UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X} ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year (six weeks) ended December 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to
_______________.
COMMISSION FILE NUMBER 1-13561
ENTERTAINMENT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
MARYLAND 43-179877
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
ONE KANSAS CITY PLACE
1200 MAIN STREET, SUITE 3250, KANSAS CITY, MISSOURI 64105
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (816) 472-1700
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of Class Name of each exchange on which registered
Common Shares of Beneficial Interest, New York Stock Exchange
par value $.01 per share
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None.
<PAGE>
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL
REPORTS REQUIRED TO BE FILED BY SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 DURING THE PRECEDING 12 MONTHS
(OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS REQUIRED TO
FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS. YES [X] NO [ ]
INDICATE BY CHECK MARK IF DISCLOSURE OF DELINQUENT FILERS
PURSUANT TO ITEM 405 OF REGULATION S-K IS NOT CONTAINED HEREIN,
AND WILL NOT BE CONTAINED, TO THE BEST OF REGISTRANT'S KNOWLEDGE,
IN DEFINITIVE PROXY OR INFORMATION STATEMENTS INCORPORATED BY
REFERENCE IN PART III OF THIS FORM 10-K OR ANY AMENDMENT TO THIS
FORM 10-K. [ ]
THE AGGREGATE MARKET VALUE OF THE COMMON SHARES OF BENEFICIAL
INTEREST OF THE REGISTRANT HELD BY NON-AFFILIATES ON MARCH 17,
1998, WAS $264,054,125 (BASED ON THE CLOSING PRICE PER SHARE AS
QUOTED ON THE NEW YORK STOCK EXCHANGE ON MARCH 17, 1998). AT
MARCH 17, 1998, THERE WERE 13,860,100 COMMON SHARES OF BENEFICIAL
INTEREST OUTSTANDING.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement for the 1998 Annual
Meeting of Shareholders to be filed with the Commission pursuant
to Regulation 14A are incorporated by reference in Part III of
this Form 10-K.
<PAGE>
Part I
ITEM 1. BUSINESS
GENERAL
Entertainment Properties Trust (the "Company") was formed on
August 22, 1997 as a Maryland real estate investment trust
("REIT") to capitalize on the opportunities created by the
development of destination entertainment and entertainment-
related properties, including megaplex movie theatre complexes.
The Company completed an initial public offering ("IPO") of its
common shares of beneficial interest ("Shares") on November 18,
1997.
The Company believes entertainment is emerging as an important
and discrete sector of the retail real estate industry and, as a
result of the Company's focus on properties in this sector and
the industry relationships of its management, believes it will
have a competitive advantage in providing capital to operators of
such properties. The principal business strategy of the Company
is to acquire a portfolio of high-quality properties leased to
entertainment and entertainment-related business operators,
generally under long-term triple net leases that require the
tenant to pay substantially all expenses associated with the
operation of the property. The Company's initial focus is
primarily on megaplex theatre complexes and entertainment themed
retail centers ("ETRC's").
Megaplex theatres typically have at least 14 screens with
predominantly stadium-style seating (seating with an elevation
between rows to provide unobstructed viewing) and are generally
equipped with amenities that significantly enhance the audio and
visual experience of the patron. The Company believes the
development of megaplex theatres has accelerated the obsolescence
of many existing movie theatres by setting new standards for
moviegoers, who, in the Company's experience, have demonstrated
their preference for the more attractive surroundings, wider
variety of films, better customer service and more comfortable
seating typical of megaplex theatres. As a result of the
significant capital commitment involved in building such
properties and the experience and industry relationships of the
Company's management, the Company believes it will have
opportunities to provide capital to businesses that seek to
develop and operate such properties but would prefer to lease
rather than own the properties. The Company believes its ability
to finance such properties will enable it to grow and diversify
its asset base.
