megaplex Movie Theater, determined individually, the lesser of (A) the
Mortgaged Property NOI for the trailing 4 quarter period and (B) the
Exhibitor's EBITDAR for such Mortgaged Property for the trailing 4 quarter
period, divided by 1.25; and (2) With respect to each Mortgaged Property
that is an Entertainment-Related Retail Improvements, the Mortgaged
Property NOI for the trailing 4 quarter period.
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 REVOLVING CREDIT FACILITY.
ss.2.1 THE INCREASED LOAN AMOUNT. During the term of the Facility, the
Borrower shall have one option to increase the Facility Amount by a maximum
aggregate amount of up to $50,000,000.00 (the "INCREASE OPTION"), PROVIDED
HOWEVER, (a) that at the time of the exercise of such option, there is no
Default or Event of Default which shall have occurred and be continuing;
(b) in no event shall the existence of this Increase Option be deemed a
commitment on the part of the Lenders until such time as a Lender in
writing increases its commitment or a new Lender issues a written
commitment for any such amounts in excess of the existing $150,000,000
committed Facility, and then in such event, such increase to the Facility
Amount shall only be to the extent of the increased commitment or new
commitment amounts; (c) Borrower shall provide ten (10) business days prior
written notice to the Agent of the amount of the requested increase; (d)
any such increase shall be in a minimum amount of $10,000,000.00 with
minimum increments of $5,000,000.00 above that amount, and a maximum
aggregate increase of $50,000,000.00; and (e) any such increase shall be
integrated into this Agreement and shall be subject to the same terms and
conditions as this Agreement.
ss.2.2 REVOLVING CREDIT 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 (and repay and reborrow) from
time to time between the Closing Date and the Maturity Date upon
notice by the Borrower to the Agent given in accordance with ss.2.7,
such sums as are requested by the Borrower for the purposes set forth
in ss.2.9 up to a maximum aggregate principal amount outstanding
(after giving effect to all amounts requested) plus the Letters of
Credit Outstanding at any one time equal to such Lender's Revolving
Credit Commitment; PROVIDED, that, in all events no Default or Event
of Default shall have occurred and be continuing; and PROVIDED,
FURTHER, that the outstanding principal amount of the Revolving Credit
Loans (after giving effect to all amounts requested) plus the Letters
of Credit Outstanding shall not at any time exceed the total Maximum
Commitment Amount or cause a violation of the covenant set forth in
ss.9.1. The Revolving Credit Loans shall be made PRO RATA in
accordance with each Lender's Revolving Credit Commitment Percentage.
Each request for a Revolving Credit 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 Revolving Credit
Loans to Borrower in the maximum aggregate principal outstanding
balance of more than the principal face amount of its Revolving Credit
Note.
(b) The Revolving Credit Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of EXHIBIT
B hereto (collectively, the "REVOLVING CREDIT NOTES"), dated of even
date with this Agreement (except as otherwise provided in ss.18.3) and
completed with appropriate insertions. One Revolving Credit Note shall
be payable to the order of each Lender in the principal amount equal
to such Lender's Revolving Credit Commitment or, if less, the
outstanding amount of all Revolving Credit Loans 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 Revolving Credit Loan or the time
of receipt of any payment of principal thereof, an appropriate
notation on Agent's Record reflecting the making of such Revolving
Credit Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Revolving
Credit 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 Revolving Credit Note to make
payments of principal of or interest on any Revolving Credit Note when
due. By delivery of the Revolving Credit Notes, there shall not be
deemed to have occurred, and there has not otherwise occurred, any
payment, satisfaction or novation of the indebtedness evidenced by the
"NOTES" as defined in the Revolving Credit Agreement, which
indebtedness is instead allocated among the Lenders as of the date
hereof and evidenced by the Revolving Credit Notes in accordance with
their respective Revolving Credit Commitment Percentages.
ss.2.3 FACILITY UNUSED FEE.
(a) The Borrower agrees to pay to the Agent for the account of
the Lenders in accordance with their respective Revolving Credit
Commitment Percentages a facility unused fee calculated at the rate
per annum set forth below, based upon the average daily amount by
which the total Revolving Credit Commitment exceeds the outstanding
principal amount of Revolving Credit Loans and the Letters of Credit
Outstanding during each calendar quarter or portion thereof calculated
on the basis of the actual number of days elapsed in a year of 360
days, commencing on the date hereof and ending on the Maturity Date:
USED PORTION FACILITY UNUSED FEE
< 50% of the Facility Amount 50.0 bps
> 50% of the Facility Amount 25.0 bps
(b) The facility unused fee shall be payable quarterly in arrears
on the first day of each calendar quarter for the immediately
preceding calendar quarter or portion thereof, on any earlier date on
which the applicable Revolving Credit Commitments shall be reduced and
on the Maturity Date.
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 REVOLVING CREDIT LOANS. Except with respect to the
initial Revolving Credit Loan on the Closing Date, 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 Revolving Credit Loan requested hereunder (a
"LOAN REQUEST") by 9:00 a.m. (Boston time) one Business Day prior to the
proposed Drawdown Date with respect to Revolving Credit Base Rate Loans and
three (3) Business Days prior to the proposed Drawdown Date with respect to
Revolving Credit LIBOR Rate Loans. Each such notice shall specify with
respect to the requested Revolving Credit Loan the proposed principal
amount of such Revolving Credit Loan, the Type of Revolving Credit Loan,
the initial Interest Period (if applicable) for such Revolving Credit Loan
and the Drawdown Date. Each 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), (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, and (iii) a current calculation of the
Borrowing Base with such supporting information as the Agent may require
adjusted in the best good faith estimate of the Borrower to give effect to
the proposed Advance. 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 Revolving Credit
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 Revolving Credit
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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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, or any subsequent Advance, until such time as Agent has
received from each Lender, its proportionate share of the requested
Revolving Credit 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. Each Loan Request shall be (a) for a
Revolving Credit Base Rate Loan in a minimum aggregate amount of $1,000,000
or an integral multiple of $100,000 in excess thereof; or (b) for a
Revolving Credit LIBOR Rate Loan in a minimum aggregate amount of
$2,000,000 or an
integral multiple of $100,000 in excess thereof; PROVIDED, HOWEVER, that
there shall be no more than five (5) LIBOR Rate Loans (including Revolving
Credit LIBOR Rate Loans) outstanding at any one time.
ss.2.8 FUNDS FOR REVOLVING CREDIT LOANS.
(a) Not later than 1:00 p.m. (Boston time) on the proposed
Drawdown Date of any Revolving Credit Loans, each of the Lenders will
make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Lender's Revolving
Credit Commitment Percentage of the amount of the requested Revolving
Credit 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 Revolving
Credit Loans made available to the Agent by the Lenders by crediting
such amount to the account of the Borrower maintained at the Agent's
Head Office. 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 Revolving Credit Commitment Percentage of the requested
Revolving Credit 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 Revolving Credit Commitment Percentage of any
requested Revolving Credit Loans, including any additional Revolving
Credit 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
Revolving Credit Commitment Percentage for such Revolving Credit 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 Revolving Credit Lender will
not make available to Agent such Revolving Credit Lender's Revolving
Credit Commitment Percentage of a proposed Revolving Credit Loan, the
Agent may in its discretion assume that such Lender has made such
Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 finance the repayment and termination of debt
(including the $75,000,000 facility from iStar and any other obligations
outstanding from Borrower to iStar (the "ISTAR LOANS") which is a condition
precedent for additional Advances hereunder; (b) to provide financing for
the acquisition, renovation, improvement and development by the Borrower,
Guarantor and their Subsidiaries of Real Estate utilized or to be utilized
for Megaplex Movie Theatre properties or Entertainment-Related Retail
Improvements or other approved properties; (c) for capital improvement
projects for Real Estate; (d) for general corporate purposes of Borrower
and the Guarantors and any Subsidiaries; and (e) for such other purposes as
the Required Lenders in their sole discretion from time to time may agree
in writing.
ss.2.10 LETTERS OF CREDIT.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date
through the day that is thirty (30) days prior to the Maturity Date,
the Issuing Lender shall issue such Letters of Credit as the Borrower
may request upon the delivery of a written request in the form of
EXHIBIT I hereto (a "LETTER OF CREDIT REQUEST") to the Issuing Lender,
PROVIDED that (i) no Default or Event of Default shall have occurred
and be continuing, (ii) upon issuance of such Letter of Credit, the
Outstanding Letters of Credit (including the amount of drawings made
under Letters of Credit but not reimbursed) shall not exceed
Twenty-Five Million Dollars ($25,000,000.00), (iii) in no event shall
the sum of (A) the Revolving Credit Loans Outstanding and (B) the
amount of Letters of Credit Outstanding (after giving effect to all
Letters of Credit requested and drawings made under any Letters of
Credit but not reimbursed) exceed the total Maximum Commitment Amount,
(iv) the conditions and covenants set forth in ss.ss.6, 9, 10 and 11
shall have been satisfied, and (v) in no event shall any amount drawn
under a Letter of Credit be available for reinstatement or a
subsequent drawing under such Letter of Credit. Each Letter of Credit
Request shall be executed by an officer of Borrower. The Issuing
Lender shall be entitled to conclusively rely on such Person's
authority to request a Letter of Credit on behalf of Borrower. The
Issuing Lender shall have no duty to verify the authenticity of any
signature appearing on a Letter of Credit Request. The Borrower
assumes all risks with respect to the use of the Letters of Credit.
Unless the Issuing Lender and the Required Lenders otherwise consent,
the term of any Letter of Credit shall not exceed a period of time
commencing on the issuance of the Letter of Credit and ending on the
date which is fifteen (15) days prior to the Maturity Date (but in any
event the term shall not extend beyond the Maturity Date). The amount
available to be drawn under any Letter of Credit shall reduce on a
dollar-for-dollar basis the amount available to be drawn under the
Revolving Credit Commitment as a Revolving Credit Loan.
(b) Each Letter of Credit Request shall be submitted to the
Issuing Lender at least ten (10) Business Days (or such shorter period
as the Issuing Lender may approve) prior to the date upon which the
requested Letter of Credit is to be issued. Each such Letter of Credit
Request shall contain (i) a statement as to the purpose for which such
Letter of Credit shall be used (which purpose shall be in accordance
with the terms of this Agreement), and (ii) a certification by the
chief financial or chief accounting officer of Borrower that the
Borrower is and will be in compliance with all covenants under the
Loan Documents after giving effect to the issuance of such Letter of
Credit. The Borrower shall further deliver to the Issuing Lender such
additional applications and documents as the Issuing Lender may
require, in conformity with the
then standard practices of its letter of credit department, in
connection with the issuance of such Letter of Credit; provided that
in the event of any conflict, the terms of this Agreement shall
control.
(c) The Issuing Lender shall, if it approves of the content of
the Letter of Credit Request (which approval shall not be unreasonably
withheld), and subject to the conditions set forth in this Agreement,
issue the Letter of Credit on or before ten (10) Business Days
following receipt of the documents last due pursuant to ss.2.10(b).
Each Letter of Credit shall be in form and substance reasonably
satisfactory to the Issuing Lender in its reasonable discretion. Upon
issuance of a Letter of Credit, the Issuing Lender shall provide
notice of the issuance of such Letter of Credit to the Lenders and
shall provide a copy of such Letter of Credit to any Lender that
requests a copy.
(d) Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased a participation therein from Issuing Lender
in an amount equal to its respective Revolving Credit Commitment
Percentage of the amount of such Letter of Credit. No Lender's
obligation to participate in a Letter of Credit shall be affected by
any other Lender's failure to perform as required herein with respect
to such Letter of Credit or any other Letter of Credit.
(e) The Borrower shall pay to the Issuing Lender (i) upon
issuance of each Letter of Credit, for its own account, a Letter of
Credit issuance fee calculated at the rate of one-eighth of one
percent (0.125%) per annum of the amount available to be drawn under
such Letter of Credit (which fee shall not be less than $1,000.00 in
any event), and (ii) for the accounts of the Lenders in accordance
with their respective percentage shares of participation in such
Letter of Credit, a Letter of Credit fee calculated at the rate per
annum equal to the Applicable Margin then applicable to Revolving
Credit LIBOR Rate Loans on the amount available to be drawn under such
Letter of Credit, which such fees shall be payable in quarterly
installments in arrears with respect to each Letter of Credit on the
first day of each calendar quarter following the date of issuance and
continuing on each quarter or portion thereof thereafter, as
applicable, or on any earlier date on which the Revolving Credit
Commitments shall terminate and on the expiration or return of any
Letter of Credit. In addition, the Borrower shall pay to Issuing
Lender for its own account within five (5) days of demand of Issuing
Lender the standard issuance, documentation and service charges for
Letters of Credit issued from time to time by Issuing Lender.
(f) In the event that any amount is drawn under a Letter of
Credit by the beneficiary thereof, the Borrower shall reimburse the
Issuing Lender by having such amount drawn treated as an outstanding
Revolving Credit Base Rate Loan under this Agreement and the Agent
shall promptly notify each Lender by telex, telecopy, telegram,
telephone (confirmed in writing) or other similar means of
transmission, and each Lender shall promptly and unconditionally pay
to the Agent, for the Issuing Lender's own account, an amount equal to
such Lender's Revolving Credit Commitment Percentage of such Letter of
Credit (to the extent of the amount drawn). If and to the extent any
Lender shall not make such amount available on the Business Day on
which such draw is funded, such Lender agrees to pay such amount to
the Agent forthwith on demand, together with interest thereon, for
each day from the date on which such draw was funded until the date on
which such amount is paid to the Agent, at the Federal Funds Effective
Rate until three (3) days after the date on which the Agent gives
notice of such draw and at the Federal Funds Effective Rate plus 1%
for each day thereafter. Further, such
Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, amounts due with respect to its
participations in Letters of Credit and any other amounts due to it
hereunder to the Agent to fund the amount of any drawn Letter of
Credit which such Lender was required to fund pursuant to this
ss.2.10(f) until such amount has been funded (as a result of such
assignment or otherwise). In the event of any such failure or refusal,
the Lenders not so failing or refusing shall be entitled to a priority
secured position for such amounts as provided in ss.12.5. The failure
of any Lender to make funds available to the Agent in such amount
shall not relieve any other Lender of its obligation hereunder to make
funds available to the Agent pursuant to this ss.2.10(f).
