EXHIBIT 10.20
MASTER CREDIT AGREEMENT
EXHIBIT 10.20
MASTER CREDIT AGREEMENT
DATED AS OF MAY 3, 2002
Among
30 WEST PERSHING, LLC
("Borrower")
and
ENTERTAINMENT PROPERTIES TRUST
("EPR" and/or "Guarantor")
FLEET NATIONAL BANK, as Agent and Lender
and
THE OTHER LENDERS WHICH ARE OR MAY BECOME PARTIES TO THIS AGREEMENT
TABLE OF CONTENTS
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ss.1. DEFINITIONS AND RULES OF INTERPRETATION.................................1
ss.1.1 Definitions..................................................1
ss.1.2 Rules of Interpretation.....................................25
ss.1.3 Accounting Terms and Determinations.........................25
ss.2. THE TERM LOAN FACILITY AND THE REVOLVING CREDIT FACILITY...............26
ss.2.1 Term Loan...................................................26
ss.2.2 Revolving Credit Loans......................................27
ss.2.3 Facility Unused Fee.........................................28
ss.2.4 Intentionally Deleted.......................................28
ss.2.5 Intentionally Deleted.......................................28
ss.2.6 Interest on Loans...........................................28
ss.2.7 Requests for Revolving Credit Loans.........................28
ss.2.8 Funds for Revolving Credit Loans............................29
ss.2.9 Use of Proceeds.............................................30
ss.3. REPAYMENT OF THE LOANS.................................................31
ss.3.1 Stated Maturity.............................................31
ss.3.2 Mandatory Prepayments.......................................31
ss.3.3 Optional Prepayments........................................31
ss.3.4 Partial Prepayments.........................................31
ss.3.5 Intentionally Deleted.......................................32
ss.3.6 Effect of Prepayments.......................................32
ss.4. CERTAIN GENERAL PROVISIONS.............................................32
ss.4.1 Conversion Options..........................................32
ss.4.2 Closing Fee.................................................33
ss.4.3 Agent's Fee.................................................33
ss.4.4 Funds for Payments..........................................33
ss.4.5 Computations................................................34
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ss.4.6 Inability to Determine LIBOR................................35
ss.4.7 Illegality..................................................35
ss.4.8 Additional Interest.........................................35
ss.4.9 Additional Costs, Etc.......................................36
ss.4.10 Capital Adequacy............................................37
ss.4.11 Indemnity of Borrower.......................................37
ss.4.12 Default Interest; Late Charge...............................37
ss.4.13 Certificate.................................................38
ss.4.14 Limitation on Interest......................................38
ss.4.15 Certain Provisions Relating to Increased Costs..............38
ss.5. COLLATERAL SECURITY....................................................39
ss.5.1 Collateral..................................................39
ss.5.2 Valuation of Mortgaged Properties...........................39
ss.5.3 Replacement or Addition of Mortgaged Properties.............39
ss.5.4 Release of Mortgaged Property...............................41
ss.5.5 Release of Collateral.......................................42
ss.6. REPRESENTATIONS AND WARRANTIES.........................................42
ss.6.1 Corporate Authority, Etc....................................42
ss.6.2 Governmental Approvals......................................47
ss.6.3 Title to Properties.........................................47
ss.6.4 Financial Statements........................................48
ss.6.5 No Material Changes.........................................48
ss.6.6 Franchises, Patents, Copyrights, Etc........................49
ss.6.7 Litigation..................................................49
ss.6.8 No Materially Adverse Contracts, Etc........................49
ss.6.9 Compliance with Other Instruments, Laws, Etc................49
ss.6.10 Tax Status..................................................49
ss.6.11 No Event of Default.........................................49
ss.6.12 Holding Company and Investment Company Acts.................50
ss.6.13 Absence of UCC Financing Statements, Etc....................50
ss.6.14 Setoff, Etc.................................................50
ss.6.15 Certain Transactions........................................50
ss.6.16 Employee Benefit Plans......................................50
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ss.6.17 Disclosure..................................................51
ss.6.18 Trade Name; Place of Business...............................51
ss.6.19 Regulations T, U and X......................................51
ss.6.20 Environmental Compliance....................................52
ss.6.21 Subsidiaries................................................54
ss.6.22 Leases......................................................54
ss.6.23 Property....................................................54
ss.6.24 Brokers.....................................................55
ss.6.25 Other Debt..................................................55
ss.6.26 Solvency....................................................55
ss.6.27 No Bankruptcy Filing........................................55
ss.6.28 No Fraudulent Intent........................................56
ss.6.29 Transaction in Best Interests of Borrower; Consideration....56
ss.6.30 Capitalization..............................................56
ss.6.31 Notice of REIT Status.......................................56
ss.6.32 Intentionally Deleted
ss.6.33 Certificates of Occupancy; Licenses.........................56
ss.6.34 Insurance...................................................56
ss.6.35 Intentionally Deleted.......................................57
ss.6.36 Intentionally Deleted
ss.6.37 Intentionally Deleted
ss.7. AFFIRMATIVE COVENANTS..................................................57
ss.7.1 Punctual Payment............................................57
ss.7.2 Maintenance of Office.......................................57
ss.7.3 Records and Accounts........................................57
ss.7.4 Financial Statements, Certificates and Information..........60
ss.7.5 Notices.....................................................62
ss.7.6 Existence; Maintenance of Properties; Rating Agency
Surveillance..............................................63
ss.7.7 Insurance...................................................67
ss.7.8 Taxes; Liens................................................68
ss.7.9 Inspection of Properties and Books..........................68
ss.7.10 Compliance with Laws, Contracts, Licenses, and Permits......68
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ss.7.11 Further Assurances..........................................68
ss.7.12 Management..................................................69
ss.7.13 Leases of the Property......................................69
ss.7.14 Business Operations.........................................69
ss.7.15 Registered Servicemark......................................69
ss.7.16 Deposit of Proceeds; Other Bank Accounts....................70
ss.7.17 Distributions of Income to the Borrower.....................70
ss.7.18 Limiting Agreements.........................................70
ss.7.19 Interest Rate Contract......................................70
ss.7.20 Plan Assets.................................................70
ss.7.21 ............................................................70
ss.7.22 Cooperation with Rating Agencies............................71
ss.8. NEGATIVE COVENANTS.....................................................76
ss.8.1 Restrictions on Indebtedness................................76
ss.8.2 Restrictions on Liens, Etc..................................76
ss.8.3 Restrictions on Investments.................................77
ss.8.4 Merger, Consolidation.......................................79
ss.8.5 Sale and Leaseback..........................................79
ss.8.6 Compliance with Environmental Laws..........................79
ss.8.7 Distributions...............................................81
ss.8.8 Asset Sales.................................................81
ss.8.9 Development Activity........................................82
ss.8.10 Restriction on Prepayment of Indebtedness...................82
ss.8.11 Zoning and Contract Changes and Compliance..................82
ss.8.12 Derivative Obligations......................................82
ss.8.13 Bankruptcy Remote Subsidiaries..............................82
ss.8.14 Intentionally Deleted
ss.9. FINANCIAL COVENANTS....................................................83
ss.9.1 Borrowing Base..............................................83
ss.9.2 Debt Service Coverage Ratio.................................83
ss.9.3 Total Debt to Total Asset Value.............................83
ss.9.4 Maximum Permitted Investments...............................83
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ss.9.5 Tangible Net Worth..........................................83
ss.9.6 Interest Rate Protection....................................83
ss.9.7 Maximum Distributions.......................................83
ss.10. CLOSING CONDITIONS.....................................................83
ss.10.1 Loan Documents..............................................83
ss.10.2 Certified Copies of Organizational Documents................84
ss.10.3 Resolutions.................................................84
ss.10.4 Incumbency Certificate; Authorized Signers..................84
ss.10.5 Opinion of Counsel..........................................84
ss.10.6 Payment of Fees.............................................84
ss.10.7 Insurance...................................................84
ss.10.8 Performance; No Default.....................................84
ss.10.9 Representations and Warranties..............................84
ss.10.10 Proceedings and Documents...................................85
ss.10.11 Eligible Real Estate Qualification Documents................85
ss.10.12 Compliance Certificate......................................85
ss.10.13 Intentionally Deleted.......................................85
ss.10.14 Endorsements to Title Policy................................85
ss.10.15 Stockholder and Partner Consents............................85
ss.10.16 Acquisition of Interest Rate Contract.......................85
ss.10.17 Estoppels...................................................85
ss.10.18 Subordination, Non-Disturbance and Attornment Agreements....85
ss.10.19 Certificates of Occupancy...................................86
ss.10.20 Environmental Reports.......................................86
ss.10.21 Zoning......................................................86
ss.10.22 Guaranty....................................................86
ss.10.23 Other.......................................................86
ss.11. CONDITIONS TO ALL BORROWINGS...........................................86
ss.11.1 Prior Conditions Satisfied..................................86
ss.11.2 Representations True; No Default............................86
ss.11.3 No Legal Impediment.........................................87
ss.11.4 Governmental Regulation.....................................87
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ss.11.5 Proceedings and Documents...................................87
ss.11.6 Borrowing Documents.........................................87
ss.11.7 Endorsement to Title Policy.................................87
ss.11.8 Future Advances Tax Payment.................................87
ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC...................................88
ss.12.1 Events of Default and Acceleration..........................88
ss.12.2 Limitation of Cure Periods..................................91
ss.12.3 Termination of Commitments..................................92
ss.12.4 Remedies....................................................92
ss.12.5 Distribution of Collateral Proceeds.........................93
ss.13. SETOFF.................................................................94
ss.13.1 Setoff......................................................94
ss.13.2 Additional Rights...........................................94
ss.14. THE AGENT..............................................................94
ss.14.1 Authorization...............................................94
ss.14.2 Employees and Agents........................................94
ss.14.3 No Liability................................................95
ss.14.4 No Representations..........................................95
ss.14.5 Payments....................................................95
ss.14.6 Holders of Notes............................................96
ss.14.7 Indemnity...................................................96
ss.14.8 Agent as Lender.............................................97
ss.14.9 Resignation; Removal........................................97
ss.14.10 Duties in the Case of Enforcement...........................97
ss.14.11 Request for Agent Action....................................98
ss.14.12 Reliance on Hedge Provider..................................98
ss.14.13 Replacement of Holdout Lender...............................98
ss.15. EXPENSES...............................................................99
ss.16. INDEMNIFICATION.......................................................100
ss.16.1 Lender Indemnification.....................................100
ss.16.2 Borrower Must Notify.......................................101
ss.16.3 Remedies...................................................101
ss.16.4 Limitations................................................101
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ss.16.5 Obligations Absolute.......................................102
ss.17. SURVIVAL OF COVENANTS, ETC............................................102
ss.18. ASSIGNMENT AND PARTICIPATION..........................................102
ss.18.1 Conditions to Assignment by Lenders........................102
ss.18.2 Register...................................................103
ss.18.3 New Notes..................................................103
ss.18.4 Participations.............................................104
ss.18.5 Pledge by Lender...........................................104
ss.18.6 No Assignment by Borrower..................................104
ss.18.7 Disclosure.................................................104
ss.18.8 Amendments to Loan Documents...............................105
ss.19. NOTICES...............................................................105
ss.20. RELATIONSHIP..........................................................107
ss.21 USURY.................................................................107
ss.22. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE....................107
ss.23 POWER OF ATTORNEY.....................................................108
ss.24. HEADINGS..............................................................108
ss.25. COUNTERPARTS..........................................................108
ss.26. ENTIRE AGREEMENT, ETC.................................................108
ss.27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS........................108
ss.28. DEALINGS WITH THE BORROWER............................................109
ss.29. CONSENTS, AMENDMENTS, WAIVERS, ETC....................................109
ss.30. SEVERABILITY..........................................................110
ss.31. TIME OF THE ESSENCE...................................................110
ss.32. NO UNWRITTEN AGREEMENTS...............................................110
ss.33. REPLACEMENT NOTES.....................................................110
ss.34. NO THIRD PARTIES BENEFITED............................................110
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MASTER CREDIT AGREEMENT
- - - - - - - - - - - -
THIS MASTER CREDIT AGREEMENT (this "Agreement") is made as of the 3rd day
of May, 2002, by and among 30 WEST PERSHING, LLC, a limited liability company
duly organized and validly existing under the laws of the State of Missouri
("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") (Collectively, Borrower and Guarantor may be referred
to as the "Obligors") having its principal place of business at c/o
Entertainment Properties Trust, 00 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, XX
00000, FLEET NATIONAL BANK ("Fleet"), the other lending institutions which are
or may become parties to this Agreement as "Lenders", 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, Borrower has requested and Lenders have agreed to, among other
things, to extend a revolving credit facility up to a maximum amount of
$50,000,000 and to provide for the terms of a non-committed term loan in an
amount yet to be determined by Lender; and
WHEREAS, EPT DownREIT, Inc., a Missouri corporation is a wholly owned
subsidiary of EPR, and is the controlling common member of the Borrower and as
such the Borrower, EPT, EPT Gulf States, LLC, a Delaware limited liability
company and EPR are engaged as an integrated group in business related to the
Permitted Uses (as hereinafter defined). Additionally, EPR and EPTGS provide
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 is hereby acknowledged by
each of the parties, the parties hereby 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 pursuant to ss.5.5.
Advance. Any advance of proceeds under the Loans hereunder.
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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 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, 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 (e) 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. Xxxxx & Xxxxxxxx LLP or such other counsel as
selected by Agent.
Agreement. This Master Credit Agreement, including the Schedules and
Exhibits hereto.
Applicable Margins. The Applicable LIBOR Margin shall be 3.00% and the
Applicable Base Rate Margin shall be 1.50%.
Assignment and Acceptance Agreement. See ss.18.1.
Assignment of Hedge. The Assignment of Hedge Agreement by the Borrower to
the Agent for the benefit of the Lenders pursuant to which the Interest Rate
Contract described in ss.10.16 is pledged as security for the Obligations, and
any financing statements that may be delivered in connection therewith.
Assignment of Interests. The Assignment of Interests by EPTGS to the Agent
for the benefit of the Lenders relating to the membership interests of EPTGS in
the Borrower pursuant to which EPTGS ownership interests in the Borrower are
pledged to the Agent for the benefit of the Lenders, and each other Assignment
of Interests which
2
may hereafter be executed pursuant to ss.5.3, as the same may be modified or
amended, and any further assignments, certificates, powers, consents,
acknowledgments, 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.
Balance Sheet Date. December 31, 2001.
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. At any time with respect to the Borrower, the Borrowing
Base shall be the Borrowing Base for Eligible Real Estate included in the
Mortgaged Property owned by the Borrower or any Guarantor. The Borrowing Base
for Eligible Real Estate included in the Mortgaged Property shall be the amount
which is the lesser of (a) sixty percent (60%) of the sum of the Mortgaged
Property Asset Value of the Mortgaged Properties, (b) the Maximum Commitment
Amount, or (c) that amount determined by dividing the Aggregate Underwriteable
Cash Flow by 1.75 and further dividing such amount by the LIBOR Rate then in
effect (after giving effect to any Hedge Obligations required pursuant to
ss.10.16 herein), plus 300 basis points. Notwithstanding
3
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 offices of Fleet National Bank
are not required or authorized by law to be closed for business in 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
Borrower equal to at least twenty percent (20%); or
(b) as of any date a majority of the managers or other controlling
members of Borrower consists of individuals who were not either (i)
managers or otherwise controlling members or entities, as the case may be,
of Borrower 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 Borrower 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
Borrower 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 and ss.11 have been satisfied.
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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 to ss.5.4.
Collateral Replacement. Any substitution, replacement or addition of
Collateral hereunder, pursuant to ss.5.3 and ss.12.
Commission. The Securities and Exchange Commission.
Commitment. With respect to each Lender, the aggregate of (a) the Revolving
Credit Commitment and (b) the Term Loan 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. See ss.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 Expense. For any period, interest expensed in respect
of Indebtedness of EPR and its Subsidiaries, 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.
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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.
Credit Event. Any occurrence of an Advance, Collateral Release or
Collateral Replacement hereunder.
Credit Event Maximum Outstanding Amount (or, as may also be referred to
herein as the "Credit Event Amount"). At any time with respect to the Borrower,
the Credit Event Amount shall be the Credit Event Amount for Eligible Real
Estate included in the Mortgaged Property owned by the Borrower or any
Guarantor. The Credit Event Amount for Eligible Real Estate included in the
Mortgaged Property shall be the amount which is no more than fifty percent (50%)
of the sum of the Mortgaged Property Asset Value of a Mortgaged Property.
Notwithstanding the foregoing, the Credit Event Amount attributable to a
Mortgaged Property shall not exceed the amount to which recovery under the
applicable Mortgage is limited and the Credit Event Amount for all such
Mortgaged Properties shall not exceed the lesser of (a) $50,000,000.00 and (b)
fifty percent (50%) of the sum of the Mortgaged Property Asset Value of all the
Mortgaged Properties.
Debt Service. Consolidated Interest Incurred plus regularly scheduled
amortization payments (excluding balloon maturities).
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Default Rate. See ss.4.12.
Derivative Obligations. All Interest Rate Contracts and all 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, 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, 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, amortization,
interest expensed, 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; and minus (f) the Replacement Reserve figure, all as determined in
accordance with GAAP. All of the foregoing to be calculated without duplication
and with respect to (b) - (f), 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 a Guarantor;
7
(b) which is located within the contiguous 00 Xxxxxx xx xxx
xxxxxxxxxxx Xxxxxx Xxxxxx, 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
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, which lease has been
approved by the 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 the Borrower to be in violation of the
Borrowing Base or the Credit Event amount; and
(h) which is approved by the 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.
