KEYBANK NATIONAL ASSOCATION, as Agent LIMITED GUARANTY
Exhibit 4.6
KEYBANK NATIONAL ASSOCATION, as Agent
To: KeyBank National Association, as Agent
Ladies and Gentlemen:
In consideration of KeyBank National Assocation, as Agent for the Lenders (“Agent”)
in accordance with the terms of that certain Amended and Restated Master Credit Agreement dated as
of June 30, 2009 (the “Credit Agreement”), as from time to time in effect among
Entertainment Properties Trust, a real estate investment trust organized under the laws of the
State of Maryland,30 West Pershing, LLC, a Missouri limited liability company, EPT DownREIT II,
Inc., a Missouri corporation, EPT Huntsville, Inc., a Delaware corporation, EPT Pensacola, Inc., a
Missouri corporation, Megaplex Four, Inc., a Missouri corporation, Westcol Center, LLC, a Delaware
limited liability company and EPT Melbourne, Inc., a Missouri corporation (severally, a
“Borrower” and collectively, the “Borrowers”), having made or making, now or in the
future, loans, advances, or otherwise giving credit to the Borrowers the undersigned, Theatre Sub,
Inc., a Missouri corporation (the “Guarantor”), hereby, jointly and severally, absolutely
and unconditionally guarantee to you full and prompt payment and performance of any and all
Liabilities owed to you by the Borrowers in connection with the Facility (as such term is defined
in the Credit Agreement. As used herein, “Liabilities” means any and all indebtedness,
obligations and liabilities of the Borrowers to you of every kind and description, whether or not
contemplated on the date of this Limited Guaranty, direct or indirect, primary or secondary,
absolute or contingent, due or to become due, now existing or hereafter arising, regardless of how
they arise or by what agreement or instrument they may be evidenced or whether evidenced by any
agreement or instrument and irrespective of the validity or enforceability of any instrument,
writing or arrangement relating to any of the Liabilities and including, but not limited to, all
obligations of the Borrowers under those certain Promissory Notes of even date from the Borrowers
to each of the Lenders in the original aggregate principal amount of Two Hundred Fifteen Million
and 00/100 Dollars ($215,000,000.00) (collectively, the “Notes”). The undersigned further
agrees to pay all costs and expenses, including attorney’s fees and all allocated costs of internal
counsel, costs relating to the appraisal and/or valuation of Borrowers’ or the undersigned’s assets
and all other costs and expenses arising out of, or with respect to, the validity, enforceability,
collection, defense or preservation of this Limited Guaranty and the collateral therefor.
Guarantor will derive substantial direct and indirect benefit from the transactions
contemplated by the Loans, and it is a condition precedent to Lender’s obligations to make the
Loans that Guarantor execute and deliver this Guaranty.
Capitalized terms not otherwise defined in this Limited Guaranty shall have the meanings
ascribed to them in the Credit Agreement.
If, for any reason, the Liabilities are unenforceable against the Borrowers, this Limited
Guaranty shall nevertheless be binding on the Guarantor to the same extent as if the Guarantor
had
been the principal obligor of such Liability. The undersigned further guarantee that all payments
made by the Borrowers to Agent with respect to any Liabilities hereby guaranteed will, when made,
be final and agrees that if any such payment is recovered from, or repaid by, Agent in whole or in
part in any bankruptcy, insolvency or similar proceeding instituted by or against the Borrowers,
this Limited Guaranty shall continue to be fully applicable to such Liabilities to the same extent
as though the payment so recovered or repaid had never been originally made on such Liabilities.
The undersigned hereby waives presentment, demand, notice, and protest with respect to the
Liabilities or this Limited Guaranty, and further waives any delay on the part of the Lenders, and
further waives any right to require the Lenders to pursue or to proceed against the Borrowers or
any collateral which the Lenders might have been granted to secure the obligations of the
undersigned hereunder, and further waives notice of acceptance of this Guaranty. The undersigned
specifically waives notice of any disposition of any collateral after default or demand, as
applicable, and the undersigned shall remain liable on the Liabilities, notwithstanding any claim
that the disposition of any collateral was not commercially reasonable. The undersigned hereby
waives any claim, right or remedy which the undersigned may now have or hereafter acquire against
the Borrowers or any of its assets or property that arises hereunder or from the performance by the
undersigned hereunder, including without limitation, any claim, right or remedy of subrogation,
reimbursement, exoneration, contribution, indemnification or participation in any claim, right or
remedy that Agent or the Lenders may have against the Borrowers or any collateral for the
liabilities which the Lenders now have or hereafter acquire, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or otherwise.
Upon any failure by the Borrowers in the payment or in the performance of any Liability, the
obligation of the undersigned shall, at Agent’s option, be effective immediately and be due and
payable without demand or notice of any nature and without any suit or action against the
Borrowers. No delay or omission on Agent’s part in exercising any right hereunder shall operate as
a waiver of such right or any other right; a waiver on one occasion shall not be a bar to or waiver
of any right on any other occasion.