(g) If after the issuance of a Letter of Credit pursuant to
ss.2.10(c) by the Issuing Lender, but prior to the funding of any
portion thereof by a Lender, one of the events described in
ss.12.1(h), (i) or (j) shall have occurred, each Lender will, on the
date such Revolving Credit Loan pursuant to ss.2.10(f) was to have
been made, purchase an undivided participation interest in the Letter
of Credit in an amount equal to its Revolving Credit Commitment
Percentage of the amount of such Letter of Credit. Each Lender will
immediately transfer to the Issuing Lender in immediately available
funds the amount of its participation and upon receipt thereof the
Issuing Lender will deliver to such Lender a Letter of Credit
participation certificate dated the date of receipt of such funds and
in such amount.
(h) Whenever at any time after the Issuing Lender has received
from any Lender any such Lender's payment of funds under a Letter of
Credit and thereafter the Issuing Lender receives any payment on
account thereof, then the Issuing Lender will distribute to such
Lender its participation interest in such amount (appropriately
adjusted in the case of interest payments to reflect the period of
time during which such Lender's participation interest was outstanding
and funded); PROVIDED, HOWEVER, that in the event that such payment
received by the Issuing Lender is required to be returned, such Lender
will return to the Issuing Lender any portion thereof previously
distributed by the Issuing Lender to it.
(i) The issuance of any supplement, modification, amendment,
renewal or extension to or of any Letter of Credit shall be treated in
all respects the same as the issuance of a new Letter of Credit.
(j) Borrower assumes all risks of the acts, omissions, or misuse
of any Letter of Credit by the beneficiary thereof. None of Agent,
Issuing Lender or any Lender will be responsible for (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the issuance of any
Letter of Credit, even if such document should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise; (iii) any loss or delay in the transmission or
otherwise of any document or draft required by or from a beneficiary
in order to make a disbursement under a Letter of Credit or the
proceeds thereof; (iv) for the misapplication by the beneficiary of
any Letter of Credit of the proceeds of any drawing under such Letter
of Credit; and (v) for any consequences arising from causes beyond the
control of Agent or any Lender. Provided there exists no negligence or
willful misconduct on the part of the Agent, Issuing Lender or any
Lender, then none of Agent, Issuing Lender or any Lender will be
responsible for (i) failure of any beneficiary of any Letter of Credit
to comply fully with the
conditions required in order to demand payment under a Letter of
Credit; (ii) errors in interpretation of technical terms; (iii) the
form, validity, sufficiency, accuracy, genuineness or legal effect of
any Letter of Credit; and (iv) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any instrument transferring
or assigning or purporting to transfer or assign any Letter of Credit
or the rights or benefits thereunder or proceeds thereof in whole or
in part, which may prove to be invalid or ineffective for any reason.
Notwithstanding the foregoing, in no event shall the Lender be
responsible for any acts of fraud or forgery by Borrower, Guarantor
any of its Subsidiaries or any third party in connection with the
issuance, transfer, presentment or payment under or in connection with
any Letter of Credit. None of the foregoing will affect, impair or
prevent the vesting of any of the rights or powers granted to Agent,
Issuing Lender or the Lenders hereunder. In furtherance and extension
and not in limitation or derogation of any of the foregoing, any act
taken or omitted to be taken by Agent, Issuing Lender or the other
Lenders in good faith will be binding on Borrower and will not put
Agent, Issuing Lender or the other Lenders under any resulting
liability to Borrower.
ss.2.11 APPOINTMENT OF BORROWER AGENT. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") is an
officer of each of the Borrowers, and therefore each of the Borrowers has
determined that it is advantageous and convenient for them to designate
▇▇▇▇▇▇ as the agent for Borrower to effect borrowings and other extensions
of credit under this Agreement and to designate a Borrower to which
proceeds of the borrowings shall be distributed ("BORROWER AGENT").
(1) Each of the Borrowers hereby irrevocably appoints ▇▇▇▇▇▇ as
its agent to effect borrowings, obtain other extensions of credit and
to execute instruments and documents and take other actions in the
name, or on behalf of, but not as a lender to, such Borrower, as
provided or contemplated in this Agreement. Each of the Borrowers
represents and covenants that all requests for Loans and Letters of
Credit under this Agreement shall be made by either the Borrower or
Borrower Agent as agent for the Borrowers, and that the authority of
the Borrower Agent so to request Loans and Letters of Credit on behalf
of, and to bind, the Borrowers, shall continue unless and until (i)
the Agent actually receives written notice of the termination and/or
replacement of such authority signed by the respective Managers,
Presidents or Treasurers of each of the Borrowers, (ii) this Agreement
has been terminated, or (iii) all Obligations of such Borrower have
been paid or otherwise satisfied. Notwithstanding any provision to the
contrary elsewhere in this Agreement or such other Loan Documents, the
Borrower Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary
relationship with any Borrower and no implied covenants, functions,
responsibilities duties, obligations or liabilities shall be read into
this Agreement or the other Loan Documents or otherwise exist against
the Borrower Agent. Furthermore, in performing his duties under this
appointment, the Borrower Agent shall be acting solely as a conduit
for money transfers between the Lenders and the Borrowers, and the
Borrower Agent shall not make, nor shall he be construed as making,
any loans or advances of money under this Agreement to any of the
Borrowers.
(2) Each of the Borrowers further agrees and acknowledges that
any Loans which may be made by the Lenders under the Facility provided
under
this Agreement may be made directly to the designated Borrower
notwithstanding any notice or knowledge by the Lenders that such Loan
is intended for the use of another Borrower, and the Lenders shall
have no responsibility with respect to whether or when the designated
Borrower distributes or delivers the proceeds of any Loans to any
other Borrower, and payment or delivery by the Agent of the proceeds
of such Loans to the designated Borrower shall be deemed to be a
payment or delivery to each of the Borrowers. Without limiting the
foregoing, each Borrower acknowledges that it shall be directly
indebted to the Lenders for each Loan distributed to it by the
Borrower Agent as if that Loan had been made directly by the Lenders
to the Borrower which received such proceeds, in addition to which the
other Borrowers shall be jointly and severally obligated to the
Lenders in that amount.
(3) The Agent shall have no responsibility to inquire as to the
distribution of Loans and Letters of Credit made by the Agent or
Issuing Lender through the Borrower Agent as described herein.
(4) The Borrower Agent and each of the Borrowers agrees, jointly
and severally, to indemnify, defend, and to hold the Agent and the
Lenders, and any of their Affiliates or any designee harmless from and
against any liability, claim, demand, expense, or loss made against
the Agent or any Lender, or any of their Affiliates and/or its
designees on account of, or arising out of, this Agreement and the
transactions contemplated hereby, the Agent's, Lenders' and any of
their Affiliate's and/or designee's reliance upon loan requests
submitted by the Borrower Agent and any other action taken by the
Agent, any Lender or any of their Affiliates and/or designees
hereunder or under any of the Loan Documents or any other agreement
with the Borrower Agent and/or the Borrowers and/or any other Person.
(5) The Revolving Credit Facility established in this Agreement
constitutes one combined aggregate Line of Credit for all of the
Borrowers.
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. If at any time the sum of the aggregate
outstanding principal amount of the Revolving Credit Loans and the Letters
of Credit Outstanding exceeds the aggregate Revolving Credit Commitments,
or the aggregate outstanding principal balance of the Revolving Credit
Loans and the Letters of Credit Outstanding exceeds the Borrowing Base,
then the Borrower shall immediately pay the amount of such excess to the
Agent for the respective accounts of the Lenders, as applicable, for
application to the Loans as provided in ss.3.4, together with any
additional amounts payable pursuant to ss.4.8. In the event there shall
have occurred a casualty with respect to any Mortgaged Property and the
Borrower is required to
repay the Loans pursuant to ss.7.7 or a Taking and the Borrower is required
to repay the Loans pursuant to a Mortgage or ss.7.7, the Borrower shall
prepay the Loans concurrently with the date of receipt by the Borrower or
the Agent of any Insurance Proceeds or Condemnation Proceeds in respect of
such casualty or Taking, as applicable, or as soon thereafter as is
reasonably practicable, in the amount required pursuant to the relevant
provisions of ss.7.7 or such Mortgage.
ss.3.3 OPTIONAL PREPAYMENTS. The Borrower shall have the right, at its
election, to prepay the outstanding amount of the Revolving Credit 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., Boston time, at least three (3) days
prior written notice of any prepayment pursuant to this ss.3.3, in each
case specifying the proposed date of prepayment of the applicable Revolving
Credit Loans and the principal amount to be prepaid.
ss.3.4 PARTIAL PREPAYMENTS. Each partial prepayment of the Loans under
ss.3.3 shall be in a minimum amount of $1,000,000.00 or an integral
multiple of $100,000 in excess thereof, shall be accompanied by the payment
of accrued interest on the principal prepaid to the date of payment. Each
partial payment under ss.3.2 and ss.3.3 shall be in the absence of
instruction by the Borrower, first applied to the principal of Revolving
Credit Loans, and within each category, first to the principal of Base Rate
Loans within such category and then to the principal of LIBOR Rate Loans
within such category.
ss.3.5 EXTENSION OPTION. The Borrower shall have a one-time option to
extend the term of the Facility for a period of one year from the date of
the initial Maturity Date (the "EXTENSION OPTION") provided that: (i) the
Borrower notifies the Agent in writing no less than sixty (60) days, nor
more than ninety (90) days, before the initial Maturity Date; (ii) the
Borrower is in full compliance with the terms of this Agreement; (iii) no
Default, or Event of Default has occurred or is otherwise continuing at the
time of the notice and as of the commencement of the Extension Option; and
(iv) an extension fee in the amount of 30 bps multiplied by the Facility
Amount is paid to the Agent for the pro rata benefit of the Lenders.
ss.3.6 EFFECT OF PREPAYMENTS. Amounts of the Revolving Credit Loans
prepaid under ss.3.2 and ss.3.3 prior to the Maturity Date may, provided
there is no Event of Default hereunder, be reborrowed as provided in ss.2.
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 Revolving Credit Loans to a Revolving Credit Loan of
another Type and such Revolving Credit 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 five (5) 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 month when any Default has
occurred and is continuing. All or any part of the outstanding
Revolving Credit Loans of any Type may be converted as provided
herein, PROVIDED that no partial conversion shall result in a
Revolving Credit Base Rate Loan in a principal amount of less than
$1,000,000 or a Revolving Credit 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 month 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 CLOSING FEE. The Borrower shall pay to Fleet on the Closing
Date such amount as is set forth in a separate agreement regarding any such
fees between Borrower and Fleet ("SEPARATE AGREEMENT REGARDING FEES").
ss.4.3 AGENT'S FEE. The Borrower shall pay to the Agent, for the
Agent's own account, an annual Agent's fee (the "AGENT'S FEE") as shall be
provided in the Separate Agreement Regarding Fees. The Agent's Fee shall be
payable quarterly in arrears on the first day of each calendar quarter for
the immediately preceding calendar quarter or portion thereof. The Agent's
Fee shall also be paid upon the Maturity Date or earlier termination of the
Commitments. The Agent's Fee for any partial quarter shall be prorated. The
parties hereto hereby acknowledge and agree that no Agent's Fee shall be
due at the initial closing of this Loan.