Environmental Laws. See ss.6.20(a).
EPT. EPT DownREIT, Inc., a corporation duly organized and validly existing
under the laws of the State of Missouri, and wholly owned subsidiary of EPR.
EPTGS. EPT Gulf States, LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware, for which a
controlling common membership is owned by EPT.
Equity Offering. The issuance and sale after February 5, 2002 by any of EPR
or its Subsidiaries of any equity securities of EPR or its Subsidiaries.
8
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. See ss.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 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 XXX Xxxxxxx, divided by .70, to arrive at total
revenues, and multiplied by an assumed Exhibitor EBITDAR margin of
thirty-six percent (36%) (the "Xxxxxxx Exhibitor EBITDAR").
(d) In the event that such Xxxxxxx Exhibitor EBITDAR is not available,
then the calculation of Exhibitor EBITDAR shall be based upon actual annual
revenues for the most recently ended calendar year of the exhibitor/tenant
at said Mortgaged Property multiplied by an assumed EBITDAR margin of
thirty-six percent (36%) (the "Annual Exhibitor EBITDAR");
9
(e) 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 and Term Loans in the
maximum amount of $50,000,000.00.
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.
FFO. With respect to Borrower, 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.
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,
10
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. 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. See ss.6.20(b).
Hedge Obligations. All obligations of Borrower to any Lender or an
Affiliate of a Lender to make any termination payments under any agreement with
respect to an interest rate swap, collar, cap or floor or a forward rate
agreement or other agreement regarding the hedging of interest rate risk
exposure executed in connection with the satisfaction of the condition set forth
in ss.10.16, and any confirming letter executed pursuant to such hedging
agreement, all as amended, restated or otherwise modified.
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
11
accordance with a method approved by the International Swap Dealers Association
and agreed to by such Person in the applicable hedging agreement, if any), and
(x) all Indebtedness of others Guaranteed by such Person.
Independent Director. An individual reasonably satisfactory to 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. Underwriteable Cash Flow for an
individual Mortgaged Property for the trailing four (4) quarter period, divided
by 0.11 (which is the capitalization rate) (the "UCF Test"), 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 lesser of the UCF Test, and 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
12
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.
Interest Rate Protection. See ss.9.6.
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.
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).
13
LIBOR. As applicable to any Interest Period for any LIBOR 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 and
Term LIBOR Rate Loans and bearing interest by reference to LIBOR.
Lien. See ss.8.2.
14
Loan Documents. This Agreement, the Notes, 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. See ss.2.7.
Loans. Collectively, the Revolving Credit Loans and the Term Loans.
Majority Lenders. As of any date, the Lender or Lenders whose aggregate
Commitment Percentage is greater than fifty percent (50%) of the Total
Commitment.
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. April 30, 2005, or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Maximum Commitment Amount. The maximum availability under the Facility
shall be $50,000,000.00
Maximum Distributions. See ss.9.7 herein.
Maximum Permitted Investments. See ss.9.4 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: Clearview,
Metarie, LA; Hammond, Hammond, LA; and Houma, Houma, LA.
Minimum Consolidated Tangible Net Worth. At any time, the sum of (a)
$205,000,000.00 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.
Minimum Debt Service Coverage Ratio. At any time, the ratio of EBITDA to
Debt Service for EPR and its Subsidiaries on a Consolidated basis shall not be
less than 2.00:1.00.
15
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.
Moody's. Xxxxx'x Investor Service, Inc.
Mortgaged Property or Mortgaged Properties. The Eligible Real Estate owned
by the Borrower or a Guarantor which is security for the Obligations pursuant to
the Mortgages. The Mortgaged Property shall initially consist of seven Megaplex
Movie Theatres which shall contain the following Louisiana properties
(collectively, as listed below, the "Initial Eligible Real Estate"), along with
any two of the below-noted Xxxxxxx, Livonia, Olathe Station or Forum:
Name Location Exhibitor Screens
---- -------- --------- -------
Elmwood Harahan, LA AMC 00
Xxxxxxxxx Xxxxxxx, XX AMC 00
Xxxxxxxx Xxxxxx, XX AMC 00
Xxxxxxx Xxxxxxx, XX AMC 10
Houma Houma, LA AMC 10
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. The parties hereto
also acknowledge that it is the intent of the parties that the Initial Eligible
Real Estate shall include the aforenamed five Louisiana properties, along with
any two of the below-noted properties:
Xxxxxxx Alexandria, VA AMC 22
Livonia Livonia, MI AMC 00
Xxxxxx Xxxxxxx Xxxxxx, XX AMC 24
Forum Sterling Heights, MI AMC 30
16
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.
Mortgaged Property Asset Value. With respect to any Eligible Real Estate
included in the Mortgaged Property owned by the Borrower, the amount equal to
the Underwriteable Cash Flow therefrom for the trailing twelve (12) month
period, divided by 0.11 (which is the capitalization rate).
Mortgaged Property Net Operating Income. With respect to any Mortgaged
Property, for any period, the aggregate of actual recurring "property revenues"
earned and received by Borrower 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, a Guarantor or its Subsidiaries 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 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 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 a Guarantor to the Agent for the benefit of the Lenders (or to
17
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 a Guarantor has conveyed or granted a mortgage lien upon or a conveyance in
fee simple of a Mortgaged 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.
Non-Advance Condition. See ss.12.1 herein.
Notes. Collectively, the Revolving Credit Notes and the Term Loan 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, or other instruments including but not
limited to Hedge Obligations 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.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
Permitted Encumbrances. Each Lien granted pursuant to any of the Security
Documents, 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
18
Schedule B of the title insurance policies issued in connection with the
Mortgaged Properties.
Permitted Liens. Liens, security interests and other encumbrances permitted
by ss.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 a 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.
Qualifying Rating. With respect to Borrower, a Rating equal to or more
favorable than BB with respect to a rating issued by S&P, a rating of Ba2 in the
case of a Rating issued by Xxxxx'x, or BB in the case of a Rating by Fitch. If,
at any time after Borrower obtains a Qualifying Rating, (a) the rating system of
any of the Rating Agencies (as opposed to the rating of the Borrower) shall
change, or (b) any of the Rating Agencies shall no longer perform the functions
of a securities rating agency, then the Borrower and the Agent shall promptly
negotiate in good faith to amend the reference to the specific ratings in this
definition for the determination of the Qualifying Rating, and pending such
amendment, the applicable rating in effect as of the date the event described in
this paragraph occurred shall continue to apply.
Rating. With respect to the Borrower, the most recent rating issued from
time to time by a Rating Agency as is applicable to Borrower as an issuer with
respect to long-term debt (i.e., a corporate credit or issuer rating with
respect to long-term debt), or if no such Rating is in effect, then the rating
applicable to Borrower's senior unsecured debt.
Rating Agencies. S&P, Xxxxx'x and Xxxxx.
Rating Notice. See ss.7.4(i) herein.
Rating Notice Date. The earlier of (a) the date a Rating Notice is received
by the Agent, or (b) the date the Agent, having received actual notice of a
change by a Rating Agency of its Rating, sends notice to the Borrower of such
change, provided that nothing contained herein shall imply any obligation of the
Agent to monitor such rating changes.
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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 a 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, a replacement reserve in an amount equal to twenty cents
($.20) multiplied by the Net Rentable Area contained therein.
Required Lenders. As of any date, the Lender or Lenders 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.
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Revolving Credit Commitment. With respect to each Revolving Credit Lender,
the amount set forth on Schedule 1 hereto as the aggregate amount of such
Revolving Credit Lender's Revolving Credit Commitment, as the same may be
reduced from time to time in accordance with the terms of this Agreement.
Revolving Credit Commitment Percentage. With respect to each Revolving
Credit Lender, the percentage set forth on Schedule 1 hereto as such Revolving
Credit Lender's percentage of the aggregate Revolving Credit Commitments of all
of the Revolving Credit Lenders.
Revolving Credit Lenders. Collectively, the Lenders which are the holders
of the Revolving Credit Notes, such Revolving Credit Lenders being identified on
Schedule 1 hereto.
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 $50,000,000.00 to be made by the Revolving Credit Lenders hereunder as
more particularly described in ss.2.
Revolving Credit Notes. See ss.2.2(b) herein.
Security Documents. Collectively, the Guaranty, the Mortgages, the
Assignments of Leases and Rents, the Indemnity Agreements, the Assignment of
Interests, the Assignment of Hedge, UCC-1 financing statements and any further
collateral assignments to the Agent for the benefit of the Lenders.
S&P. Standard & Poor's Ratings Group.
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
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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 an indirect 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 Guarantor which leases space in a
Mortgaged Property pursuant to a Lease.
Term Base Rate Loans. The Term Loans bearing interest by reference to the
Base Rate.
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Term LIBOR Rate Loans. The Term Loans bearing interest by reference to
LIBOR.
Term Loan or Term Loans. An individual Term Loan or the aggregate Term
Loans, as the case may be, in the maximum principal amount of $0.00 made by the
Term Loan Lenders hereunder and evidenced by the Term Loan Notes.