THE LIABILITY OF THE UNDERSIGNED WITH RESPECT TO ANY LIABILITY SHALL NOT BE TERMINATED BY, AND
THE UNDERSIGNED ASSENT TO, ANY EXTENSION, RENEWAL OR POSTPONEMENT OF THE TIME OF PAYMENT OR ANY
OTHER INDULGENCE, ANY MODIFICATION, WAIVER OR AMENDMENT OF THE TERMS OF ANY AGREEMENT RELATING TO
THE LIABILITIES, AND SUBSTITUTION, EXCHANGE OR RELEASE OF COLLATERAL, THE ADDITION OR RELEASE OF
ANY PARTY PRIMARILY OR SECONDARILY LIABLE, INCLUDING ANY OTHER PERSON OR ENTITY WHO GUARANTEES ANY
OF THE PRESENT OR FUTURE LIABILITIES AND THE VARIANCE OR WAIVER OF ANY TERM EVIDENCING A LIABILITY,
WHETHER OR NOT NOTICE THEREOF IS GIVEN TO THE UNDERSIGNED OR THE UNDERSIGNEDS’ CONSENT IS OBTAINED.
AGENT SHALL HAVE NO DUTY TO
TAKE, TO COLLECT, OR TO PROTECT ANY COLLATERAL OR ANY INCOME THEREON, NOR TO PRESERVE ANY RIGHTS
AGAINST OTHER PARTIES. THIS IS A GUARANTY OF PAYMENT AND NOT OF COLLECTION AND AGENT MAY PROCEED
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UNDER THIS LIMITED GUARANTY IMMEDIATELY UPON BORROWERS’ DEFAULT FAILURE TO PAY OR PERFORM WITHOUT
RESORTING TO OR REGARD TO ANY COLLATERAL OR ANY OTHER GUARANTY OR SOURCE OF PAYMENT.
The release or discharge in whole or in part or the death, bankruptcy, liquidation or
dissolution of any other person or entity who guarantees any of the present or future Liabilities
shall not release, discharge or affect the liabilities or obligations of the undersigned under this
Limited Guaranty.
The undersigned hereby gives Agent a lien and right of set off for all of undersigneds’
liabilities and obligations upon and against all the deposits, credits, collateral and property of
the undersigned, now or hereafter in the possession, custody, safekeeping or control of you or in
transit to you. At any time, without demand or notice, Agent may set off the same or any part
thereof and apply the same to any liability or obligation of the undersigned even though unmatured.
The undersigned acknowledge that the underlying transaction to which this Limited Guaranty
relates concerns Lenders’ having made or making, now or in the future, at your option, loans and
advances, or otherwise giving credit to the Borrowers. The undersigned further acknowledge that it
will materially and directly or indirectly, receive financial benefit from said underlying
transactions.
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 Lenders, 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 the 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 Lenders may be put in as good a position
as if the Borrowers had promptly, punctually, and faithfully performed all Liabilities and the
undersigned had promptly, punctually, and faithfully performed hereunder.
THE UNDERSIGNED (1) ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS LIMITED GUARANTY IS A PART
IS A COMMERCIAL TRANSACTION AND (2) TO THE EXTENT PERMITTED BY ANY STATE OR FEDERAL LAW, WAIVE THE
RIGHT THEY MAY HAVE TO PRIOR NOTICE OF AND A HEARING ON THE RIGHT OF YOU OR YOUR SUCCESSORS AND
ASSIGNS TO ANY REMEDY OR COMBINATION OF REMEDIES THAT ENABLES YOU OR YOUR SUCCESSORS OR ASSIGNS, BY
WAY OF ATTACHMENT, FOREIGN ATTACHMENT, GARNISHMENT OR REPLEVIN, TO
DEPRIVE THE UNDERSIGNED OF ANY OF ITS PROPERTY, AT ANY TIME, PRIOR TO FINAL JUDGMENT IN ANY
LITIGATION INSTITUTED IN CONNECTION WITH THIS LIMITED GUARANTY.
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THE UNDERSIGNED AND YOU IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING
HEREAFTER INSTITUTED BY OR AGAINST THE UNDERSIGNED OR YOU IN RESPECT OF THIS LIMITED GUARANTY OR
ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS LIMITED
GUARANTY OR THE LIABILITIES GUARANTEED BY THIS LIMITED GUARANTY.
No provision of this Limited Guaranty can be changed, waived or discharged except by an
instrument in writing signed by you and the undersigned expressly referring to the provision of the
Limited Guaranty to which such instrument relates and no such waiver shall extend to, affect or
impair any right with respect to any liability or obligation which is not expressly dealt with
therein.
This Limited Guaranty shall inure to the benefit of you, your successors and assigns, and it
shall be binding upon the undersigned, its legal representatives, heirs, successors and assigns.