ss.4.4 FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, facility fees, Letter of
Credit fees, closing 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 Head Office, not later than 1:00 p.m. (Boston 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 of the Borrower with Fleet, 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 (and of the Lenders to make payments to the Issuing Lender
with respect to Letters of Credit) 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, any Letter of
Credit, any of the other Loan Documents; (ii) any improper use which
may be made of any Letter of Credit or any improper acts or omissions
of any beneficiary or transferee of any Letter of Credit in connection
therewith; (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 beneficiary or any transferee of any
Letter of Credit (or persons or entities for whom any such beneficiary
or any such transferee may be acting) or 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 any Letter of Credit, this Agreement, any other Loan Document, or
any unrelated transaction; (iv) any draft, demand, certificate,
statement or any other documents presented under any Letter of Credit
proving to be insufficient, forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect whatsoever; (v) any breach of any agreement between Borrower
or any of its Subsidiaries or Affiliates and any beneficiary or
transferee of any Letter of Credit; (vi) any irregularity in the
transaction with respect to which any Letter of Credit is issued,
including any fraud by the beneficiary or any transferee of such
Letter of Credit; (vii) payment by the Issuing Lender under any Letter
of Credit against presentation of a sight draft, demand, certificate
or other document which does not comply with the terms of such Letter
of Credit, provided that such payment shall not have constituted
negligence or willful misconduct on the part of the Issuing Lender;
(viii) any non-application or misapplication by the beneficiary of a
Letter of Credit of the proceeds of such Letter of Credit; (ix) the
legality, validity, form, regularity or enforceability of the Letter
of Credit; (x) the failure of any payment by Issuing Lender to conform
to the terms of a Letter of Credit (if, in Issuing Lender's good faith
judgment, such payment is determined to be appropriate and Issuing
Lender has not been negligent in such determination); (xi) the
surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; (xii) the
occurrence of any Default or Event of Default; and (xiii) 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 the Issuing 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,
a Letter of Credit 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, a Letter of Credit 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 the Letters of
Credit, 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 or participate in
Letters of Credit 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 ten (10) 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. Notwithstanding
anything to the contrary contained herein, if no Default or Event of
Default shall have occurred and be continuing, and if any Lender has given
notice of the existence of the circumstances set forth in ss.4.7 or has
requested payment or 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
(each, an "AFFECTED Lender"), then, within forty-five (45) days after such
notice or request for payment or compensation, Borrower shall have the
one-time right as to such Affected Lender, to be exercised by delivery of
written notice delivered to the Agent and the Affected Lender within
forty-five (45) days of receipt of such notice, to elect to cause the
Affected Lender to transfer its Commitment. The Agent shall promptly notify
the remaining Lenders that each of such Lenders shall have the right, but
not the obligation, to acquire a portion of the Commitment, pro rata based
upon their relevant Commitment Percentages, of the Affected Lender (or if
any of such Lenders does not elect to purchase its pro rata share, then to
such remaining Lenders in such proportion as approved by the Agent). In the
event that the Lenders do not elect to acquire all of the Affected Lender's
Commitment, then the Agent shall endeavor to obtain a new lender to acquire
such remaining Commitment. Upon any such purchase of the Commitment of the
Affected Lender, the Affected Lender's interest in the Obligations and its
rights hereunder and under the Loan Documents shall terminate at the date
of purchase, and the Affected Lender shall promptly execute all documents
reasonably requested to surrender and transfer such interest. The purchase
price for the Affected Lender's Commitment shall equal any and all amounts
outstanding and owed by Borrower to the Affected Lender, including
principal and all accrued and unpaid interest or fees including any
accrued, unbilled LIBOR breakage fees. In the event that no new Lender is
located to purchase the Affected Lender's Commitment, then Borrower shall
have the option after receipt of written
notice from Agent to Borrower that no new Lender has been obtained, to
terminate the Commitment of the Affected Lender and prepay in full all
amounts outstanding and owed by Borrower to the Affected Lender, including
principal and all accrued and unpaid interest or fees including any
accrued, unbilled LIBOR breakage fees.
ss.5. COLLATERAL SECURITY.
ss.5.1 COLLATERAL. The Obligations shall be secured by, among other
things, (i) a perfected first prioritY lien to be held by the Agent for the
ratable benefit of the Lenders on the Mortgaged Properties, pursuant to the
terms of the Mortgages, (ii) a perfected first priority security interest
to be held by the Agent for the benefit of the Lenders in the Leases
pursuant to the terms of the Assignments of Leases and Rents (iii) the
Indemnity Agreements and the other Security Documents, and (iv) the
Assignment of Interests pledging stock or membership interest of the
Borrower to the Agent for the benefit of the Lenders. The Obligations shall
be guaranteed pursuant to the Guaranty.
ss.5.2 INTENTIONALLY DELETED.
ss.5.3 REPLACEMENT OR ADDITION OF MORTGAGED PROPERTIES.
(a) After the Closing Date, the Borrower shall have the right,
subject to the consent of the Required Lenders and the satisfaction by
the Borrower of the conditions set forth in this ss.5.3, to add
PotentiaL Collateral to the Collateral or to replace any Mortgaged
Property which is Collateral with Potential Collateral. The Borrower
from time to time after the Closing Date may also request that certain
Real Estate of one or more Guarantors (collectively, the "GUARANTOR
COLLATERAL") be included as a Mortgaged Property for the purpose of or
replacing existing Collateral (collectively, the addition or
replacement of Potential Collateral to or for the Collateral,
respectively, or the replacement of Guarantor Collateral for the
Collateral shall be referred to as "COLLATERAL REPLACEMENT"). In the
event the Borrower desires to effect a Collateral Replacement as
aforesaid, the Borrower shall provide written notice to the Agent of
such request (which the Agent shall promptly furnish to the Lenders),
together with all documentation and other information required to
permit the Agent to determine whether such Real Estate is Eligible
Real Estate. Thereafter, the Agent shall have ten (10) Business Days
from the date of the receipt of such documentation and other
information to advise the Borrower whether the Required Lenders
consent to the acceptance of such Guarantor Collateral or Potential
Collateral. Notwithstanding the foregoing, no Guarantor Collateral or
Potential Collateral shall be included as Collateral unless and until
the following conditions precedent shall have been satisfied:
(i) such Guarantor Collateral or Potential Collateral shall
be Eligible Real Estate;
(ii) the owner of any Guarantor Collateral shall have
executed a Guaranty, or, in the Agent's reasonable discretion,
shall have been added as an additional Borrower hereunder
pursuant to an amendment to this Agreement in form and substance
reasonably satisfactory to the Agent and Agent's counsel;
(iii) the Borrower or the owner of the Guarantor Collateral
or Potential Collateral, as applicable, shall have executed and
delivered to the Agent all Eligible Real Estate
Qualification Documents (which may include an Assignment of
Interests with respect to any direct or indirect interests in the
owner of such Guarantor Collateral), all of which instruments,
documents or agreements shall be in form and substance reasonably
satisfactory to the Agent in its reasonable discretion; and
(iv) after giving effect to the inclusion of such Guarantor
Collateral or Potential Collateral, each of the representations
and warranties made by or on behalf of the Borrower or the
Guarantors or any of its 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 replacement or addition of Mortgaged Properties, 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.
(v) without limiting any of the foregoing, upon the
occurrence of a Collateral Replacement, Borrower must provide
evidence satisfactory to Agent that the amount Outstanding under
the Loans and the Letters of Credit does not exceed the Borrowing
Base.
(vi) Borrower shall pay any and all reasonable out-of-pocket
expenses and costs, including attorneys fees, incurred by Lenders
in connection with review and/or closing of the Guarantor
Collateral or Potential Collateral.
The decision of the Required Lenders to grant or withhold their
consent to the acceptance of Guarantor Collateral or Potential Collateral
under this ss.5.3 shall be based on the factors set forth in this ss.5.3
and THE other provisions of this Agreement relating to Eligible Real Estate
and Mortgaged Properties, provided however, that any such decision
hereunder shall be in the sole discretion of the Required Lenders.
(b) Borrower may, at its option, obtain preliminary approval of
the Required Lenders of Guarantor Collateral or Potential Collateral
by delivering to the Agent and each of the Lenders the following with
respect to such Guarantor Collateral or Potential Collateral:
(i) a physical description of the Real Estate;
(ii) current rent rolls, operating statements and an
operating and capital expenditure budget for such Real Estate
reasonably satisfactory to the Required Lenders;
(iii) to the extent then available in Borrower's files, a
Survey, environmental report, copies of existing title insurance
policies, engineering reports and similar information reasonably
satisfactory to the Required Lenders; and
(iv) a certification to the knowledge of Borrower that such
Real Estate will satisfy (or is anticipated to satisfy upon the
acceptance of such Real Estate as Collateral) each of the other
conditions to the acceptance of Real Estate as Collateral. The
Required Lenders shall have ten (10) Business Days following
receipt of all of the foregoing items to grant
or deny preliminary approval for such proposed Guarantor
Collateral or Potential Collateral. Agent shall notify the
Borrower if and when the Required Lenders have granted such
preliminary approval. In the event that the Required Lenders
grant such preliminary approval, the Borrower shall satisfy the
remaining requirements to the acceptance of such Collateral as
provided in ss.5.3(a). Such Real Estate shall noT be included in
the Borrowing Base until the requirements of ss.5.3(a) are
satisfied.
ss.5.4 RELEASE OF MORTGAGED PROPERTY. Provided no Default or Event of
Default shall have occurred hereundeR and be continuing (or would exist
immediately after giving effect to the transactions contemplated by this
ss.5.4), subject to the consent of the Agent and the Required Lenders, the
Agent shall release a Mortgaged Property from the lien or security title of
the Security Documents encumbering the same (a "COLLATERAL RELEASE") upon
the request of the Borrower subject to and upon the following terms and
conditions:
(a) the Borrower shall deliver to the Agent written notice of its
desire to obtain such release no later than ten (10) days prior to the
date on which such release is to be effected;
(b) the Borrower shall submit to the Agent with such request a
Compliance Certificate prepared using the financial statements of the
Borrower most recently provided or required to be provided to the
Agent under ss.6.4 oR ss.7.4 adjusted in the best good faith estimate
of the Borrower to give effect to the proposed release anD
demonstrating that no Default or Event of Default with respect to the
covenants referred to therein shall exist after giving effect to such
release;
(c) all release documents to be executed by the Agent shall be in
form and substance reasonably satisfactory to the Agent;
(d) the Borrower shall pay all reasonable costs and expenses of
the Agent in connection with such release, including without
limitation, reasonable attorney's fees;
(e) the Borrower shall pay to the Agent for the account of the
Lenders a release price in an amount equal to that which is necessary
to provide that the amount Outstanding under the Facility does not
exceed the Borrowing Base after giving effect to such release; said
release price amount shall be applied to reduce the outstanding
principal balance of the Loans as provided in ss.3.4.
ss.5.5 RELEASE OF COLLATERAL. Upon the refinancing or repayment and
satisfaction of the ObligationS in full, then the Agent shall release the
Collateral from the lien and security interest of the Security Documents.
ss.6. REPRESENTATIONS AND WARRANTIES.
The Borrower and each Guarantor, as applicable represents, warrants
and covenants to the Agent and the Lenders as follows:
ss.6.1 CORPORATE, LIMITED LIABILITY COMPANY AUTHORITY, ETC.
(a) BORROWER SPECIAL PURPOSE ENTITY. Until the Loan and all other
obligations of Borrower to Lender under the Loan Documents have been
paid in full and the Lenders have no further obligations to make any
Loans or issue any Letters of Credit hereunder, Borrower and each
Additional Guarantor hereby represent, warrant and covenant that each
Borrower and Additional 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 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 Lender; 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 Loan, (ii) liabilities incurred in the ordinary
course of business relating to the ownership and operation of the
Mortgaged Properties 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.
(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 Lender under this Agreement or any other Loan
Document.
(c) Intentionally Deleted.
(d) GUARANTOR-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 Loan.
(e) BORROWER-SPE. Pershing 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 Missouri, Louisiana, Kansas, Michigan, Arizona and Virginia,
subject to deletion or addition of a state as a result of any change
in the Mortgaged Properties and Development Properties. Hialeah is a
Missouri limited liability company duly organized pursuant to articles
of incorporation filed with the Missouri Secretary of State, and is in
good standing under the laws of Missouri and Florida, subject to
deletion or addition of a state as a result of any change in the
Mortgaged Properties and Development Properties. Westcol is a Delaware
limited liability company duly organized pursuant to articles of
organization filed with the Delaware Secretary of State and is in good
standing under the laws of Delaware and
Colorado, subject to deletion or addition of a state as a result of
any change in the Mortgaged Properties and Development Properties.
Each Borrower conducts its business in a manner which enables it to
qualify as an SPE. Each Borrower (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 and Development 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 the Borrower.
No Borrower has 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 Loan.
(f) SUBSIDIARIES. Each of the Subsidiaries of the Guarantor (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 and the other Loan Documents to which any of the
Borrower or any 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
and the other Loan Documents to which any of the Borrower or any
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 and the other LoaN Documents to which the Borrower or any
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 and the filing of the
Security Documents in the appropriate records office with respect thereto.
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 Guarantors and
its Subsidiaries own or lease all of the assets reflected in the
Consolidated balance sheet of Borrower, Guarantor and its 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 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 Lender nor shall any
such information contained in any such prior filings be deemed delivered to
Lender.
ss.6.4 FINANCIAL STATEMENTS. The Borrower has furnished to Agent and
the Lenders: (a) the ConsolidateD balance sheet of Guarantor 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) to
the extent available to Borrower, 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 Guarantors 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 Guarantor and its Subsidiaries for such
periods. There are no liabilities, contingent or otherwise, of the
Guarantor 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 as of 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
Borrower, EPR and its Subsidiaries taken as a whole as shown on or
reflected in the consolidated balance sheet of the Borrower, Guarantor 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 Borrower 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
Guarantors 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 owned or operated
under or by reference to any registered or protected trademark, trade name,
service ▇▇▇▇ or of Borrower, Guarantors 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, any Guarantor or
any of its Subsidiaries before any court, tribunal, arbitrator, mediator or
administrative agency or board which question the validity of this
Agreement or any of the other Loan Documents, 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, any Guarantor, any of its Subsidiaries or any Mortgaged Property.
ss.6.8 NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrower, any
Guarantor or any of its 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 Guarantors or any of itS 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 Guarantors and its
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 Guarantors or any of itS 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, any Guarantor
or its 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 property of the Borrower.
ss.6.14 SETOFF, ETC. The Collateral and the rights of the Agent and
the Lenders with respect to the CollateraL are not subject to any setoff,
claims, withholdings or other defenses (provided that the foregoing
representation shall not be deemed a representation as to any potential
claims of tenants under Leases, which are covered by ss.6.22).
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, any
Guarantor or any of its Subsidiaries is a party to any material agreement
with the Borrower, any Guarantor or any of its 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,
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, a Guarantor or any of its
Subsidiaries than those that would be obtained in a comparable arms-length
transaction.
ss.6.16 EMPLOYEE BENEFIT PLANS. The Borrower, each 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,
any 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 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 Guarantors and its Subsidiaries in this
Agreement and the other Loan Documents or any document or instrument
delivered to the Agent or the Lenders pursuant to or in connection with any
of such Loan Documents are true and correct in all material respects, and
neither the Borrower nor any 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, any Guarantor or the Mortgaged Properties (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 Guarantors' counsel (although
the Borrower and the Guarantors 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 (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 any
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 any Borrower nor anY 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 any 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 has taken all
commercially reasonable steps to investigate thE past and present
conditions and usage of the Mortgaged Properties 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 its
Subsidiaries, the environmental site assessment reports with respect
thereto provided to the Agent, makes the following representations and
warranties:
(a) Neither the Borrower, any Guarantor, its Subsidiaries nor to
the best knowledge and belief of Borrower, Guarantor or its
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 ("▇▇▇▇"), 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) and
would have a Material Adverse Effect or (ii) involves Mortgaged
Property.