Term Loan Commitment. As to each Term Loan Lender, the amount equal to such
Term Loan Lender's percentage set forth on Schedule 1 of the aggregate principal
amount of the Term Loans from time to time outstanding.
Term Loan Commitment Percentage. With respect to each Term Loan Lender, the
percentage set forth on Schedule 1 hereto as such Term Loan Lender's percentage
of the aggregate Term Loans.
Term Loan Lenders. Collectively, the Lenders which are the holders of the
Term Loan Notes, such Term Loan Lenders being identified on Schedule 1 hereto.
Term Loan Notes. See ss.2.1(b) herein.
Test Period. See ss.9.2 herein.
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
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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)
$50,000,000.00.
Total Debt. All Indebtedness of EPR and any of its Subsidiaries', 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 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 the Borrower, Guarantor and its Subsidiaries.
Type. As to any Revolving Credit Loan or Term Loan, its nature as a Base
Rate Loan or a LIBOR Rate Loan.
Underwriteable Cash Flow. The amount, determined individually with respect
to each of the Mortgaged Properties, equal to the lesser of (a) such Mortgaged
Property's Net Operating Income for the trailing 4 quarter period and (b) the
Exhibitor's EBITDAR for such Mortgaged Property 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.
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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 singular includes the plural and the plural includes the
singular.
(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 Commonwealth
of Massachusetts, 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
25
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 TERM LOAN FACILITY AND THE REVOLVING CREDIT FACILITY.
ss.2.1 Term Loan.
(a) Subject to the terms and conditions set forth in this Agreement,
each of the Term Loan Lenders severally agrees to lend to the Borrower such
Term Loan Lender's Term Loan Commitment Percentage of the Term Loan
Commitment.
(b) The Term Loans shall be evidenced by separate promissory notes of
the Borrower in substantially the form of Exhibit A hereto (collectively,
the "Term Loan Notes"), dated of even date with this Agreement (except as
otherwise provided in ss.18.3) and completed with appropriate insertions.
One Term Loan Note shall be payable to the order of each Term Loan Lender
in the principal amount equal to such Term Loan Lender's Term Loan
Commitment, 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 receipt of any payment of principal thereof, an appropriate
notation on Agent's Record reflecting the receipt of such payment. The
outstanding amount of the Term Loans set forth on Agent's Record shall be
prima facie evidence of the principal amount thereof owing and unpaid to
each Term Loan 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 Term Loan
Note to make payments of principal of or interest on any Term Loan Note
when due.
(c) Notwithstanding anything to the contrary contained herein, the
parties hereto hereby acknowledge, confirm and agree that as of the date of
this Agreement, there does not exist any Term Loan Commitment from any
Lenders. The provisions herein relating to the Term Loans are made in
contemplation of Term Loan and Term Loan Commitments in the future, and are
in no way intended to be nor shall any such terms be interpreted as a
Commitment for any such Term Loan, and as such are not binding on the
parties to this Agreement unless and until such time as any Lender provides
a Term Loan Commitment.
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ss.2.2 Revolving Credit Loans.
(a) Subject to the terms and conditions set forth in this Agreement,
each of the Revolving Credit 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) at any one time equal to the lesser of (i) such
Revolving Credit Lender's Revolving Credit Commitment and (ii) such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the sum
of (A) the Credit Event Maximum Outstanding Amount minus (B) the amount of
all Outstanding Term Loans; provided, that, in all events no Non-Advance
Condition 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) shall not at
any time exceed the total Maximum Commitment Amount plus the outstanding
Term Loans, if any, 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Lender in the principal amount equal to
such Revolving Credit Lender's Revolving Credit Commitment or, if less, the
outstanding amount of all Revolving Credit Loans made by such Revolving
Credit 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 Revolving Credit 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 Revolving Credit Lenders as of the date hereof
and evidenced by the
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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
Revolving Credit Lenders in accordance with their respective Revolving
Credit Commitment Percentages a facility unused fee calculated at the rate
per annum of 0.50% on the average daily amount by which the total Revolving
Credit Commitment exceeds the outstanding principal amount of Revolving
Credit Loans during each calendar quarter or portion thereof commencing on
the date hereof and ending on the Maturity Date.
(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) of each Revolving Credit
Loan requested hereunder (a "Loan Request") by 9:00 a.m. (Boston time) on the
Business Day of 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
28
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 and the Credit Event Maximum
Outstanding Amount 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 Revolving Credit 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 Revolving Credit Lenders on the proposed Drawdown Date; provided that,
in addition to the Borrower's other remedies against any Revolving Credit 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 Revolving Credit 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
Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 and Term 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 Revolving Credit Lenders
will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Revolving Credit 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
29
receipt from each Revolving Credit 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 Revolving Credit Lenders by
crediting such amount to the account of the Borrower maintained at the
Agent's Head Office. The failure or refusal of any Revolving Credit 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 Revolving
Credit Lender from its several obligation hereunder to make available to
the Agent the amount of such other Revolving Credit 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 Revolving Credit Lender so failing or refusing.
In the event of any such failure or refusal, the Revolving Credit Lenders
not so failing or refusing shall be entitled to a priority secured position
as against the Revolving Credit Lender or Revolving Credit 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 Revolving Credit
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,
Agent may in its discretion assume that such Revolving Credit 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 Revolving Credit Lender shall be liable to the Agent for
the amount of such advance. If such Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 provide financing for the acquisition and development by the
Borrower, Guarantor and their Subsidiaries of Real Estate utilized or to be
utilized for Megaplex Movie Theatre properties or other approved properties; (b)
for capital improvement projects for
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Real Estate; (c) for general corporate purposes of Borrower and its Guarantors
and any Subsidiaries; and (d) for such other purposes as the Required Lenders in
their sole discretion from time to time may agree in writing.
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 exceeds the aggregate
Revolving Credit Commitments, or the aggregate outstanding principal balance of
the Revolving Credit Loans and the Term Loans exceeds the Borrowing Base, or if
at any time upon the occurrence of a Credit Event the sum of the aggregate
outstanding principal amount of the Revolving Credit Loans and the Term Loans
exceeds the Credit Event Maximum Outstanding Amount, 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 or Term Loans and the
principal amount to be prepaid. Notwithstanding the foregoing, the Term Loans
may be prepaid pursuant to the terms of the Term Loan Notes.
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 then to the
principal of the Term Loans, and within each category, first to the principal of
Base Rate Loans within such category and then to the principal of LIBOR
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Rate Loans within such category. Notwithstanding anything herein to the
contrary, any prepayment of the Term Loans shall be accompanied by an equal
reduction in the Revolving Credit Commitments pursuant to ss.2.4 (and a
corresponding prepayment of the Revolving Credit Loans, if necessary).
ss.3.5 Intentionally Deleted.
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. Any portion of
the Term Loan that is prepaid may not be reborrowed.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.4.1 Conversion Options.
(a) The Borrower may elect from time to time to convert any of its
outstanding 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 (including both Revolving Credit Loans and Term 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 Non Advance Condition has occurred and is continuing.
All or any part of the outstanding Revolving Credit Loans or Term 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
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Interest Period of greater than one month when any Non-Advance Condition
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 Non Advance Condition 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 a
separate closing fee in such amount as set forth pursuant to the Summary of
Terms and Conditions from Fleet to Entertainment Properties Trust dated March 5,
2002. This fee shall be entirely earned as of the date hereof.
ss.4.3 Agent's Fee. The Borrower shall pay to the Agent, for the Agent's
own account, an annual Agent's fee as shall be provided in a separate agreement
entitled the Agreement Regarding Fees between Borrower and Fleet. 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, 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
33
Agent, for the account of the Lenders or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Lenders or the Agent to receive the same net amount
which the Lenders or the Agent would have received on such due date had no
such obligation been imposed upon the Borrower. The Borrower will deliver
promptly to the Agent certificates or other valid vouchers for all taxes or
other charges required to be deducted from or paid with respect to payments
made by the Borrower hereunder or under any other Loan Document.
(c) Each Lender organized under the laws of a jurisdiction outside the
United States, if requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide the Borrower
with such duly executed form(s) or statement(s) which may, from time to
time, be prescribed by law and, which, pursuant to applicable provisions of
(i) an income tax treaty between the United States and the country of
residence of such Lender, (ii) the Code, or (iii) any applicable rules or
regulations in effect under (i) or (ii) above, indicates the withholding
status of such Lender; provided that nothing herein (including without
limitation the failure or inability to provide such form or statement)
shall relieve the Borrower of its obligations under ss.4.4(b). In the event
that the Borrower shall have delivered the certificates or vouchers
described above for any payments made by the Borrower and such Lender
receives a refund of any taxes paid by the Borrower pursuant to ss.4.4(b),
such Lender will pay to the Borrower the amount of such refund promptly
upon receipt thereof; provided that if at any time thereafter such Lender
is required to return such refund, the Borrower shall promptly repay to
such Lender the amount of such refund.