The Company has acquired an initial portfolio of thirteen
megaplex theatre properties (the "Properties") from subsidiaries
of AMC Entertainment Inc. ("AMCE"), including American Multi-
Cinema, Inc. ("AMC"), for an aggregate purchase price of
approximately $274 million. Eleven of the Properties were
acquired in 1997 and two Properties were acquired in the first
quarter of 1998. Twelve of the Properties were described in the
Company's IPO Prospectus as the "Initial Properties" to be
acquired by the Company, and one Property was among the "Option
Properties" described in the Prospectus. The Properties have an
aggregate of 312 screens and 60,820 seats. Each Property is
located in a large metropolitan market and has been constructed
since May 1995. Four of the Company's Properties were among the
forty highest grossing theatres in the United States in 1997.
Each of the Company's existing Properties has been leased to AMC,
which is operating each Property as a megaplex theatre complex.
The Company's existing leases with AMC (the "Leases") provide for
aggregate annual rentals of approximately $28.8 million, or an
average annual rental of approximately $2.2 million per Property.
Each Lease has an initial term of 13 to 15 years, with AMC
obligated to operate the Property as a movie theatre for not less
than 10 years. Each Lease is a "triple-net" lease, under which
AMC is required to pay substantially all expenses associated with
the operation and maintenance of such Property.
<PAGE>
AMC's performance under each Lease has been guaranteed by AMCE,
the parent of AMC.
The Company has the option to purchase four additional megaplex
theatre properties (the remaining "Option Properties") from AMCE
and its affiliates for a purchase price equal to the cost to AMCE
of developing and constructing such properties (estimated to
aggregate approximately $138 million if all the remaining Option
Properties are purchased). The remaining Option Properties have
an aggregate of 134 screens and approximately 27,830 seats and
are currently under construction, with the last theatre expected
to be completed and opened by October 1998. The Option
Properties, when and if acquired by the Company, will be leased
to AMC on a triple-net basis on terms similar to the Company's
existing Leases with AMC. AMC's performance under each Option
Property lease will be guaranteed by AMCE.
A more detailed description of the Company's existing portfolio
of Properties, the Option Properties and the terms of the
Company's Leases with AMC appears in Item 2 of this Form 10-K.
The Company's existing Properties and the remaining Option
Properties represent all of the AMCE-owned (or ground-leased)
megaplex theatres in existence or currently under construction,
with the exception of certain properties that are not readily
transferable to the Company.
AMCE is one of the leading theatrical exhibition companies in
North America measured by revenues, and is an industry leader in
the development of megaplex theatre complexes. In the fiscal
year ended April 3, 1997, AMCE's consolidated revenues were
$749,597,000. As of October 2, 1997, AMCE, through its
subsidiaries, operated 222 theatres with an aggregate of 2,048
screens located in 22 states, the District of Columbia, Portugal
and Japan. Approximately 63% of the screens operated by AMCE are
located in Florida, California, Texas, Missouri and Michigan and
approximately 73% of AMCE's domestic screens are located in areas
among the 20 largest U.S. "Areas of Dominant Influence"
(television markets as defined by Arbitron Company).
For a period of five years following the closing of the IPO, the
Company will have a right of first refusal and first offer to
purchase and lease back to AMC any megaplex theatre and related
entertainment property acquired or developed and owned (or
ground-leased) by AMCE or its subsidiaries, exercisable upon
AMCE's intended disposition of the property. This right to
purchase is intended to give the Company access to new projects
developed by AMCE and its subsidiaries, thereby providing
opportunities for future growth, although AMCE may lease
entertainment and entertainment-related properties from owners
other than the Company.
In addition to the substantial growth potential and predictable
revenue stream offered by the Company's relationship with AMC,
the Company believes there will be opportunities to acquire high
quality entertainment and entertainment-themed properties from
operators other than AMC. See "Markets and Competition," this
Item.