(b) Neither the Borrower, any Guarantor nor any of its
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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (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, any
Guarantor or any of its 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 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 except those
which are being operated and maintained in compliance with
Environmental Laws; (ii) in the course of any activities conducted by
the Borrower, any Guarantor, its Subsidiaries or, to the best
knowledge and belief of the Borrower, the operators of their
properties, no Hazardous Substances have been generated or are being
used on the Real Estate 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,
which Release would have a material adverse effect on the value of
such Mortgaged Properties 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 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; and (v) any
Hazardous Substances that have been generated on any of the Real
Estate 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 any Guarantor shall be limited to the
best knowledge and belief of the Borrower.
(d) To the best knowledge of each of the Borrower, any Guarantor
or its Subsidiaries, none of the Borrower, any Guarantor, its
Subsidiaries and the Real Estate 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 its
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.
(f) There has been no claim received by Borrower, Guarantor or
its Subsidiaries by any party that any use, operation, or condition of
the Real Estate 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 its 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 be
correct when such properties are accepted as Collateral.
ss.6.21 SUBSIDIARIES. The Borrower does not have nor during any time
that any Obligations are outstanding, shall the Borrower have any
Subsidiaries. SCHEDULE 6.21(A) sets forth, as of the date hereof, all of
the Subsidiaries of the Guarantors, 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 its Subsidiaries that are not also Subsidiaries, the form and
jurisdiction of organization of each of the Affiliates, any Guarantor's or
its 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 MortgageD Property required to be delivered as
a part of the Eligible Real Estate Qualification Documents as of the date
hereof. An accurate and complete Rent Roll and Lease Summary as of the date
of inclusion of each Mortgaged Property in the Collateral with respect to
all Leases of any portion of the Mortgaged Property 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 Mortgaged Property 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 reflected therein are, as of the date of inclusion of
the applicable Mortgaged Property in the Collateral, 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
Borrower has knowledge thereof, neither the Borrower nor any 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 Mortgaged Property 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 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, Guarantors and its 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 Mortgaged Properties which are payable by the
Borrower or any 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 Guarantors or any of its 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 any property of the Borrower,
the Guarantors or its 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 property of the Borrower, the
Guarantors or its 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, any Guarantor nor any of its
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 Guarantor 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.
The Borrower is not 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 and each Guarantor and its Subsidiaries or their respective
properties and entered into by the Borrower and/or such Guarantor as of the
date of this Agreement with respect to any Indebtedness of the Borrower or
any 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 any 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 each Guarantor is able to pay its debts as
they become due, and the Borrower and each Guarantor has sufficient capital
to carry on its business.
ss.6.27 NO BANKRUPTCY FILING. None of the Borrower or any 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 any Guarantor.
ss.6.28 NO FRAUDULENT INTENT. Neither the execution and delivery of
this Agreement or any of the other LoaN Documents nor the performance of
any actions required hereunder or thereunder is being undertaken by the
Borrower or any Guarantor or any of its 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 BORROWER; CONSIDERATION. The
transaction evidenced by this AgreemenT and the other Loan Documents is in
the best interests of the Borrower, each Guarantor and its Subsidiaries.
The direct and indirect benefits to inure to the Borrower, its
Subsidiaries, the Guarantors 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, the Guarantors and its
Subsidiaries pursuant to this Agreement and the other Loan Documents, and
but for the willingness of each Guarantor to guaranty the Loan, the
Borrower would be unable to obtain the financing contemplated hereunder
which financing will enable the Borrower, each Guarantor and its
Subsidiaries to have available financing to conduct and expand their
business.
ss.6.30 CAPITALIZATION. The authorized membership interest of Pershing
and the corporate shares of Hialeah anD Megaplex Four are owned 100% by
EPR; the authorized membership interest of Westcol is owned 100% by
Megaplex Four.
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 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. 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. Borrower hereby restates and
reaffirms each of the representationS and warranties made by Borrower or
any Guarantor set forth in the Mortgage and the Assignment of Leases and
Rents 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.
The Borrower and each Guarantor (as applicable) covenants and agrees to the
following, so long as any Obligation, Loan, Note or any Letter of Credit is
outstanding or any of the Lenders have any obligation to make any Loans or issue
Letters of Credit:
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 each Guarantor will
maintain its respective chief executive office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇,▇▇▇▇▇, or at such other place in the United States of
America as the Borrower or any 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 such
Guarantor in respect of the Loan Documents may be given or made.
ss.7.3 RECORDS AND ACCOUNTS. The Borrower and each 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, any Guarantor nor any of its 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 which will be delivered by Agent to 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, Guarantor 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, EPR 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, Guarantor 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 Lender be deemed delivered
to Lender nor shall any such information contained in any such prior
filings be deemed delivered to 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, Guarantor 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. Borrower shall submit with the
Compliance Certificate a Borrowing Base Certificate in the form of
EXHIBIT J attached hereto pursuant to which the Borrower shall
calculate the amount of the Borrowing Base as of the end of the
immediately preceding fiscal quarter of the Borrower. 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 to the Lenders 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 its 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 a Consolidated operating
statement for the Mortgaged Properties, and a copy of each Lease or
amendment entered into with respect to a Mortgaged Property 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 Mortgaged Properties;
(k) not later than November 15 of each year, the cash flow
projections of the Borrower, Guarantor and its Subsidiaries for the
next three years;
(l) from time to time such other financial data and information
in the possession of the Borrower, each Guarantor or its 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 any 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 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 each Guarantor will 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, any Guarantor or any of its 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 such 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 each Guarantor will
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, any Guarantor or any of its
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, or (C) or the Agent's liens or security title
on the Collateral pursuant to the Security Documents.
(c) NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The Borrower and
each Guarantor will give notice to the Agent in writing within five
(5) Business Days of obtaining actual knowledge of any material
setoff, claims (including, with respect to the Mortgaged Property,
environmental claims), withholdings or other defenses to which any of
the Collateral, or the rights of the Agent or the Lenders with respect
to the Collateral, are subject.
(d) NOTICE OF LITIGATION AND JUDGMENTS. The Borrower and each
Guarantor will 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, any Guarantor or any of its
Subsidiaries or to which the Borrower, any Guarantor or any of its
Subsidiaries is or is to become a party involving an uninsured claim
against any of the Borrower, any Guarantor or any of its 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 each Guarantor will 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,
any Guarantor or any of its 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 each Guarantor will 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 Borrower 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 Borrower 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. Each other
Guarantor (if any) will preserve and keep in full force and effect its
legal existence in the jurisdiction of its incorporation or formation.
The Borrower and each Guarantor will cause each of its 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. Borrower 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 Borrower 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 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
Mortgaged Properties, the Borrower shall promptly and diligently
comply with the recommendations of the Environmental Engineer
concerning the maintenance, operation or upkeep of the Mortgaged
Properties contained in the building inspection and environmental
reports delivered to the Agent or otherwise obtained by Borrower or
any Guarantor. This Section 7.6(b) shall be subject, however, to any
provisions in the applicable Leases regarding restriction of Borrower,
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 Guarantors and its Subsidiaries, 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 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 Mortgaged Properties provided that the coverage in place as
required in the applicable Leases for the Mortgaged Properties 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
will be maintained by the Tenant under each of the applicable
leases for the Mortgaged Property at Tenant's sole cost and
expense, for the mutual benefit of such tenant, Borrower and the
Agent and the Required 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 Mortgaged 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 Mortgaged Property 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 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.
(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
designate Agent for the benefit of the Lenders as additional insured
on all 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 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
the each individual Mortgaged Property, 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 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 each Mortgaged Property, 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
Mortgagee and bear interest at the Default Rate.
(g) In the event of any loss or damage to the Mortgaged Property,
the Borrower or the applicable Guarantor shall give prompt written
notice to the insurance carrier and the Agent and the Lenders. Each of
the Borrower and the Guarantors 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
any Guarantor shall in good faith diligently pursue such claim, the
Borrower or such 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 such 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 such 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 such Guarantor shall in good faith diligently
pursue such claim. The Borrower and each Guarantor further authorize
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 Mortgaged Property, 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 the Mortgaged Property
and the Obligations as they become due during the course of
reconstruction or repair of the Mortgaged Property and to reimburse
the Borrower or such Guarantor, in accordance with such terms and
conditions as the Agent may prescribe, for the costs of reconstruction
or repair of the Mortgaged 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
available to the Borrower or such Guarantor to reconstruct and repair
the Mortgaged 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 such 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 Mortgaged 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 such Guarantor shall have delivered
to the Agent written agreements binding upon the Tenants in possession
of any portion of the affected Mortgaged Property or having any right
to require repair, restoration or completion of the Mortgaged Property
or any portion thereof, agreeing upon a date for delivery of
possession of the Mortgaged 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, any 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 the
Mortgaged 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 Mortgaged
Properties (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 the Mortgaged Property is sold or the
Mortgaged Property is acquired by the Agent, all right, title and
interest of the Borrower and any Guarantor in and to any insurance
policies and unearned premiums thereon and in and to the proceeds
thereof resulting from loss or damage to the Mortgaged Property prior
to the sale or acquisition shall pass to the Agent or any other
successor in interest to the Borrower or purchaser of the Mortgaged
Property.
(i) The Borrower and the Guarantors will provide to the Agent for
the benefit of the Lenders Title Policies for all of the Mortgaged
Properties of such Person. 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 Borrower and each Guarantor.
ss.7.8 TAXES; LIENS. The Borrower and the Guarantors 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 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
Collateral or other property of Borrower, the Guarantors 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,
any such 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, any such 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
Guarantors will, and will cause its 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, each Guarantor or any of its
Subsidiaries, to examine the books of account of the Borrower, each
Guarantor and its Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the
Borrower, any Guarantor and its 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 Guarantors and its Subsidiaries.
ss.7.10 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower and the Guarantors will, and will cause each of its 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, any Guarantor or its Subsidiaries may
fulfill any of its obligations hereunder, the Borrower, such 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 each Guarantor will and
will cause each of its 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 Mortgaged Property without the prior written
consent of the Agent (which shall not be unreasonably withheld or delayed).
Agent may condition any approval of a new manager upon the execution and
delivery to Agent of 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. Borrower has
provided to Agent full and complete copies of the currently existing
management contracts for the initial Mortgaged Properties (the "INITIAL
MANAGEMENT CONTRACTS"), which such Initial Management Contracts are in full
force and effect as of the date of this Agreement. The parties acknowledge
that Agent has approved said Initial Management Contracts.
ss.7.13 LEASES OF THE PROPERTY. Neither the Borrower nor any
Additional Guarantor will lease all or any portion of a Mortgaged Property
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 without
the prior written consent of the Agent, which such consent may be withheld
or conditioned in Agent's reasonable discretion, except for those
properties that do not exceed the Megaplex Threshold or the Entertainment
Retail Threshold, as applicable, for which no consent shall be required.
ss.7.14 BUSINESS OPERATIONS. The Borrower, the Guarantors and its
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 Mortgaged Properties shall be owned or operated by
the Borrower or any Guarantor under any registered or protected trademark,
tradename, servicemark or logo. Without limiting the foregoing, the Agent
may 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
Mortgaged Property under its trademarks and tradenames or service marks.
ss.7.16 DEPOSIT OF PROCEEDS; OTHER BANK ACCOUNTS.
(a) Borrower shall maintain all of its accounts (including
without limitation, operating accounts, tenant security deposit
accounts, etc.) (collectively, the "ACCOUNTS," singly, an "ACCOUNT"),
with Agent.
(b) (i) If any payment is not made when due under any of the Loan
Documents, after giving regard to applicable grace periods, if any or
(ii) if any Event of Default, or other event which would entitle Agent
to accelerate the indebtedness under any Note occurs; then, in any
such event, any deposits, balances or other sums credited by or due
from Agent in the Account may to the fullest extent not prohibited by
applicable law at any time or from time to time, without regard to the
existence, sufficiency or adequacy of any other collateral, and
without notice or compliance with any other condition precedent now or
hereafter imposed by statute, rule of law or otherwise, all of which
are hereby waived, be set off, debited and appropriated, and applied
by Agent against any or all of the Obligations irrespective of whether
demand shall have been made and although such Obligations may be
unmatured, in such manner as Agent in its sole and absolute discretion
may determine. Within five (5) Business Days of making any such set
off, debit or appropriation and application with respect to the
Account, Agent agrees to notify Borrower thereof, provided the failure
to give such notice shall not affect the validity of such set off,
debit or appropriation and application.
(c) The Borrower shall provide notice to all Tenants which such
notice shall (i) direct all Tenants to deposit all payments into the
operating account, and (ii) be irrevocable as to Borrower and may not
be rescinded unless by written notice from the Agent. Notwithstanding
anything to the contrary, however, until an Event of Default has
occurred hereunder, and subject to the other terms and conditions
contained in this Agreement, the Borrower shall be permitted to
withdraw funds from the Accounts. Agent, as depository bank for the
Accounts ("DEPOSITORY BANK"), shall have a validly perfected lender's
first lien security interest in such Accounts.