(d) The obligations of the Borrower to the Lenders under this
Agreement shall be absolute, unconditional and irrevocable, and shall be
paid and performed strictly in accordance with the terms of this Agreement,
under all circumstances whatsoever, including, without limitation, the
following circumstances: (i) any lack of validity or enforceability of this
Agreement any of the other Loan Documents; (ii) the existence of any claim,
set-off, defense or any right which the Borrower or any of its Subsidiaries
or Affiliates may have at any time against any of the Lenders (other than
the defense of payment to the Lenders in accordance with the terms of this
Agreement) or any other person, whether in connection with this Agreement,
any other Loan Document, or any unrelated transaction; (iii) the surrender
or impairment of any security for the performance or observance of any of
the terms of any of the Loan Documents; (iv) the occurrence of any
Non-Advance Condition or Event of Default.
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.
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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
35
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, or any class of loans or commitments of
which any of the Loans or such Lender's Commitment forms a part;
and the result of any of the foregoing is:
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans, or such
Lender's Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to any Lender or the Agent hereunder on account of such
Lender's Commitment or any of the Loans, or
(iii) to require any Lender or the Agent to make any payment or
to forego any interest or other sum payable hereunder, the amount of
which payment or
36
foregone interest or other sum is calculated by reference to the gross
amount of any sum receivable or deemed received by such Lender or the
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, within fifteen (15) days of
demand made by such Lender or (as the case may be) the Agent at any time
and from time to time and as often as the occasion therefor may arise, pay
to such Lender or the Agent such additional amounts as such Lender or the
Agent shall determine in good faith to be sufficient to compensate such
Lender or the Agent for such additional cost, reduction, payment or
foregone interest or other sum. Each Lender and the Agent in determining
such amounts may use any reasonable averaging and attribution methods
generally applied by such Lender or the Agent.
ss.4.10 Capital Adequacy. If after the date hereof any Lender determines
that (a) the adoption of or change in any law, rule, regulation or guideline
regarding capital requirements for banks or bank holding companies or any change
in the interpretation or application thereof by any governmental authority
charged with the administration thereof, or (b) compliance by such Lender or its
parent bank holding company with any guideline, request or directive of any such
entity regarding capital adequacy (whether or not having the force of law), has
the effect of reducing the return on such Lender's or such holding company's
capital as a consequence of such Lender's commitment to make Loans hereunder to
a level below that which such Lender or holding company could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such holding company's then existing policies with respect to capital
adequacy and assuming the full utilization of such entity's capital) by any
amount deemed by such Lender to be material, then such Lender may notify the
Borrower thereof. The Borrower agrees to pay to such Lender the amount of such
reduction in the return on capital as and when such reduction is determined,
upon presentation by such Lender of a statement of the amount setting forth the
Lender's calculation thereof. In determining such amount, such Lender may use
any reasonable averaging and attribution methods generally applied by such
Lender.
ss.4.11 Indemnity of Borrower. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from and against any loss, cost or expense that
such Lender may sustain or incur as a consequence of (a) default by the Borrower
in payment of the principal amount of or any interest on any LIBOR Rate Loans as
and when due and payable, including any such loss or expense arising from
interest or fees payable by such Lender to lenders of funds obtained by it in
order to maintain its LIBOR Rate Loans, or (b) default by the Borrower in making
a borrowing or a conversion after the Borrower has given (or is deemed to have
given) a Loan Request or a Conversion/Continuation Request.
ss.4.12 Default Interest; Late Charge. Following the occurrence and during
the continuance of any Event of Default, and regardless of whether or not the
Agent or the Lenders shall have accelerated the maturity of the Loans, all Loans
shall bear interest payable on demand at a rate per annum equal to four percent
(4%) above the rate that would otherwise be applicable at such time (the
"Default Rate"), until such amount shall
37
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 Non-Advance
Condition 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
38
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.
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 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) Stock/Member Interest Pledge Agreement pledging
stock or membership interest of the Borrower. The Obligations shall be
guaranteed pursuant to the Guaranty.
ss.5.2 Valuation of Mortgaged Properties. For purposes of the release
provisions noted hereinbelow, the total amount outstanding under the Loans shall
be allocated to each of the Mortgaged Properties based upon the Individual
Mortgaged Property Asset Value relative to the aggregate Mortgaged Property
Asset Value.
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
39
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 Non-Advance Condition
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 Borrower is in compliance with the Credit Event Maximum
Outstanding Amount and the Borrowing Base.
40
(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 Credit Event
Maximum Outstanding Amount or Borrowing Base until the requirements of
ss.5.3(a) are satisfied.
ss.5.4 Release of Mortgaged Property. Provided no Non-Advance Condition 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), 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;
41
(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
Non-Advance Condition 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, which payment shall be applied to reduce the outstanding
principal balance of the Loans as provided in ss.3.4, in an amount equal to
the greater of (a) 125% of the allocated Loan amount to the Mortgaged
Property being released; (b) such amount as is necessary to cause the ratio
of Underwriteable Cash Flow for all of the Mortgaged Properties to Debt
Service of the Borrower to be not less than 2.00 to 1.00 after giving
effect to such release; (c) such amount as is necessary to cause the ratio
of Underwriteable Cash Flow for all of the Mortgaged Properties to Debt
Service of the Borrower after giving effect to such release to at least
equal the ratio of Underwriteable Cash Flow for all of the Mortgaged
Properties to Debt Service of the Borrower prior to said release, or (d)
such amount as is necessary such that the total amount outstanding under
the Loans does not exceed the Credit Event Maximum Outstanding Amount.
ss.5.5 Release of Collateral. Upon the refinancing or repayment of the
Obligations in full, then the Agent shall release the Collateral from the lien
and security interest of the Security Documents and shall release the
Guarantors, provided that Agent has not received a notice from the
"Representative" (as defined in ss.14.12) or the holder of the Hedge Obligations
that any Hedge Obligation is then due and payable to the holder thereof, at
which time Agent shall work diligently with Borrower and Representative to
resolve any issues with respect thereto in order to repay any such Hedge
Obligations such that Agent can provide said release.
ss.6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants 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, Borrower hereby represents, warrants and covenants that Borrower
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:
42
(i) is organized solely for the purpose of acquiring, developing,
owning, holding, selling, leasing, transferring, exchanging, managing
and operating the Mortgaged Properties owned by it (directly or
indirectly), entering into this Agreement and the other Loan Documents
with Lender, refinancing the Mortgaged 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 owned by it (directly or indirectly);
(iii) does not have and will not have any assets other than those
related to the Mortgaged 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.
43
(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 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
44
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;
45
(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, 2002, or as of the date of
this Agreement, from maintaining such qualification at all times during the
term of the Loan.
(e) Borrower-SPE. Borrower 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 and Virginia, subject to deletion or addition
of a state as a result of any change in the Mortgaged Properties. Borrower
conducts its business in a manner which enables it to qualify as an SPE.
The 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 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. The Borrower has not taken any
action that would prevent it from maintaining its qualification as an SPE
as of the date of this Agreement, or from maintaining such qualification at
all times during the term of the Loan.
46
(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 6.25 hereto,
the EPR's 2001 Form 10-K ("10-K") and 2002 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
47
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: (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, 2001 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 generally accepted accounting principles 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 financial condition or business 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. Notwithstanding
anything to the contrary contained herein, the Lender acknowledges that the
Loews Theater Company
48
leasing and operating the property located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, owned by EPR has filed for bankruptcy protection. Lender further
acknowledges and consents that any rejection or modification of this particular
lease will not, in and of itself, constitute a Material Adverse Effect
hereunder.
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 xxxx 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
49
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 Non-Advance Condition 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 Lender hereto 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
50
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
Borrower will not 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
51
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 ("XXXX"), 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 (other than the
Elmwood AMC Theatre located in Metarie, LA ("Elmwood").
(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 000 Xxxxxxxx X (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.
52
(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,
other than Elmwood, 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.
53
(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, 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
54
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
55
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 Borrower is
owned 100% by EPTGS.
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
56
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 covenants and agrees to the following, so long as any Loan or
Note is outstanding or any of the Lenders have any obligation to make any Loans.
ss.7.1 Punctual Payment. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans and all interest and fees
provided for in this Agreement, all in accordance with the terms of this
Agreement and the Notes, as well as all other sums owing pursuant to the Loan
Documents.