This writing is intended by the parties as the final, complete and exclusive statement of the
terms of this Limited Guaranty. No course of dealing between the parties, no usage of the trade
and no parol or extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Limited Guaranty shall to any
extent be held invalid or unenforceable, then only such provision shall be deemed ineffective and
the remainder of this Limited Guaranty shall not be affected.
If for any reason any of the Liabilities of the Borrowers have been discharged or have
become irrecoverable from the Borrowers by operation of law or for any other reason, the
liabilities of the undersigned under this Limited Guaranty shall nevertheless remain in full
force and effect notwithstanding such discharge or irrecoverability.
Except as otherwise permitted under the Credit Agreement, the undersigned will not make or
permit to be made, by voluntary or involuntary means, any transfer or encumbrance of any of its
direct or indirect interests in any Borrowers, or any dilution of its direct or indirect interests
in any Borrowers, except the undersigned may, for estate planning purposes, transfer any of the
undersigneds’ direct interests in any Borrowers. In no event shall any transfer of interest
permitted under the Credit Agreement affect the liability of the undersigned hereunder.
Except as otherwise specifically provided for herein, any notice, demand or communication
hereunder shall be given in writing (including facsimile transmission or telex) and mailed or
delivered to each party at its address or telecopier number set forth below, or, as to each party,
at such other address or telecopier number as shall be designated by such party by a prior notice
to the other party in accordance with the terms of this provision. Any notices hereunder shall be
sent as follows:
if to the Agent, to
KeyBank National Association
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
0
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: KeyBank Institutional Real Estate,
Fax No. (000) 000-0000
Attention: KeyBank Institutional Real Estate,
Fax No. (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
Any notice to the the undersigned shall be sent as follows:
| Attention: | Xxxx X. Xxxxxxxx, Vice President and CFO; and Xxxxxxx X. Xxxxxxx, Esq. Vice President and General Counsel Fax No. (000) 000-0000 |
With a copy to:
Xxxxxxx Xxxxxxxx Xxxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
| Attn: | Xxxx Xxxxxxxx, Esq. and Xxxx X. Xxxxxxx, Esq. Fax No. (000) 000-0000 |
All notices hereunder shall be deemed effective when actually received by the addressee (or if
the addressee shall refuse acceptance of delivery, upon such refusal).
The
undersigned agree that, subject to the terms of the Credit Agreement, you shall have the right at all times to sell all or any portion of
the Liabilities of the Borrowers and all documents and instruments evidencing or pertaining to the
Liabilities of the Borrowers including this Limited Guaranty, and to grant one or more
participations in the Liabilities of the Borrowers and in all documents and instruments evidencing
or pertaining to the Liabilities of the Borrowers including this Limited Guaranty. In connection
therewith, the undersigned hereby irrevocably authorize you to deliver to each such purchaser,
participant and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Limited Guaranty and all financial statements and other credit
and factual data from time to time in your possession, which relate to the Borrowers and/or all
guarantors, including the undersigned. This Limited Guaranty is expressly declared to be
transferable and assignable.
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NOTWITHSTANDING ANY PROVISION OF THIS LIMITED GUARANTY TO THE CONTRARY, THE LIABIILTY OF THE
GUARANTOR HEREUNDER SHALL BE EXPRESSLY LIMITED TO THE THEN APPRAISED VALUE OF THE STOCK PLEDGED BY
THE GUARANTOR PURSUANT TO THAT CERTAIN COLLATERAL PLEDGE AGREEMENT BY AND AMONG KEYBANK NATIONAL
ASSOCIATION, AS AGENT AND THE GUARANTOR, DATED AS OF THE DATE HEREWITH, PLUS ALL REASONABLE COSTS
INCLUDING REASONABLE ATTORNEYS FEES INCURRED TO ENFORCE COLLECTION HEREUNDER, TOGETHER WITH
INTEREST ON AMOUNTS REASONABLE UNDER THIS LIMITED GUARANTY FROM THE TIME SUCH AMOUNTS BECOME DUE
AND PAYABLE UNDER THE NOTES APPLICABLE TO THE LIABILITIES.
If more than one guarantor have signed this Limited Guaranty or another guaranty, the
obligations of the guarantors are joint and several. The term “guarantor” and all pronouns
referring thereto as used herein shall be construed in the masculine, feminine, neuter or singular
or plural as the context may require.
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IN WITNESS WHEREOF, the undersigned has executed or caused this Limited Guaranty Agreement to
be duly executed as a sealed instrument the 30th day of June, 2009
| Witness: | THEATRE SUB, INC. | |||||||
/s/
Xxxxxxx Xxxxxxxx
|
By: | /s/ Xxxx X. Xxxxxxxx | ||||||
| Name: | ||||||||
| Title: | Vice President and CFO | |||||||
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