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 (i) an Event of Default shall have occurred and be continuing,
and the maturity of the Obligations has been accelerated, or (ii) there
shall have occurred and be continuing, an Event of Default under 12.1(a),
12.1(b), 12.1(h), 12.1(i), or 12.1 (j), then Borrower shall not make any
Distributions, either directly or indirectly to EPR, whatsoever.
ss.7.18 MORTGAGED PROPERTY APPRAISALS. Agent reserves the right to
require the Mortgaged Properties to be re-appraised at any time, provided
however, the Borrower shall only be responsible for the cost of an
appraisal at the time a property is initially proposed as a Mortgaged
Property, and once every eighteen (18) months thereafter, unless more
frequently required by any applicable real estate lending regulations or
other laws, or in the event of an Event of Default.. Borrower shall
cooperate with Agent at any time Agent requires any such re-appraisal.
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 Mortgaged Properties 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 as a Megaplex Movie
Theatre and all appurtenant and related uses. The use being made of each of
the Mortgaged Properties is in conformity with the certificate of occupancy
issued for each such Mortgaged Property.
ss.7.22 INTENTIONALLY DELETED.
ss.7.23 GROUND LEASES. Borrower and any applicable Additional
Guarantor covenants, represents and warrants to Agent and each of the
Lenders with respect to any ground lease of any of the Mortgaged Properties
(a "QUALIFIED GROUND LEASE" or collectively, "QUALIFIED GROUND LEASES"), if
any, as follows:
(a) Except as previously disclosed to Agent, to the best
knowledge of the Borrower, no default has occurred and is continuing
under the terms of any Qualified Ground Lease, and no event has
occurred that, with the passage of time or service of notice, or both,
would constitute an event of default under any Qualified Ground Lease.
(b) Each Qualified Ground Lease is in full force and effect.
(c) All rents, additional rents, percentage rents and all other
charges due and payable under each Qualified Ground Lease have been
fully paid.
(d) Subject to the Permitted Encumbrances, Borrower (or any
Additional Guarantor, as applicable) is the owner of the entire
lessee's interest in and under each Qualified Ground Lease and has the
right and authority under each Qualified Ground
Lease to execute this Agreement, the related Mortgage and other
related Loan Documents, and to encumber Borrower's interest in the
Qualified Ground Leases.
(e) Borrower and any Additional Guarantor, as applicable, shall,
at its sole cost and expense, promptly and timely perform and observe,
or cause the applicable Tenant under a Qualified Ground Lease to
promptly and timely perform and observe, all the material terms,
covenants and conditions required to be performed and observed by
Borrower as lessee under each Qualified Ground Lease (including the
payment of all rent, additional rent, percentage rent and other
charges required to be paid under such Qualified Ground Lease).
(f) If Borrower or any Additional Guarantor, as applicable, shall
violate any of the covenants specified above, then, subject to the
applicable Qualified Ground Lease terms, Borrower grants Agent the
right (but not the obligation) to cause the default or defaults under
any Qualified Ground Lease and the applicable Tenant Lease to be
remedied and otherwise exercise any and all rights of Borrower or
Additional Guarantor under each Qualified Ground Lease, as may be
necessary to prevent or cure any default, provided such actions are
necessary to protect Lenders' interest under this instrument, and
Agent shall have the right subject to the terms of the Qualified
Ground Lease to enter all or any portion of such Mortgaged Property at
such times and in such manner as Agent deems necessary, to prevent or
to cure any such default.
(g) The actions or payments of Agent to cure any default by
Borrower or any Additional Guarantor, as applicable, under any
Qualified Ground Lease shall not remove or waive, as between any
Obligor and Lenders, the default that occurred under this Agreement by
virtue of the default by Borrower or Guarantor, as applicable, under
any Qualified Ground Lease. All sums expended by Agent to cure any
such default shall be paid by Borrower to Agent, upon demand, with
interest on such sum at the rate set forth in the Notes from the date
such sum is expended to and including the date the reimbursement
payment is made to the Agent. All such indebtedness shall be deemed to
be secured by the Mortgages and other Loan Documents.
(h) Borrower shall notify Agent promptly in writing after any
Obligor receives notice of the occurrence of any material default by
the lessor under any Qualified Ground Lease or the occurrence of any
event that, with the passage of time or service of notice, or both,
would constitute a material default by the lessor under any Qualified
Ground Lease, and the receipt by Borrower or any Additional Guarantor,
as applicable, of any notice (written or otherwise) from the lessor
under any Qualified Ground Lease noting or claiming the occurrence of
any default by any Obligor under any Qualified Ground Lease or the
occurrence of any event that, with the passage of time or service of
notice, or both, would constitute a default by any Obligor under any
Qualified Ground Lease. Borrower shall promptly deliver to Agent a
copy of any such written notice of default.
(i) Within thirty (30) days after written demand by Agent,
Borrower or Additional Guarantor shall use reasonable efforts (other
than payments to the lessor) to obtain from the lessor under any
Qualified Ground Lease and furnish to Agent the
estoppel certificate of such lessor stating the date through which
rent has been paid and whether or not there are any defaults
thereunder and specifying the nature of such claimed defaults, if any.
(j) Subject to the applicable Qualified Ground Lease terms, and
the terms of the applicable Lease Borrower or Additional Guarantor, as
applicable, shall promptly execute, acknowledge and deliver to Agent
such instruments as may reasonably be required to permit Agent to cure
any default under any Qualified Ground Lease or permit Agent to take
such other action required to enable Agent to cure or remedy the
matter in default and preserve the security interest of Agent under
the Loan Documents with respect to any Property which is the subject
of a Qualified Ground Lease. Borrower irrevocably appoints Agent as
its true and lawful attorney-in-fact to do, in its name or otherwise,
any and all acts and to execute any and all documents that are
necessary to preserve any rights of Borrower under or with respect to
the Qualified Ground Leases, after an Event of Default, including the
right to effectuate any extension or renewal of any Qualified Ground
Lease, or to preserve any rights of Borrower or Additional Guarantor,
as applicable, whatsoever in respect of any part of any Qualified
Ground Lease (and the above powers granted to Agent are coupled with
an interest and shall be irrevocable).
(k) The generality of the provisions of this section relating to
the Qualified Ground Lease shall not be limited by other provisions of
this Agreement or the other Loan Documents setting forth particular
obligations of any Obligor that are also required of Borrower or any
Additional Guarantor, as applicable, with respect to the Qualified
Ground Leases or any related Mortgaged Properties subject to any such
Qualified Ground Lease.
(l) Borrower or Additional Guarantor, as applicable, shall not,
without Agent's prior written consent, surrender, terminate, forfeit,
or suffer or permit the surrender, termination or forfeiture of, or
change, modify or amend in a material or adverse manner, any Qualified
Ground Lease. Consent to one amendment, change, agreement or
modification shall not be deemed to be a waiver of the right to
require consent to other, future or successive amendments, changes,
agreements or modifications. Any acquisition of any lessor's interest
in any Qualified Ground Lease by Borrower or Additional Guarantor, or
any affiliate of Borrower or Additional Guarantor, shall be
accomplished by Borrower or any such Additional Guarantor in such a
manner so as to avoid a merger of the interests of lessor and lessee
in such Qualified Ground Lease, unless consent to such merger is
granted by Agent.
(m) Notwithstanding anything to the contrary contained in this
Agreement with respect to the Qualified Ground Leases:
(i) The lien of the related Mortgage attaches to all of
Borrower's rights and remedies at any time arising under or
pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C.
Sections 101 et seq. (the "BANKRUPTCY CODE"), including all of
Borrower's rights, as debtor, to remain in possession of the
related Mortgaged Property subject to such Qualified Ground
Lease.
(ii) Borrower or an Additional Guarantor shall not, without
Agent's written consent, elect to treat any Qualified Ground
Lease as terminated under subsection 365(h)(1) of the Bankruptcy
Code. Any such election made without Agent's prior written
consent shall be void.
(iii) As security for the Loan, but subject to the terms of
the applicable Leases, Borrower and Additional Guarantor, as
applicable, unconditionally assigns, transfers and sets over to
Agent for the benefit of the Lenders all of Borrower's and
Additional Guarantor's claims and rights to the payment of
damages arising from any rejection by the lessor under any
Qualified Ground Lease under the Bankruptcy Code. Agent and
Borrower and/or Additional Guarantor shall proceed jointly or in
the name of Borrower and/or Additional Guarantor in respect of
any claim, suit, action or proceeding relating to the rejection
of any Qualified Ground Lease, including the right to file and
prosecute any proofs of claim, complaints, motions, applications,
notices and other documents in any case in respect of lessor
under the Bankruptcy Code. This assignment constitutes a present,
irrevocable and unconditional assignment of the foregoing claims,
rights and remedies, and shall continue in effect until all of
the Loan and other obligations of Borrower to Agent under the
Loan Documents shall have been satisfied and discharged in full.
Any amounts received by Agent or Borrower or Additional Guarantor
as damages arising out of the rejection of any Qualified Ground
Lease as aforesaid shall be applied first to all costs and
expenses of Agent (including attorneys' fees and costs) incurred
in connection with the exercise of any of its rights or remedies
under this Section 7.23(m) and then in accordance with the other
applicable provisions of this Agreement.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy
Code, Borrower or any Additional Guarantor seeks to offset,
against the rent reserved in any Qualified Ground Lease, the
amount of any damages caused by the nonperformance by the lessor
of any of its obligations thereunder after the rejection by
lessor of any Qualified Ground Lease under the Bankruptcy Code,
then Borrower or Additional Guarantor shall not effect any offset
of the amounts so objected to by Agent. If Agent has failed to
object as aforesaid within ten (10) days after notice from
Borrower of any such offset, Borrower may proceed to offset the
amounts set forth in such notice.
(v) If any action, proceeding, motion or notice shall be
commenced or filed in respect of any lessor of all or any part of
the leasehold property in connection with any case under the
Bankruptcy Code, Agent and Borrower and Additional Guarantor
shall cooperatively conduct and control any such litigation with
counsel agreed upon between Borrower and Agent in connection with
such litigation. Borrower shall, upon demand, pay to Agent all
costs and expenses (including reasonable attorneys' fees and
costs) actually paid or actually incurred by Agent in connection
with the cooperative prosecution or conduct of any such
proceedings. All such costs and expenses shall be secured by the
lien of the Mortgages and other Loan Documents.
(vi) Borrower or Additional Guarantor shall promptly, after
obtaining knowledge of such filing notify Agent orally of any
filing, by or against any lessor under a Qualified Ground Lease
of a petition under the Bankruptcy Code. Borrower shall
thereafter promptly give written notice of such filing to Agent,
setting forth any information available to Borrower as to the
date of such filing, the court in which such petition was filed,
and the relief sought in such filing. Borrower shall promptly
deliver to Agent any and all notices, summonses, pleadings,
applications and other documents received by Borrower in
connection with any such petition and any proceedings relating to
such petition.
(n) In addition to those events otherwise set forth in this
Agreement, the occurrence of any of the following events shall, at
Agent's option, constitute an Event of Default, and, upon the
occurrence of an Event of Default, Agent shall have all of the rights
and remedies available to it under this Agreement and the other Loan
Documents;
(i) A breach or default by Borrower, any Additional
Guarantor or its Subsidiaries under any condition or obligation
contained in any Qualified Ground Lease for which such Borrower,
Additional Guarantor or Subsidiary is required to receive notice,
that is not cured within any applicable cure period provided
therein or an action to terminate the Ground lease has been
commenced by the Ground lessor;
(ii) A breach or default by Borrower, any Additional
Guarantor or its Subsidiaries of any payment obligation contained
in any Qualified Ground Lease, provided however, that if notice
is required with respect to same, then notice shall have been
given and such default not cured within such applicable time
period, or any action to terminate the Ground lease has been
commenced by the Ground lessor
(ii) The occurrence of any event or condition that gives the
lessor under any Qualified Ground Lease a right to terminate or
cancel such Qualified Ground Lease unless cured by Borrower; or
(iii) Borrower's or Additional Guarantor's failure to permit
Agent and/or its representatives at all reasonable times upon
reasonable prior written notice, but subject to the applicable
Qualified Ground Lease and Qualified Lease respective terms, to
make investigation or examination concerning Borrower's or
Additional Guarantor's performance and observance of the terms,
covenants and conditions of any Qualified Ground Lease.
(o) Borrower or any applicable Additional Guarantor shall not,
without Agent's written consent, fail to exercise to exercise any
option or right to renew or extend the term of any Qualified Ground
Lease at least six (6) months prior to the date of termination of any
such option or right, and shall give immediate written notice to Agent
and shall execute, acknowledge, deliver and record any document
requested by Agent to evidence the lien of the applicable Mortgage on
such extended or renewed lease term; provided, however, Borrower or
any applicable Additional Guarantor shall not be
required to exercise any particular such option or right to renew or
extend to the extent Borrower or any applicable Additional Guarantor
shall have received the prior written consent of Agent (which consent
may be withheld by Agent in its sole and absolute discretion) allowing
Borrower or any applicable Additional Guarantor to forego exercising
such option or right to renew or extend. If Borrower or any applicable
Additional Guarantor shall fail to exercise any such option or right
as aforesaid, Agent may exercise the option or right as Borrower's or
Additional Guarantor's agent and attorney-in-fact as provided above in
Agent's own name or in the name of and on behalf of a nominee of
Agent, as Agent may determine in the exercise of its sole and absolute
discretion.
(p) Upon the request of Agent, Borrower shall deposit with Agent
a copy of each fully executed Qualified Ground Lease certified by
Borrower or applicable Additional Guarantor as true and correct, as
further security to Agent, until all of the obligations are fully paid
and performed.
(q) Borrower or any applicable Additional Guarantor shall not
waive, excuse, condone or in any way release or discharge the lessor
under any Qualified Ground Lease of or from such lessor's material
obligations, covenant and/or conditions under such Qualified Ground
Lease without the prior written consent of Agent.