Maintenance of Office. The Borrower and each Guarantor will maintain its
respective chief executive office at 00 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx,
XX, 00000, 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
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.7.2 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.7.3 Financial Statements, Certificates and Information. Borrower will
deliver or cause to be delivered to the Agent with sufficient copies for each of
the Lenders:
57
(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, 2002, 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 Five" accounting firm (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 Lender be deemed delivered to
Lender nor shall any such information contained in any such prior filings
be deemed delivered to Lender), and any other information the Lenders 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 Non-Advance Condition or Event of Default, or, if such
accountants shall have obtained knowledge of any Non-Advance Condition or
Event of Default they shall disclose in such statement any such Non-Advance
Condition 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/Credit Event Amount Certificate in the form of
58
Exhibit J attached hereto pursuant to which the Borrower shall calculate
the amount of the Credit Event Maximum Outstanding Amount and 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) not later than five (5) Business Days after the Borrower or EPR or
any of its Subsidiaries receives notice of the same from any of the Rating
Agencies or otherwise learns of the same, notice of the issuance of any
change in the Rating by any of the Rating Agencies in respect of the
Borrower or any debt of the Borrower (including any change in the Rating),
together with the details thereof, and of any announcement by any of the
Rating Agencies that any such Rating is "under review" or that any such
Rating has been placed on a watch list or that any similar action has been
taken by any of the Rating Agencies (collectively, a "Rating Notice");
59
(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.7.4 Notices.
(a) Defaults. The Borrower will immediately upon obtaining actual
knowledge of same notify the Agent in writing of the occurrence of any
Non-Advance Condition or Event of Default, which notice shall describe such
occurrence with reasonable specificity and shall state that such notice is
a "notice of non-advance condition 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 Non-Advance Condition or have a Material
Adverse Effect, the Borrower 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.
60
(b) Environmental Events. The Borrower 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 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 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 will give notice to the Agent of any
completed sale, encumbrance, refinance or transfer of any Real Estate
(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 Non-Advance Condition or Event of Default with
respect to the covenants referred to therein shall exist after giving
effect to such sale,
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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.7.5 Existence; Maintenance of Properties; Rating Agency Surveillance.
(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. EPR shall continue to directly own 100% of EPT. EPT shall
continue to own a controlling common membership interest of EPTGS. EPTGS
shall continue to own directly one hundred percent (100%) of the Borrower.
(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
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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.7.6 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 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 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 Lender. 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 Lender 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)
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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
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 Lender evidence of insurance evidencing the
existence of all such insurance, such certificates to be in form and
substance reasonably satisfactory to Lender, 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 Lender. 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 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 Lender, Borrower shall cause
certificates of insurance evidencing the Policies specified in 7.7(a)
accompanied by evidence satisfactory to
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Lender 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 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 Lender and any other party named
therein as an additional insured;
(iii) The issuers thereof shall give written notice to Agent if
the Policy has not been renewed thirty (30) days prior to its
expiration; and
(iv) Lenders shall not be liable for any Insurance Premiums
thereon or subject to any assessments thereunder.
(f) If at any time Lenders are not in receipt of written evidence that
all insurance required hereunder is in full force and effect, Lenders shall
have the right, without notice to any Obligor, to take such action as
Lenders deems necessary to protect their interest in each Mortgaged
Property, including the obtaining of such insurance coverage as Lender in
its sole discretion deems appropriate. All premiums incurred by Lenders in
connection with such action or in obtaining such insurance and keeping it
in effect shall be paid by Borrower to Lenders 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. 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 Non-Advance Condition 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,
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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 Non-Advance Condition 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
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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.7.7 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
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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.7.8 Inspection of Properties and Books. The Borrower and the Guarantors
will, and will cause its Subsidiaries to, permit the Agent or any representative
designated by the Agent, 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 Non-Advance
Condition 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.7.9 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.
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ss.7.10 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.7.11 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.
ss.7.12 Leases of the Property. Neither the Borrower nor any 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 sole discretion.
ss.7.13 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.7.14 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.7.15 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 the 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
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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
Borrower's 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.7.16 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.
ss.7.17 Intentionally deleted.
ss.7.18 Interest Rate Contract. From and after the date of this Agreement,
the Borrower shall at all times maintain in full force and effect the Interest
Rate Contract described in ss.10.16. The Borrower shall upon the request of the
Agent provide to the Agent evidence that such Interest Rate Contract is in
effect.
ss.7.19 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.7.20 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
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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.7.21 Cooperation with Rating Agencies. Borrower agrees upon Agent's
request, to meet with representatives of the Rating Agencies in connection with
the Facility to discuss the business and operations of each Mortgaged Property
and, in that regard, agrees to cooperate with the reasonable requests of the
Rating Agencies including, without limitation, delivering any existing
environmental materials relating to the Mortgaged Properties in Borrower's or
Guarantor's possession.
ss.7.22 Ground Leases. Borrower and any applicable 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 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 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 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 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
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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 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
Note 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 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
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 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 Guarantor, as
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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 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 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 Guarantor,
or any affiliate of Borrower or Guarantor, shall be accomplished by
Borrower or any such 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 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 Guarantor, as applicable,
unconditionally assigns, transfers and sets over to Agent all of
Borrower'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 shall proceed jointly or in the
name of Borrower 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
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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 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 7.22(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 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 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 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 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.
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(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 Guarantor or its
Subsidiaries under any condition or obligation contained in any
Qualified Ground Lease for which such Borrower, 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 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
(iii) 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
(iv) Borrower'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 performance and observance of the terms,
covenants and conditions of any Qualified Ground Lease.
(o) Borrower or any applicable 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 Guarantor shall not be required to
exercise any particular such option or right to renew or extend to the
extent Borrower or any applicable 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 Guarantor
to forego exercising such option or right to renew or extend. If Borrower
or any applicable Guarantor shall fail to exercise any such option or right
as aforesaid, Agent may exercise the option or right as Borrower's or
Guarantor's agent and attorney-in-fact as provided above in Agent's own
name or
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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 as
true and correct, as further security to Agent, until all of the
obligations are fully paid and performed.
(q) Borrower or any applicable 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 covenants and agrees that, so long as any Loan or Note is
outstanding or any of the Lenders has any obligation to make any Loans:
ss.8.1 Restrictions on Indebtedness. The Borrower will not create, incur,
assume, guarantee or be or remain liable, contingently or otherwise, with
respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan
Documents;
(b) current liabilities of the Borrower, the 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 Non-Advance Condition;
(e) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
and
76
(f) Indebtedness arising under the Interest Rate Contract entered into
pursuant to ss.10.16.
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.8.1(d) or ss.8.1(g);
(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 the Hedge Obligations; and
77
(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 Xxxxx'x Investors Service, Inc. or by Standard & Poor's
Corporation at not less than "P 1" if then rated by Xxxxx'x 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 Xxxxx'x Investors Service, Inc.
or by Standard & Poor's Corporation at not less than "AA" if then rated by
Xxxxx'x 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;
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(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 purposes or a related
purpose, including xxxxxxx 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, (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 Non Advance Condition 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
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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
80
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 xxxxx 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 Funds from Operations
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%)
Funds from Operations test set forth in the preceding sentence) in order to
enable EPR to repurchase common shares of EPR so long as (i) any such
repurchase 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 and (iii) no Event of Default shall occur as a result of any
such repurchase;
(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
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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 owns a
Minority Interest or through other Investments), in the development of
properties without the prior written consent of the Required Lenders in their
sole discretion.
ss.8.10 Restriction on Prepayment of Indebtedness. The 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 except the Interest
Rate Contracts permitted pursuant to ss.8.1.
ss.8.13 Subsidiary Guarantees and Pledges. Any Subsidiaries of EPR which
including direct or indirect Subsidiaries, 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
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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.9. FINANCIAL COVENANTS.
The Borrower and EPR covenant and agree that, so long as any Loan or any
Note is outstanding or any Lender has any obligation to make any Loans, they
shall be in compliance with the following Financial Covenants. ss.9.2 through
ss.9.6 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.
ss.9.1 Borrowing Base. The outstanding principal balance of the Loans shall
not be greater than and shall 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 EBITDA to Debt Service shall not be less than
2.00:1.00.
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, in the aggregate, to Total Asset Value
shall not exceed 10%; (B) Investments in construction (total budgeted cost) 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 Minimum Consolidated Tangible Net Worth.
ss.9.6 Interest Rate Protection. 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 to FFO shall not
exceed ninety percent (90%), measured on a rolling four-quarter basis, provided
however, as long as there is no 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).
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ss.10. CLOSING CONDITIONS.