(r) To the best of Borrower's knowledge, as of the Closing Date,
there has been no event which would materially alter information
contained in those ground lessor estoppels delivered by Borrower to
Agent with respect to the Qualified Ground Leases prior to the date
hereof.
ss.8. NEGATIVE COVENANTS.
The Borrower and Additional Guarantors (and Guarantor, as applicable)
covenants and agrees that, so long as any Obligations, Loan, Note or Letter of
Credit is outstanding or any of the Lenders has any obligation to make any Loans
or issue any Letters of Credit:
ss.8.1 RESTRICTIONS ON INDEBTEDNESS.
A. BORROWER. Neither the Borrower nor any Additional Guarantors
will 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) current liabilities of the Borrower, and the Additional
Guarantors or its Subsidiaries 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) a limited guaranty of the Bridge Loan (as defined in
ss.9.8 herein), secured by the AMC Properties, PROVIDED HOWEVER
that recourse of RBC and Chase (as each is defined in ss.9.8) to
Pershing under such limited guaranty be limited in the aggregate
to Pershing's interest in the AMC Properties up to the fair
market value thereof, only.
B. GUARANTOR. The Guarantor 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
Facility; (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 which Letters of Credit shall within
one-hundred twenty (120) days from the date of this Agreement, be
either retired or otherwise collateralized in a manner satisfactory to
the Agent; (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.
ss.8.2 RESTRICTIONS ON LIENS, ETC. The Borrower will not (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); or (f)
incur or maintain any obligation to any holder of Indebtedness of Borrower
which prohibits the creation or maintenance of any lien securing the
Obligations (collectively, "LIENS"); PROVIDED that the Borrower 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 Collateral, the Mortgaged
Property or any interest therein (including the rents, issues and
profits therefrom) in respect of judgments, awards or Indebtedness
which is permitted by ss.8.1A;
(iv) encumbrances on the Mortgaged Properties 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 to which the Borrower, the Guarantors or any such
Subsidiary is a party, purchase money security interests and other
liens or encumbrances, which do not individually or in the aggregate
have a materially adverse effect on the business of the Borrower on a
consolidated basis;
(v) liens in favor of the Agent and the Lenders under the Loan
Documents to secure the Obligations; and
(vi) liens and encumbrances on a Mortgaged Property expressly
permitted hereunder or under the terms of the Mortgage relating
thereto.
ss.8.3 RESTRICTIONS ON INVESTMENTS. The Borrower will not 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 Borrower or any such Subsidiary;
(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 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, 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 ▇▇▇▇▇'▇ Investors Service, Inc. or by Standard &
Poor's Corporation at not less than "P 1" if then rated by ▇▇▇▇▇'▇
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
▇▇▇▇▇'▇ Investors Service, Inc. or by Standard & Poor's Corporation at
not less than "AA" if then rated by ▇▇▇▇▇'▇ 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, 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 ▇▇▇▇▇▇▇ 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 Borrower created after
the date of this Agreement;
(j) deposits required by government agencies or public utilities;
ss.8.4 MERGER, CONSOLIDATION.
(a) The Borrower will not become a party to any dissolution,
liquidation or disposition of all or substantially all of Borrower'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 (i) the merger or consolidation of Borrower with
another Subsidiary of EPR or any Guarantor, and (ii) the merger or
consolidation of Borrower where the
Borrower is the sole surviving entity provided however that any such
merger or consolidation does not violate Borrower'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 Borrower
(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 Borrower 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 Borrower 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 Borrower)
to confirm, if required by such change in Environmental Laws that no
Hazardous Substances are or ever were Released or disposed of by
Borrower, any Guarantor per its Subsidiary, or to the best knowledge
of Borrower or any Guarantor, any Tenant, on the Mortgaged Properties
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 Borrower or any such
Subsidiary), the Borrower 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 Borrower
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 Real Estate (except any such Release or disposal occurring prior
to the acquisition or leasing of such Real Estate by the Borrower or
any Guarantor and disclosed in an environmental assessment delivered
to the Agent and the Lenders prior to the inclusion of such Real
Estate in the Collateral) and such Real Estate is a Mortgaged
Property, the Agent shall have the right to require that the Borrower
provide to the Agent a substitute Mortgaged Property which is Eligible
Real Estate within ninety (90) days of demand by the Agent in
accordance with ss.5.3 or obtain the release of such Mortgaged
Property pursuant to ss.5.4.
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 Mortgaged
Property, or that any of the Mortgaged Property 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 Mortgaged
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 Mortgaged Property and (ii) whether the use and operation of
such Mortgaged Property comply with all Environmental Laws to the
extent required by the Loan Documents. Environmental assessments may
include detailed visual inspections of such Mortgaged Property
including, without limitation, any and all storage areas, storage
tanks, drains, dry ▇▇▇▇▇ 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 Mortgaged 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 Borrower, and
shall be conducted to the extent reasonably practicable to minimize
disruption to the conduct of business at such Mortgaged 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 Borrower 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 any Guarantor will sell,
transfer or otherwise dispose of any Mortgaged Property other than for fair
market value, and as otherwise set forth herein.
ss.8.9 DEVELOPMENT ACTIVITY. The Borrower will not engage, directly or
indirectly (including through any Affiliate in which the Borrower 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. Notwithstanding anything to the contrary contained
herein, the Borrower may engage in the development of any real properties
intended to become Mortgaged Property (the "DEVELOPMENT PROPERTY," or
collectively, "DEVELOPMENT PROPERTIES") PROVIDED THAT Borrower shall not
exceed a maximum aggregate outstanding amount of $25,000,000.00 in
contractual liability with respect to such Development Property, without
the prior written consent of the Required Lenders in their sole discretion.
Upon acquisition of any Development Property, Borrower shall grant to Agent
for the benefit of the Lenders a Mortgage therefor (the "DEVELOPMENT
MORTGAGE") and shall deliver to Agent all other required documentation
hereunder for Mortgaged Property, for each such Development Property and
Borrower shall thereafter work diligently to qualify said Development
Property as Eligible Real Estate.
ss.8.10 RESTRICTION ON PREPAYMENT OF INDEBTEDNESS. The Borrower 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 and the Hedge Obligations 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. Neither the
Borrower nor any Guarantor shall initiate or consent to any zoning
reclassification of any of its Mortgaged Property or seek any variance
under any existing zoning ordinance or use or permit the use of any
Mortgaged 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. Neither the Borrower nor any Guarantor shall
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 any Mortgaged Property.
ss.8.12 DERIVATIVE OBLIGATIONS. The Borrower 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
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. Borrower 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 Borrower make any amendments to
any organizational documents which may have a Material Adverse Effect on
the Collateral hereunder or Borrower ability to perform its Obligations
hereunder. Guarantor shall not make any amendment to its organizational
documents in any manner which would have a Material Adverse Effect on the
Collateral hereunder or on its or Borrower's ability to perform any
Obligations hereunder.
ss.9. FINANCIAL COVENANTS.
At all times, the Borrower and EPR covenant and agree that, so long as any
Obligations, Loan, Note, or Letter of Credit is outstanding or any Lender has
any obligation to make any Loans or issue any Letters of Credit, 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 BORROWING BASE. The outstanding principal balance of the Loans
including the Letters of Credit Outstanding shall at all times not be
greater than and shall at all times be in compliance with the Borrowing
Base.
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 subject Facility) that is recourse to the
Guarantor, 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.
Notwithstanding the foregoing financial tests set forth in this ss.9.8,
that certain bridge loan dated as of
in the amount of $65 million from Royal Bank of Canada
----------------
("RBC") and JPMorgan Chase ("CHASE") (the "BRIDGE LOAN") to Guarantor,
shall be deemed to be a secured recourse loan compliant with this ss. 9.8.
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.10. CLOSING CONDITIONS.
The obligation of the Lenders to establish the Facility and make the Loans
or issue Letters of Credit from time to time 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 each Guarantor a copy, certified as of
a recent date by the appropriate officer of each State in which such Person
is organized or in which the Mortgaged Properties are located and a duly
authorized officer or partner of such Person, as applicable, to be true and
complete, of the partnership agreement or corporate charter of the Borrower
and such 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 each
applicable 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 each applicable corporate 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 OPINION 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 each 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 any Guarantors.
ss.10.6 PAYMENT OF FEES. The Borrower shall have paid to the Agent the
fees payable pursuant to ss.4.2.
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 the applicable
Guarantors 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 Guarantors in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantors and its
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 ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS. The Eligible
Real Estate Qualification Documents for each Mortgaged Property included in
the Collateral as of the Closing Date shall have been delivered to the
Agent at the Borrower's expense and shall be in form and substance
satisfactory to the Agent.
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 ENDORSEMENTS TO TITLE POLICY. The Agent shall have received
Title Policies with all premiums paid thereon, evidencing good and clear
record and marketable title for each of the Mortgaged Properties as of the
Closing Date with all required endorsements issued and attached and all
standard exceptions deleted, insuring Agent's valid first priority lien on
the Mortgaged Properties subject only to Permitted Encumbrances accepted by
Agent.
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. ESTOPPELS. The Agent shall have received estoppel letters
from all Tenants whose leases exceed the Megaplex Threshold and the
Entertainment Retail Threshold, as well as from any ground lessors with
respect to the Mortgaged Properties, all in form and substance satisfactory
to Agent and consistent with the terms of the applicable Leases or Ground
Leases.
ss.10.18 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENTS. The
Agent shall have received Subordination, Non-Disturbance and Attornment
Agreements from all Tenants whose leases exceed the Megaplex Threshold and
the Entertainment Retail Threshold and ground lessors with respect to the
Mortgaged Properties, in form and substance satisfactory to Lender and
consistent with the terms of the applicable Leases or Ground Leases.
ss.10.19 CERTIFICATES OF OCCUPANCY. The Agent shall have received
copies of certificates of occupancy (certified by a financial officer of
the Borrower) covering each of the Mortgaged Properties.
ss.10.20 ENVIRONMENTAL REPORTS, ENGINEERING REPORTS, APPRAISAL REPORTS
AND STRUCTURAL REPORTS. The Agent shall have received from Borrower, a
Phase I Environmental Report (and Phase II, if recommended by the Phase I
report), engineering reports, appraisal reports and structural reports with
respect to each of the Mortgaged Properties, in form and content
satisfactory to Agent.
ss.10.21 ZONING. With respect to each Mortgaged Property, Agent shall
have received at Agent's option, either (i) (A) letters or other evidence
with respect to each of the Mortgaged Properties from the appropriate
municipal authorities (or other persons) concerning applicable zoning and
building laws, or (B) an ALTA 3.1 zoning endorsement for the applicable
title insurance policy or (ii) a zoning opinion letter, in each case, in
substance reasonably satisfactory to Agent.
ss.10.22 GUARANTY. The Agent shall have received a fully executed
Guaranty from EPR in form and substance acceptable to Lender in its sole
discretion.
ss.10.23 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 or issue any Letter of
Credit, whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
ss.11.1PRIOR 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 or any Letter of Credit is to be issued.
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 Guarantors or any of its 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 or issue such Letter of Credit.
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 or Letter of Credit 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 Advance, a fully completed Loan Request for such Loan and
the other documents and information (including, without limitation, a
Borrowing Base Certificate and a Compliance Certificate) as required by
ss.2.7, or a fully completed Letter of Credit Request required by ss.2.10
in the form of EXHIBIT I hereto fully completed, as applicable.
ss.11.7 ENDORSEMENT TO TITLE POLICY. At such times as Agent shall
determine in its discretion, to the extent available under applicable law,
a "date down" endorsement to each Title Policy indicating no change in the
state of title and containing no survey exceptions not approved by the
Agent, which endorsement shall, expressly or by virtue of a proper
"revolving credit" clause or endorsement in each Title Policy, increase the
coverage of each Title Policy to the aggregate amount of all Loans advanced
and outstanding and Letters of Credit issued and outstanding on or before
the effective date of such endorsement (provided that the amount of
coverage under an individual Title Policy for an individual Mortgaged
Property need not equal the aggregate amount of all Loans), or if such
endorsement is not available, such other evidence and assurances as the
Agent may reasonably require (which evidence may include, without
limitation, an affidavit from the Borrower stating that there have been no
changes in title from the date of the last effective date of the Title
Policy). Notwithstanding anything to the contrary contained herein, no
"date down" endorsement shall be necessary where the appropriate "revolving
credit" clause or endorsement to the Title Policy does not require the
performance of a date-down certification to ensure Lenders' priority lien
for future advances of the Loans.
ss.11.8 FUTURE ADVANCES TAX PAYMENT. As a condition precedent to any
Lender's obligations to make any Loans available to the Borrower hereunder,
the Borrower will pay to the Agent any mortgage, recording, intangible,
documentary stamp or other similar taxes and charges which the Agent
reasonably determines to be payable as a result of such Loan to any state
or any county or municipality thereof in which any of the Mortgaged
Properties are located, and deliver to the Agent such affidavits or other
information which the Agent reasonably determines to be necessary in
connection with such payment in order to insure that the Mortgages on
Mortgaged Property located in such state secure the Borrower's obligation
with respect to the Loans then being requested by the Borrower. The
provisions of this ss.11.8 shall not limit the Borrower's obligations under
other provisions of the Loan Documents, including without limitation ss.15
hereof.
ss.11.9 ISTAR AND INITIAL FACILITY. As a condition precedent to any
Lender's obligations to make any Loans available to the Borrower hereunder,
Borrower shall have minimum availability under the Borrowing Base to payoff
in full the iStar Loans and to pay down and re-advance the outstanding
amount under the Initial Facility. The iStar Loans shall be paid at the
funding of the first Advance under this Amended and Restated Agreement.