The obligation of the Lenders to establish the Facility and make the Loans
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
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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 Non-Advance Condition 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 Acquisition of Interest Rate Contract. The Borrower shall acquire
within sixty (60) days from the date of this Agreement, an Interest Rate
Contract reasonably satisfactory to the Agent for the term of the Loan on a
notional amount of $35,000,000.00 with a LIBOR cap of not more than six (6%)
percent. The term of the Interest Rate Contract shall not expire before the
Maturity Date. The Interest Rate Contract shall be provided by any Lender or
other financial institution that has unsecured, uninsured and
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unguaranteed long-term debt which is rated at least A-3 by Xxxxx'x or at least
A- by S&P
ss.10.17. Estoppels. The Agent shall have received estoppel letters from
all Tenants, 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 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 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 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, whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
ss.11.1 Prior Conditions Satisfied. All conditions set forth in ss.10 shall
continue to be satisfied as of the date upon which any Loan is to be made.
ss.11.2 Representations True; No Default. With the exception of Third Party
Information, each of the representations and warranties made by or on behalf of
the Borrower, the Guarantors or any of its Subsidiaries contained in this
Agreement, the
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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 Non-Advance Condition or
Event of Default shall have occurred and be continuing.
ss.11.3 No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan.
ss.11.4 Governmental Regulation. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System in connection with any Loan.
ss.11.5 Proceedings and Documents. All proceedings in connection with such
Loan shall be reasonably satisfactory in substance and in form to the Agent, and
the Agent's counsel in form and substance and the Agent shall have received all
information and such counterpart originals or certified or other copies of such
documents and such other certificates, opinions, assurances, consents, approvals
or documents as the Agent and the Agent's counsel may reasonably require.
ss.11.6 Borrowing Documents. The Agent shall have received a fully
completed Loan Request for such Loan and the other documents and information
(including, without limitation, a Borrowing Base/Credit Event Amount Certificate
and a Compliance Certificate) as required by ss.2.7.
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 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
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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.12. EVENTS OF DEFAULT; ACCELERATION; ETC.
ss.12.1 Events of Default and Acceleration. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest on the Loans, or any
other sums due hereunder or under any of the other Loan Documents
(excluding payments due under ss.12.1(a) above) within five (5) days after
the same shall become due and payable, on any fixed date for payment or
otherwise, provided however that such grace period shall not be applicable
where any interest payment is due at the stated date of maturity or any
accelerated date of maturity;
(c) the Borrower shall fail to comply with the covenant contained in
ss.9.1 and 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 shall fail to comply with any covenant contained in
ss.9.2 through ss.9.7 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, or in any other
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document or instrument delivered pursuant to or in connection with this
Agreement, any advance of a Loan, or any of the other Loan Documents other
than constituting or based upon Third Party Information on which Borrower,
Guarantor or any of 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
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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
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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 of Control shall occur; or
(s) an Event of Default 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 Revolving Line
of Credit and/or declare all amounts owing with respect to this Agreement, the
Notes, and the other Loan Documents (including prepayment penalties or yield
maintenance fees) to be, and they shall thereupon forthwith become, immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; provided that in
the event of any Event of Default specified in ss.12.1(h), ss.12.1(i) or
ss.12.1(j), all such amounts shall become immediately due and payable
automatically and without any requirement of presentment, demand, protest or
other notice of any kind from any of the Lenders or the Agent.
Notwithstanding anything to the contrary contained herein, the occurrence
of any one of the aforementioned terms or conditions in this Section 12.2, 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 "Non-Advance Condition."
ss.12.2 Limitation of Cure Periods.
(a) In the event that there shall occur any Non-Advance Condition
under ss.12.1(c), then within five (5) Business Days after receipt of
notice of such Non-Advance Condition from the Agent or the Required Lenders
the Borrower may elect to cure such Non-Advance Condition 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 Non-Advance Condition 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 Non-Advance Condition 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
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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 Non-Advance Condition 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 Non-Advance Condition from the Agent or the Required Lenders
the Borrower may elect to cure such Non-Advance Condition by electing to
remove such Mortgaged Property from the Credit Event Maximum Outstanding
Amount and the Borrowing Base and reduce the outstanding Loans by the
amount of the Credit Event Maximum Outstanding Amount attributable to such
Mortgaged Property, or by substituting for such Mortgaged Property
additional Collateral consisting of Potential Collateral for the Collateral
to which such Non-Advance Condition relates (provided that the value of
such Collateral Replacement is such that after acceptance thereof, the Loan
is in compliance with the Credit Event Maximum Outstanding Amount and 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 Non-Advance Condition 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 Non-Advance
Condition immediately shall constitute an Event of Default. In the event
that the Borrower shall elect to cure any Non-Advance Condition in any
covenant contained in ss.9.2 through ss.9.7, 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. 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
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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
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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 Section 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
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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
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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
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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 Xxxxx'x 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 Non-Advance Condition 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 Xxxxx'x or not
less than "A"
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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.
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.
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ss.14.12 Reliance on Hedge Provider. For purposes of applying payments
received in accordance with ss.12.5, the Agent shall be entitled to rely upon
the trustee, paying agent or other similar representative (each, a
"Representative") or, in the absence of such a Representative, upon the holder
of the Hedge Obligations for a determination (which each holder of the Hedge
Obligations agrees (or shall agree) to provide upon request of the Agent) of the
outstanding Hedge Obligations owed to the holder thereof. Unless it has actual
knowledge (including by way of written notice from such holder) to the contrary,
the Agent, in acting hereunder, shall be entitled to assume that no Hedge
Obligations are outstanding.
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 and shall, upon Borrower's
request, 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
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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 Non-Advance Condition 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,
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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 xxxx 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
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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
102
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, 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 Revolving Credit Lender, such assignee shall have a net worth or
unfunded commitments 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 $5,000,000 (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. 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 ss.14.9.
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
103
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.
104
ss.18.6 No Assignment by Borrower. The Borrower shall not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each of the Lenders.
ss.18.7 Disclosure. Borrower agrees 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:
105
If to the Agent or Fleet:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopy No. (000) 000-0000
If to the Borrower:
30 West Pershing, LLC
c/o Entertainment Properties Trust
00 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Vice President and General Counsel
Telecopy No.: (000) 000-0000
30 West Pershing, LLC
c/o Entertainment Properties Trust
00 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, CFO
Telecopy No.: (000) 000-0000
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
106
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
COMMONWEALTH OF MASSACHUSETTS 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 AGREES THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS 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
107
THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SS.19. THE BORROWER HEREBY
WAIVES 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 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
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 (A) CERTIFIES 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
108
FOREGOING WAIVERS AND (B) ACKNOWLEDGES 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 ACKNOWLEDGES THAT IT HAS HAD AN OPPORTUNITY TO REVIEW
THIS SS.27 WITH LEGAL COUNSEL AND THAT THE BORROWER AGREES 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 Non-Advance Condition 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 Majority 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); 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 principal of or interest on the 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 except as otherwise provided in ss.5.3, ss.5.4,
ss.5.5 or ss.14.11; an amendment OF the definition of Majority Lenders or
Required Lenders or of any requirement for consent by all of the Lenders; any
modification to require a Lender to fund a pro rata share of a request for an
advance of the Loan made by the Borrower other than based on its Commitment
Percentage; an amendment to this ss.29; a waiver of any indemnity of a Lender;
or an amendment of any provision of thiS Agreement or the Loan Documents which
requires the approval of all of the Lenders or the Required Lenders to require a
lesser number of Lenders to approve such action. The provisions of ss.14 may not
be amended without the written consent of the Agent. No waiveR shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Agent or
any Lender in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon any of the
Borrower or the Guarantors shall entitle the Borrower or
109
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 the holders of the Hedge Obligations, 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.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
110
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: EPT Gulf States, LLC, its sole
member, a Delaware limited liability
company
By:
-------------------------------------------
Name:
Title:
GUARANTOR:
ENTERTAINMENT PROPERTIES
TRUST, a Maryland real estate
investment trust
By:
-------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
individually as a Lender and as Agent
By:
-------------------------------------------
Name:
Title:
111
TABLE OF CONTENTS
Page
EXHIBITS AND SCHEDULES
----------------------
Exhibit A FORM OF TERM LOAN NOTE
Exhibit B FORM OF REVOLVING CREDIT NOTE
Exhibit D FORM OF ASSIGNMENT OF LEASES AND RENTS
Exhibit E FORM OF UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
Exhibit F FORM OF INDEMNITY AGREEMENT REGARDING HAZARDOUS MATERIALS
Exhibit G FORM OF MORTGAGE
Exhibit H FORM OF REQUEST FOR REVOLVING CREDIT LOAN
Exhibit J FORM OF BORROWING BASE/CREDIT EVENT AMOUNT CERTIFICATE
Exhibit K FORM OF COMPLIANCE CERTIFICATE
Exhibit L FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Schedule 1 COMMITMENTS
Schedule 3 ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS
Schedule 6.3 LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
Schedule 6.4 THEATRE REVENUE STATEMENTS
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
i
TABLE OF CONTENTS
(continued)
Page
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
ii
EXHIBIT A
---------
FORM OF TERM LOAN NOTE
$______________ ____________________, 2002
FOR VALUE RECEIVED, the undersigned, ________________, a ________________
("Maker"), hereby promises to pay to ______________________, ("Payee"), or
order, in accordance with the terms of that certain Master Credit Agreement,
dated as of May ___, 2002, as from time to time in effect, among Maker, Fleet
National Bank, for itself and as Agent, and such other Lenders as may be from
time to time named therein (the "Credit Agreement"), to the extent not sooner
paid, on or before the Maturity Date, the principal sum of _________________
($__________), with daily interest from the date thereof, computed as provided
in the Credit Agreement, on the principal amount of Term Loans 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 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
This Note is one of one or more Term Loan 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 Maker 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
1
amount equal to any excessive interest shall be applied to the reduction of the
principal balance of the Obligations of the undersigned Maker and to the payment
of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations of the undersigned Maker, such excess shall be
refunded to the undersigned Maker. 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 Maker (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 Maker
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 Commonwealth of Massachusetts (without giving effect to the conflict of laws
rules of any jurisdiction).
The undersigned Maker 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.
IN WITNESS WHEREOF, the undersigned has duly executed this Note on the day
and year first above written.
------------------,
a _________________
By:
-----------------------------
Name:
Title:
2
EXHIBIT B
---------
FORM OF REVOLVING CREDIT NOTE
$______________ ____________________, 2002
FOR VALUE RECEIVED, the undersigned, _______________________________, a
________________________ ("Maker"), hereby promises to pay to ________________
__________________, ("Payee"), or order, in accordance with the terms of that
certain Master Credit Agreement, dated as of May __, 2002, as from time to time
in effect, among Maker, Fleet National Bank, for itself and as Agent, and such
other Lenders as may be from time to time named therein (the "Credit
Agreement"), to the extent not sooner paid, on or before the Maturity Date, the
principal sum of _________________ ($__________), 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 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
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 Maker 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
1
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 Maker and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations of the undersigned Maker, such excess shall be
refunded to the undersigned Maker. 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 Maker (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 Maker
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 Commonwealth of Massachusetts (without giving effect to the conflict of laws
rules of any jurisdiction).
The undersigned Maker 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.
IN WITNESS WHEREOF, the undersigned has duly executed this Note on the day
and year first above written.
---------------------------------
a _________________
By:
----------------------------------
Name:
Title:
2
EXHIBIT E
---------
FORM OF UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FLEET NATIONAL BANK
GUARANTY
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned, _______________________, a
_________________________ duly organized under the laws of __________________,
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 30 West Pershing, LLC, a limited liability company duly
organized under the laws of the State of Missouri (the "Borrower") to FLEET
NATIONAL BANK, a national banking institution having a place of business at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Bank").
WHEREAS, the Borrower has entered into a Master Credit Agreement dated as
of May 3, 2002 with the Bank (as amended or otherwise modified from time to
time, the "Credit Agreement") in connection with a credit facility in the total
aggregate principal amount of Fifty Million and 00/100 ($50,000,000.00), (the
"Loan").
WHEREAS, the Guarantor is the sole shareholder of the Borrower.
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
Banks to enter into the Credit Agreement and to make extensions of credit
thereunder, the Guarantor agrees as follows:
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,
1
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. .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 or indirectly 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.
2
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.
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
3
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.
4
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 heirs, 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 on any one
occasion shall 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 Commonwealth of Massachusetts. The undersigned submits to
the jurisdiction of the courts of The Commonwealth of Massachusetts 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
5
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 Massachusetts the undersigned hereby designates
the Secretary of Commonwealth of Massachusetts 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.
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 ________, 20__.
Witnessed: [Guarantor]
------------------------------------ By:
-----------------------------
Name:
Title:
Address:
6
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 Master Revolving Credit
Agreement dated as of May____________, 2002 (as the same may hereafter be
amended, the "Credit Agreement"), among ________________ (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
1
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 Non-Advance Condition or Event
of Default has occurred and is continuing.
5. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in the Credit Agreement have been satisfied.
6. 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 _______________, 2002.
--------------------,
a ____________________
By:
----------------------------
Name:
Title:
2
EXHIBIT J
---------
FORM OF BORROWING BASE/CREDIT EVENT AMOUNT CERTIFICATE
Date: __________, 20__
I. Mortgaged Properties Asset Value:
(A.) Lesser of
(1) Aggregate Mortgaged Properties
Net Operating Income; $___________
OR
(2) Exhibitor's EBITDAR $___________
(3) Divided by 0.11 (capitalization rate) $___________
(B.) AND/OR, as applicable
(1) Option/Transfer Restriction Amount $___________
(2) Divided by .11 (capitalization rate) $___________
(C.) TOTAL of A plus B = Mortgage Property Asset Value $___________
(D.) Multiplied by Sixty Percent (60%) $___________
II. Maximum Commitment Amount $50,000,000.00
III. Aggregate Underwriteable Cash Flow:
(A.) Lesser of
(1) Aggregate Mortgaged Properties
Net Operating Income; $___________
OR
(2) Exhibitor's EBITDAR $___________
(3) Divided by 1.75 $___________
(4) Divided by effective LIBOR Rate,
plus 300 basis points $___________
1
IV. Credit Event Amount:
(A.) Mortgaged Property Asset Value $___________
(B.) Multiplied by Fifty Percent (50%) $___________
V. The LESSER OF I, II, III or IV =
TOTAL COLLATERAL AVAILABILITY $___________
VI. TOTAL LOANS OUTSTANDING
(A.) Total Line of Credit outstanding $___________
(B.) Total Term Loans outstanding $___________
(C.) Total Letters of Credit outstanding $___________
(C.) (A.) plus (B.) plus (C).=TOTAL OF LOANS OUTSTANDING $___________
TOTAL EXCESS AVAILABILITY/(SHORTFALL) $___________
(Total Collateral Availability less Total Loans Outstanding)
2
EXHIBIT K
---------
FORM OF COMPLIANCE CERTIFICATE
Fleet National Bank, as Agent
-----------------
==============
Attn: _________________
Ladies and Gentlemen:
Reference is made to the Master Revolving Credit Agreement dated as of
May____________, 2002 (as the same may hereafter be amended, the "Credit
Agreement") by and among ________________ (the "Borrower"), 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 is furnishing to you herewith
(or have most recently furnished to you) the consolidated financial statement of
Borrower 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 covered thereby at the
date thereof and the results of its operations for the periods covered thereby,
subject in the case of interim statements only to normal year-end audit
adjustments.
This certificate is submitted in compliance with requirements of ss.5.4(b),
ss.7.3(c), ss.7.4(e), Article 9 or ss.10.12 OF the Credit Agreement. If this
certificate is provided under a provision other than ss.7.3(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 Non-Advance Condition or
Event of Default. (Note: If the signer does have knowledge of any Non-Advance
Condition or Event of Default, the form of certificate should be revised to
specify the Non-Advance Condition 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.
1
IN WITNESS WHEREOF, the undersigned have duly executed this Compliance
Certificate this _____ day of ______________, 200__.
--------------,
a ____________________
By:
------------------------
Name:
Title:
2
EXHIBIT L
---------
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to that certain Master Credit Agreement dated as of May
3, 2002, (as the same may be amended or modified from time to time, the "Credit
Agreement"), among 30 West Pershing, LLC ("Borrower"), and the other borrowers
named therein, 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 owing to the Assignor which
are outstanding on the effective date, together with unpaid interest accrued on
the assigned Loans to the effective date and the amount, if any, set forth below
of the fees accrued to the effective date for the account of the Assignor. Each
of the Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in the 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, the forms specified in Article 18 of the Credit Agreement, 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 COMMONWEALTH OF MASSACHUSETTS
Date of Assignment:
Legal Name of Assignor:
1
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:
-----------------------
2
EXHIBIT L-1
FORM OF ADMINISTRATIVE QUESTIONNAIRE
Please accurately complete the following information and return via FAX to the
attention of Xxxxx X. XxXxxxxxxx, Director, Structured Real Estate, Fleet
National Bank, as soon as possible.
Fax Number: (000) 000-0000
LEGAL NAME TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION - DOMESTIC LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Backup Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
TAX WITHHOLDING:
Non Resident Alien Y*
* Form 4224 Enclosed
Tax ID Number
1
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 (000) 000-0000.
PARTICIPANT INFORMATION
Participant Name:
Address:
Primary Contact:
Title:
Department:
Phone Number:
Facsimile 9:
Alternate Contact:
Phone Number:
Facsimile #:
2
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
3
SCHEDULE 1
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LENDERS AND COMMITMENTS
Commitment
Commitment Percentage
---------- ----------
Fleet National Bank $50,000.00 100%
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
LIBOR Lending Office:
Same as above
1
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.
1
(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.
2
(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.
3
SCHEDULE 6.3
------------
LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
1
SCHEDULE 6.5
------------
MATERIAL CHANGES TO MORTGAGED PROPERTIES
1
SCHEDULE 6.7
------------
PENDING LITIGATION OF BORROWER
1
SCHEDULE 6.15
-------------
LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES
1
SCHEDULE 6.20
-------------
ENVIRONMENTAL RELEASES
1
SCHEDULE 6.21(a)
----------------
SUBSIDIARIES OF THE GUARANTORS
1
SCHEDULE 6.21(b)
----------------
AFFILIATES OF THE BORROWER, THE GUARANTORS AND THEIR SUBSIDIARIES
1
SCHEDULE 6.22
-------------
MONETARY DEFAULTS UNDER LEASES
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SCHEDULE 6.25
-------------
MATERIAL LOAN AGREEMENTS
1