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, any
reimbursement obligations with respect to the Letters of Credit 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.7.5 (a) or ss.9.1 and, with respect tO ss.9.1, such
failure shall continue to exist after written notice thereof shall
have been given to the Borrower by the Agent and the cure period
provided in ss.12.2 shall have ended;
(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 Guarantors, or any of its
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 its Subsidiaries in this Agreement
or any other Loan Document, or any report, certificate, financial
statement, request for a Loan, Letter of Credit Request or in any
other document or instrument delivered pursuant to or in connection
with this Agreement, any advance of a Loan, the issuance of any Letter
of Credit or any of the other Loan Documents other than constituting
or based upon Third Party Information on which Borrower, Guarantor or
any of its 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 Guarantors, or any of its
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 Guarantors, or any of its
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 Guarantors, or any of its 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 Guarantors, or any
of its 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 Guarantors, or any of its 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
Guarantors, 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 any of the
Borrower or any 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 any of the Borrower or any 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 Guarantors or any of its 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, any Guarantor or any of its 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, any Guarantor or any of its Subsidiaries which in
the good faith judgment of the Required Lenders could have a Material
Adverse Effect, or (ii) the Collateral;
(q) any 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 such 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; or
(s) an event of default, however defined, under any of the other
Loan Documents shall occur;
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
Facility and/or declare all amounts owing with respect to this Agreement,
the Notes, the Letters of Credit 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), 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. Upon demand by Agent or the
Required Lenders in their absolute and sole discretion after the occurrence
of an Event of Default, and regardless of whether the conditions precedent
in this Agreement for a Revolving Credit Loan have been satisfied, the
Lenders will cause a Revolving Credit Loan to be made in the undrawn amount
of all Letters of Credit. The proceeds of any such Revolving Credit Loan
will be pledged to and held by Agent as security for any amounts that
become payable under the Letters of Credit and all other Obligations. In
the alternative, if demanded by Agent in its absolute and sole discretion
after the occurrence of an Event of Default, Borrower will deposit with and
pledge to Agent cash in an amount equal to the amount of all undrawn
Letters of Credit. Such amounts will be pledged to and held by Agent for
the benefit of the Lenders as security for any amounts that become payable
under the Letters of Credit and all other Obligations. Upon any draws under
Letters of Credit, at Agent's sole discretion, Agent may apply any such
amounts to the repayment of amounts drawn thereunder and upon the
expiration of the Letters of Credit any remaining amounts will be applied
to the payment of all other Obligations or if there are no outstanding
Obligations and Lenders have no further obligation to make Revolving Credit
Loans or issue Letters of Credit or if such excess no longer exists, such
proceeds deposited by Borrower will be released to Borrower. If at any time
the aggregate amount of funds pledged to Agent as collateral for such
Letters of Credit shall exceed one hundred percent (100%) of the aggregate
face amount of all amounts available to be drawn under such Letters of
Credit (including any amounts that may be reinstated thereunder), Agent
shall release the amount of such excess deposited by the Borrower to the
Borrower.
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 LIMITATION OF CURE PERIODS.
(a) In the event that there shall occur any Default under
ss.12.1(c), then within five (5) Business Days after receipt of notice
of such Default from the Agent or the Required Lenders,
the Borrower or any Additional Guarantor may elect to cure such
Default by providing additional Collateral consisting of Potential
Collateral, and/or to reduce the outstanding Loans to it, in which
event such actions shall be completed within such five (5) Business
Day period (or within thirty (30) days following the expiration of the
initial five (5) Business Day period in the event that the Borrower
intends to provide additional Mortgaged Property). The Borrower's
notice of its election pursuant to the preceding sentence shall be
delivered to the Agent within the period of five (5) Business Days
provided above, and if not so delivered Borrower's cure period shall
immediately terminate and such Default shall become an Event of
Default. In the event that Borrower elects to add additional Mortgaged
Property and fails within the time provided herein, the cure period
shall terminate and such Default immediately shall constitute an Event
of Default. In the event that the Borrower shall elect under
ss.12.2(a) to provide additional Collateral consisting of Potential
Collateral, the Real Estate to be added to the Collateral shall be
Eligible Real Estate and on or prior to the expiration of the thirty
(30) day period referred to above each of the Eligible Real Estate
Qualification Documents shall have been completed at the Borrower's
expense and provided to the Agent for the benefit of the Lenders and
all other conditions to the acceptance of such Real Estate as a
Mortgaged Property shall have been satisfied.
(b) In the event that there shall occur any Default that affects
only certain Mortgaged Property or the owner(s) thereof (if such owner
is a Guarantor), then within five (5) Business Days after receipt of
notice of such Default from the Agent or the Required Lenders, the
Borrower may elect to cure such Default by electing to remove such
Mortgaged Property from the Borrowing Base and reduce the outstanding
Loans OR by substituting for such Mortgaged Property additional
Collateral consisting of Potential Collateral for the Collateral to
which such Default relates (PROVIDED THAT the value of such Collateral
Replacement is such that after acceptance thereof, the Borrower is in
compliance with the Borrowing Base requirements), in which event such
actions shall be completed within five (5) Business Days following the
expiration of the initial five (5) Business Day period (or within
thirty (30) days following the expiration of the initial five (5)
Business Day period in the event that the Borrower intends to provide
additional or substitute Mortgaged Property). The Borrower's notice of
its election pursuant to the preceding sentence shall be delivered to
the Agent within the period of five (5) Business Days provided above,
and if not so delivered Borrower's cure period shall immediately
terminate and such Default shall become an Event of Default. In the
event that Borrower elects to add additional or substitute Mortgaged
Property and fails within the time provided herein, the cure period
shall terminate and such Default immediately shall constitute an Event
of Default. In the event that the Borrower shall elect to cure any
Default in any covenant contained in ss.9.2 through ss.9.9, by
providing additional Collateral consisting of PotentiaL Collateral,
the Real Estate to be added to the Collateral shall be Eligible Real
Estate and on or prior to the expiration of the thirty (30) day period
referred to above each of the Eligible Real Estate Qualification
Documents shall have been completed at the Borrower's expense and
provided to the Agent for the benefit of the Lenders and all other
conditions in this Agreement to the acceptance of such Real Estate as
a Mortgaged Property shall have been satisfied.
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 or issue Letters of
Credit 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 or issue any Letters of Credit. 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 any 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
of the Security Documents, or otherwise with respect to the realization
upon any of the Collateral or other assets of Borrower or the Guarantors,
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
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 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) distributions in respect of such other
Obligations shall include, on a PARI PASSU basis, the Agent's fee
payable pursuant to ss.4.3; (iii) in the event that any Lender shall
have wrongfully failed or refused to make an advance under ss.2.5(d),
ss.2.7 or ss.2.10(f) 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 (iv) except as otherwise provided in clause (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, to termination payments due with respect to the Hedge
Obligations; and
(d) Fourth, 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 Guarantors and any securities or
other property of the Borrower or the Guarantors 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 Guarantors to such Lender. Each of the Lenders agrees with each other
Lender that if such Lender shall receive from the Borrower or the
Guarantors, whether by voluntary payment, exercise of the right of setoff,
or otherwise, and shall retain and apply 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 Percentage 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 Guarantors or any of
its 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 Guarantors 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
Guarantors, or any of its Subsidiaries, or the value of the Collateral or
any other assets of the Borrower or the Guarantors. 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 any 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 Guarantors, 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, Fleet 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
▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 $10,000,000.00, 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 the Security Documents authorizing the sale or other
disposition of all or any part of the 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 REQUEST FOR AGENT ACTION. Agent and the Lenders acknowledge
that in the ordinary course of business of the Borrower, (a) Borrower and
Guarantors will enter into leases or rental agreements covering Mortgaged
Properties that may require the execution of a Subordination, Attornment
and Non-Disturbance Agreement in favor of the tenant thereunder, (b) a
Mortgaged Property may be subject to a Taking, (c) Borrower or a Guarantor
may desire to enter into easements or other agreements affecting the
Mortgaged Properties, or take other actions or enter into other agreements
in the ordinary course of business which similarly require the consent,
approval or agreement of the Agent. In connection with the foregoing, the
Lenders hereby expressly authorize the Agent to (w) execute and deliver to
the Borrower and the Guarantors Subordination, Attornment and
Non-Disturbance Agreements with any tenant under a Lease upon such terms as
Agent in its good faith judgment determines are appropriate and consistent
with the provisions of the applicable Lease to control over the applicable
provisions of the Loan Documents, (x) execute releases of liens in
connection with any Taking, (y) execute consents or subordinations in form
and substance satisfactory to Agent, consistent with the provisions of the
applicable Leases in connection with any easements or agreements affecting
the Mortgaged Property, or (z) execute consents, approvals, or other
agreements in form and substance satisfactory to the Agent in connection
with such other actions or agreements as may be necessary in the ordinary
course of Borrower's business.
ss.14.12 INTENTIONALLY DELETED..
ss.14.13 REPLACEMENT OF HOLDOUT LENDER. If 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.
In the event that no new Lender is located to purchase the Holdout
Lender's Commitment, then Borrower shall have the option after receipt of
written notice from Agent to Borrower that no new Lender has been obtained,
to terminate the Commitment of the Holdout Lender. 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 Mortgaged Property or
other Collateral is located, such indemnification to be limited to taxes DUE
SOLELY on account of the granting of Collateral under the Security Documents 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 additional Mortgaged
Properties or other 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 Guarantors 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 Guarantors, unless brought by Borrower or any 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 Fleet
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 Mortgaged Properties or the Loans, (b) any condition
of the Mortgaged Properties, (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 ▇▇▇▇ or similar right of the
Borrower, the Guarantors, or any of its Subsidiaries comprised in the
Collateral, (e) the Borrower and the Guarantors 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 Mortgaged Property, or
(g) with respect to the Borrower, the Guarantors and its 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 any Guarantor may have at any time against
Agent and/or Lender whether in connection with the Facility 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 Guarantors or any of its
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 Guarantors or any of its
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 its
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
Guarantors, 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 any 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. No Borrower or Guarantor shall
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 Borrower and EPR and agrees to keep any information delivered or
made available by the Borrower 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 Guarantors 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 Fleet:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Structured Real Estate Division
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower:
30 West Pershing, LLC
c/o Entertainment Properties Trust
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Vice President and General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
30 West Pershing, LLC
c/o Entertainment Properties Trust
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, CFO
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Guarantor:
Entertainment Properties Trust
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Vice President and General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Entertainment Properties Trust
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, CFO
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 Guarantors or its 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 COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). 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 Guarantors and its 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 Guarantors
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 any 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, ss.5.4, ss.5.5 or ss.14.11;
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.2.10 and ss.14 may not be amended without the
written consent of the Issuing Lender or the Agent, respectively. 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 Guarantors shall entitle the Borrower or any 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 Guarantors 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 BENEFITTED.
This Agreement and the other Loan Documents are made and entered into for
the sole protection and legal benefit of the Borrower, 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. HONORARY TITLES.
Royal Bank of Canada and JPMorgan Chase Bank are appointed, respectively,
as Syndication Agent and Documentation Agent, and each in such respective
capacity, assumes no responsibility or obligation hereunder, including, without
limitation, for servicing, enforcement or collection of any of the Loans, nor
any duties as an agent hereunder for the Lenders. The titles of "Syndication
Agent" and "Documentation Agent" are solely honorific and imply no fiduciary
responsibility to the Agent, the Borrower or any Lender and the use of such
titles does not impose on the Syndication Agent and the Documentation Agent any
duties or obligations greater than those of any other Lender or entitle the
Syndication Agent and the Documentation Agent to any rights other than those to
which any other Lender is entitled.
SS.36 HIALEAH ELIGIBLE PROPERTY.
Notwithstanding anything to the contrary contained herein, until such time
as Hialeah has contributed Eligible Property as Mortgaged Property under this
Agreement, the Lenders hereby agree not to hold Hialeah liable for any
liabilities or Obligations of the Borrower hereunder or under any of the Loan
Documents, PROVIDED however, that upon contribution of any such Mortgaged
Property by Hialeah, said agreement of the Lenders under this ss.36 not to hold
Hialeah liable for any liabilities or Obligations of the Borrower hereunder or
under thE Loan Documents shall be immediately null and void and Hialeah shall be
liable for all of said liabilities and Obligations hereunder and under the Loan
Documents without the need for execution of any additional documents, amendments
or modifications of this Agreement or any Loan Documents.
[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:
30 WEST PERSHING, LLC, a Missouri limited
liability company
By: /s/ ▇▇▇▇ ▇.▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EPR HIALEAH, INC. a Missouri corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WESTCOL CENTER, LLC, a Delaware limited
liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GUARANTOR:
ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LENDERS:
FLEET NATIONAL BANK, individually Loan Amount: $35,500,000.00
as a Lender and as Agent Percentage: 23.67%
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
ROYAL BANK OF CANADA, Loan Amount: $25,000,000.00
as a Lender Percentage: 16.67%
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
JPMORGAN CHASE BANK, Loan Amount: $25,000,000.00
as a Lender Percentage: 16.67%
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
SOVEREIGN BANK, Loan Amount: $14,500,000.00
as a Lender Percentage: 9.67%
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
BANK MIDWEST, N.A., Loan Amount: $10,000,000.00
as a Lender Percentage: 6.67%
By: /s/ ▇▇▇▇▇▇▇ ▇. Day
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Day
Title: Sr. Executive Vice President
FIRST NATIONAL BANK OF KANSAS, Loan Amount: $10,000,000.00
as a Lender Percentage: 6.67%
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
MIDFIRST BANK Loan Amount: $10,000,000.00
as a Lender Percentage: 6.67%
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
UMB BANK, N.A., Loan Amount: $10,000,000.00
as a Lender Percentage: 6.67%
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK, Loan Amount: $10,000,000.00
as a Lender Percentage: 6.67%
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
EXHIBIT B
REVOLVING CREDIT NOTE
$ .00 March , 2004
------------- --
FOR VALUE RECEIVED, the undersigned, 30 WEST PERSHING, LLC, a Missouri
limited liability company, WESTCOL CENTER, LLC, a Delaware limited liability
company, and EPR HIALEAH, INC., a Missouri corporation (severally, a "BORROWER"
and collectively, the "BORROWERS"), each with an address at c/o Entertainment
Properties Trust, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, jointly
and severally hereby promises to pay to the order of
-----------------------
("PAYEE") at the office of FLEET NATIONAL BANK, a national banking association,
as Agent for the Lenders ("AGENT"), in accordance with the terms of that certain
Amended and Restated Master Credit Agreement, dated as of March __, 2004, as
from time to time in effect, among Borrowers, Fleet National Bank, for itself
and as Agent, and such other Lenders as may be from time to time named therein,
and Entertainment Properties Trust, a real estate investment trust organized
under the laws of the State of Maryland, as guarantor (the "CREDIT 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 Credit Agreement as a Revolving Credit Loan with
daily interest from the date thereof, computed as provided in the Credit
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
Credit 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 Credit Agreement. Interest shall be payable
on the dates specified in the Credit 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 Credit Agreement.
Payments hereunder shall be made to the Agent for the Payee at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This Note is one of one or more Revolving Credit Notes evidencing
borrowings under and is entitled to the benefits and subject to the provisions
of the Credit 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 Credit
Agreement, and may be prepaid in whole or from time to time in part, all as set
forth in the Credit Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Borrowers 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 Borrowers or, if
such excessive interest exceeds the unpaid balance of principal of the
Obligations of the undersigned Borrowers, such excess shall be refunded to the
undersigned Borrowers. 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 Borrowers (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 Borrowers 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 said Credit Agreement.
This Note shall be governed by and construed in accordance with the laws of
the State of New York (without giving effect to the conflict of laws rules of
any jurisdiction).
The undersigned Borrowers 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 Credit 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.
30 WEST PERSHING, LLC
a Missouri limited liability company
--------------------------
Witness: By:
----------------------------------
Name:
Title:
EPR HIALEAH, INC.
a Missouri corporation
--------------------------
Witness: By:
----------------------------------
Name:
Title:
WESTCOL CENTER, LLC
a Delaware limited liability company
--------------------------
Witness: By:
----------------------------------
Name:
Title:
EXHIBIT E
FORM OF UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FLEET NATIONAL BANK
UNLIMITED GUARANTY
WHEREAS, 30 WEST PERSHING, LLC, a Missouri limited liability company
("PERSHING"), EPR HIALEAH, INC., a Missouri corporation ("HIALEAH"), and WESTCOL
CENTER, LLC, a Delaware limited liability company ("WESTCOL") (jointly,
severally, individually and collectively, Pershing, Hialeah and Westcol are
referred to herein as the "BORROWER"), has this day entered into an Amended and
Restated Master Credit Agreement (as amended or otherwise modified from time to
time, the "CREDIT AGREEMENT") with FLEET NATIONAL BANK, a national banking
institution having a place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, individually and as administrative and collateral agent (the
"AGENT") for itself and the Lenders under the Credit Agreement (individually and
collectively, the "BANK") in connection with a credit facility in the total
aggregate principal amount of One Hundred Fifty Million and 00/100
($150,000,000.00) (the "LOAN").
WHEREAS, the undersigned, Entertainment Properties Trust, a real estate
investment trust duly organized under the laws of the State of Maryland (the
"GUARANTOR"), owns the controlling voting interest of the Pershing and Hialeah.
WHEREAS, the Guarantor will derive substantial direct and indirect benefit
from the transactions contemplated by the Credit 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 Credit Agreement.
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meaning specified in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Bank to enter into the Credit 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 Credit 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 Credit 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 Credit
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.
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 agremenet 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 Credit Agreement, the terms of the Credit
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.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as a sealed
instrument as of the day of , 2004.
------ --------
Witnessed: ENTERTAINMENT PROPERTIES TRUST
--------------------------
By:
----------------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT H
FORM OF REQUEST FOR REVOLVING CREDIT LOAN
Fleet National Bank, as Agent
--------------------------
--------------------------
--------------------------
Attn:
---------------------
Ladies and Gentlemen:
Pursuant to the provisions of ss.2.7 of the Amended and Restated Master
Revolving Credit Agreement dateD as of March , 2004 (as the same may
---
hereafter be amended, the "Credit Agreement"), among WESTCOL CENTER, LLC, 30
WEST PERSHING, LLC AND EPR HIALEAH, INC. (collectively, the "Borrower"), Fleet
National Bank for itself and as Agent, and the other Lenders from time to time
party thereto, the undersigned Borrower hereby requests and certifies as
follows:
1. REVOLVING CREDIT LOAN. The undersigned Borrower hereby requests a
[REVOLVING CREDIT LOAN UNDER SS.2.2] of the Credit Agreement:
Principal Amount: $
Type (LIBOR Rate, Base Rate):
Drawdown Date:
Interest Period for LIBOR Rate Loans:
by credit to the general account of the Borrower with the Agent at the Agent's
Head Office.
2. USE OF PROCEEDS. Such Loan shall be used for the following purposes
permitted by ss.2.9 of thE Credit Agreement:
[DESCRIBE]
3. NO DEFAULT. The undersigned chief financial officer or chief accounting
officer of Borrower certifies that the Borrower and the Guarantors 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 Mortgaged
Property.
4. REPRESENTATIONS TRUE. Each of the representations and warranties made by
or on behalf of the Borrower, the Guarantors or its Subsidiaries, contained in
the Credit Agreement, in the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with the Credit 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. BORROWING BASE. Attached hereto is an updated Borrowing Base Certificate
in the form provided for under the Credit Agreement.
6. OTHER CONDITIONS. All other conditions to the making of the Loan
requested hereby set forth in the Credit Agreement have been satisfied.
7. DEFINITIONS. Terms defined in the Credit Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, the undersigned has duly executed this request this
day of , 200 .
----- --------------- -
30 WEST PERSHING, LLC,
a Missouri limited liability company
By:
-------------------------------
Name:
Title:
WESTCOL CENTER, LLC,
a Delaware limited liability company
By:
-------------------------------
Name:
Title:
EPR HIALEAH, INC.
a Missouri corporation
By:
-------------------------------
Name:
Title:
EXHIBIT I
LETTER OF CREDIT REQUEST
EXHIBIT J
FORM OF BORROWING BASE CERTIFICATE
Date: , 20 .
---------- --
Fleet National Bank, as Agent
------------------------------
------------------------------
------------------------------
Attn:
-----------------------
Ladies and Gentlemen:
This Certificate is furnished pursuant to Section 7.4(c) of the Amended and
Restated Master Credit Agreement dated as of March __, 2004, as it may be
amended from time to time (the "CREDIT AGREEMENT") by and among 30 WEST
PERSHING, LLC, a limited liability company duly organized and validly existing
under the laws of the State of Missouri ("PERSHING"), EPR HIALEAH, INC., a
corporation duly organized and validly existing under the laws of the State of
Missouri ("HIALEAH") and WESTCOL CENTER, LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware
("WESTCOL") (individually and collectively, jointly and severally, Pershing,
Hialeah and Westcol are referred to as the "BORROWER"), and ENTERTAINMENT
PROPERTIES TRUST, a real estate investment trust duly organized and validly
existing under the laws of the State of Maryland ("EPR" and/or "GUARANTOR")
having its principal place of business at c/o Entertainment Properties Trust, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, FLEET NATIONAL BANK ("FLEET"),
the other lending institutions which are or may become parties to this Agreement
as "LENDERS" (each, individually, a "LENDER"), pursuant to ss.18 (together with
Fleet, the "LENDERS"), and FLEET NATIONAL BANK, as Agent for the Lenders (the
"AGENT").
Unless otherwise defined herein, the terms used in this Certificate have the
meanings given to them in the Credit Agreement. I am duly authorized to deliver
this Certificate and the attached Schedule on behalf of the Borrower and hereby
certify that the calculations made on said Schedule are correct and accurate as
of 20 , and that as of the date hereof, and after giving effect
------------- --
to the pending Loan or the issuance of any pending Letter of Credit, there
exists and shall not exist any violation of the Borrowing Base covenants as set
forth in the Credit Agreement and that Borrower is in compliance therewith.
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 Borrowing Base
Certificate this day of , 200 .
----- -------------- --
30 WEST PERSHING, LLC,
a Missouri limited liability company
By:
----------------------------------
Name:
Title:
WESTCOL CENTER, LLC,
a Delaware limited liability company
By:
----------------------------------
Name:
Title:
EPR HIALEAH, INC.
a Missouri corporation
By:
----------------------------------
Name:
Title:
EXHIBIT K
FORM OF COMPLIANCE CERTIFICATE
Fleet National Bank, as Agent
------------------------------
------------------------------
------------------------------
Attn:
-----------------------
Ladies and Gentlemen:
Reference is made to the Amended and Restated Master Revolving Credit
Agreement dated as of March , 2004 (as the same may hereafter be amended, the
---
"CREDIT AGREEMENT") by and among WESTCOL CENTER, LLC, 30 WEST PERSHING, LLC AND
EPR HIALEAH, INC. (collectively, the "BORROWER"), and ENTERTAINMENT PROPERTIES
TRUST, as Guarantor, Fleet National Bank for itself and as Agent, and the other
Lenders from time to time party thereto. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein as defined in the Credit
Agreement.
Pursuant to the Credit Agreement, Borrower and Guarantor are furnishing to
you herewith (or have most recently furnished to you) the consolidated financial
statement of Borrower, Guarantor and its 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 its 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 (including the attached schedule) is submitted in
compliance with requirements of ss.5.4(b), ss.7. 4(c), ss.7. 5(e), Article 9 or
ss.10.12 of the Credit 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 .
----- -------------- --
30 WEST PERSHING, LLC,
a Missouri limited liability company
By:
---------------------------------
Name:
Title:
WESTCOL CENTER, LLC,
a Delaware limited liability company
By:
---------------------------------
Name:
Title:
EPR HIALEAH, INC.
a Missouri corporation
By:
---------------------------------
Name:
Title:
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 Amended and Restated Master Credit
Agreement dated as of March , 2004, (as the same may be amended or modified
---
from time to time, the "CREDIT AGREEMENT"), among 30 West Pershing, LLC, EPR
Hialeah, Inc., and Westcol Center, LLC (each, jointly and severally, a
"BORROWER"; collectively, the "BORROWERS"), Entertainment Properties Trust, as
guarantor thereunder, the financial institutions party thereto, as lenders and
Fleet National Bank, for itself and as agent for the Lenders (in such capacity,
the "AGENT"). Terms defined in the Credit 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 Credit
Agreement, including, without limitation, the interests set forth below in the
Commitments of the Assignor on the effective date and the Loans including any
Letters of Credit owing to the Assignor which are outstanding on the effective
date, together with unpaid interest accrued on the assigned Loans or Letters of
Credit 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 Credit 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
Credit 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 Credit 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
Credit Agreement, an Administrative Questionnaire in the form of Exhibit L-1 to
the Credit 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 Assignee
----------------------------
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
EXHIBIT L-1
FORM OF ADMNISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via FAX to the
attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Director, Structured Real Estate, Fleet
National Bank, as soon as possible.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
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 WITHHOLDRNG:
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 (▇▇▇) ▇▇▇-▇▇▇▇.
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
Fleet National Bank $35,500,000.00 23.33%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Structured Real Estate
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Royal Bank of Canada $25,000,000.00 16.67%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
JPMorgan Chase Bank $25,000,000.00 16.67%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sovereign Bank $14,500,000.00 9.67%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
MidFirst Bank $10,000,000.00 6.67%
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank Midwest, N.A. $10,000,000.00 6.67%
▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
UMB Bank, N.A. $10,000,000.00 6.67%
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
First National Bank of Kansas $10,000,000.00 6.67%
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet National Bank $10,000,000.00 6.67%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Structured Real Estate
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 3
ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS
With respect to any parcel of Real Estate of the Borrower or a Guarantor
proposed to be included in the 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 Borrower or such 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
Borrower or such 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 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 Borrower or 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 Borrower or
such Guarantor in connection with future leasing of such Mortgaged 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 Borrower 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 Collateral, each such estoppel certificate to be in form and
substance reasonably satisfactory to the Agent, provided, however, that Borrower
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 such 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 such 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 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 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 GUARANTORS
SCHEDULE 6.21(B)
AFFILIATES OF THE BORROWER, THE GUARANTORS AND THEIR SUBSIDIARIES
SCHEDULE 6.22
MONETARY DEFAULTS UNDER LEASES
SCHEDULE 6.25
MATERIAL LOAN AGREEMENTS
TABLE OF CONTENTS
Page
EXHIBITS AND SCHEDULES
Exhibit A Intentionally Deleted.
Exhibit B FORM OF REVOLVING CREDIT NOTE
Exhibit E FORM OF UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
Exhibit H FORM OF REQUEST FOR REVOLVING CREDIT LOAN
Exhibit I LETTER OF CREDIT REQUEST
Exhibit J FORM OF BORROWING BASE CERTIFICATE
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 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 GUARANTORS
Schedule 6.21(b) AFFILIATES OF THE BORROWER THE GUARANTORS AND THEIR
SUBSIDIARIES
Schedule 6.22 MONETARY DEFAULTS UNDER LEASES
Schedule 6.25 MATERIAL LOAN AGREEMENTS