As a real estate investment trust, the Company intends primarily
to lease its properties to tenants on a triple-net basis and does
not intend to operate its properties. Accordingly, the Company
intends that its tenants, and not the Company, will assume the
primary operating risks involved in the operation of its
properties. The Company's existing Leases with AMC provide (and
it is intended that future leases with AMC and other operators
will provide) for constant rental payments with periodic
escalators, together with an obligation to pay percentage rentals
based on gross receipts at such time as certain baseline revenues
are achieved by the tenant.
The Company has obtained a $200 million unsecured line of credit
from a syndicate of banks (the "Bank Credit Facility"), which has
been used in part to acquire one of the Properties, with the
remaining funds to be used primarily for the acquisition of
additional entertainment and entertainment-related properties
(including the <PAGE> remaining Option Properties) and general corporate
purposes. See"Management's Discussion and Analysis of Financial
Condition and Results of Operations" in Item 7 of this Form 10-K.
BUSINESS OBJECTIVES AND STRATEGIES
The Company's business objectives are to achieve predictable and
increasing Funds from Operations ("FFO") per Share (defined as
net income plus depreciation divided by the number of Shares
outstanding) and enhance shareholder value by acquiring and
developing a diversified portfolio of high-quality properties
leased to entertainment and entertainment-related business
operators, generally under long-term triple net leases. The
Company intends to achieve these objectives through
implementation of the Growth Strategies, Operating Strategies and
Capitalization Strategies described below:
GROWTH STRATEGIES
. Acquire the remaining Option Properties and lease-back such
Properties to AMC.
. Purchase additional AMC-operated properties pursuant to a
Right of First Refusal and First Offer to Purchase Agreement
between the Company and AMCE (the "AMCE Right to Purchase
Agreement").
. Develop or acquire additional megaplex theatre properties
and lease such properties to other qualified theatrical
exhibitors.
. Develop or acquire, and lease to qualified operators or
master tenants, entertainment themed retail centers
("ETRCs") and single-tenant out-of-home location based
entertainment and entertainment-related properties.
OPTION PROPERTIES. The Company has the option to acquire up
to four additional megaplex theatres currently under
construction by AMC (the "Option Properties") for an
aggregate estimated purchase price of approximately $138
million. The Option Properties are expected to be completed
between April 1998 and October 1998. It is intended that
the acquisition of the Option Properties and any related
land parcels will be funded by the Bank Credit Facility.
The Company intends to lease the Option Properties to AMC
pursuant to leases that provide for annual base rent
escalation and, if revenues exceed the baseline amounts,
annual percentage rent.
FUTURE AMCE PROPERTIES. Pursuant to the AMCE Right to
Purchase Agreement, the Company has the right of first
refusal and first offer to acquire and lease back to AMC any
megaplex theatre and related entertainment property acquired
or developed and owned (or ground-leased) by AMCE or its
subsidiaries, exercisable for a period of five years
following the closing of the IPO, upon AMCE's intended
disposition of the property. The Company expects that AMCE
and its subsidiaries will continue to acquire and/or develop
and own such properties, although AMCE will be free to lease
entertainment and entertainment-related properties from
owners other than the Company.
OTHER MEGAPLEX PROPERTIES. In addition to the anticipated
future growth in properties developed by AMCE, the Company
believes additional megaplex theatres will be developed by
other operators. The Company intends to pursue
opportunities to acquire high-quality properties from other
operators with <PAGE> a strong market presence and believes it will
have opportunities to purchase megaplex theatres developed
by such operators. See "Markets and Competition," this
Item.
ENTERTAINMENT THEMED RETAIL CENTERS. The Company intends to
pursue opportunities to acquire ETRCs, which are generally
large multi-tenant retail developments that incorporate such
elements as megaplex theatres, restaurants, book and/or
music superstores, interactive entertainment venues and
other specialty retail that is oriented to entertainment or
leisure-time activities. The Company believes the most
important component of an ETRC is a megaplex theatre due to
its ability to generate substantial customer traffic to the
site. Such centers typically attempt to provide a family
entertainment experience by creating an atmosphere of fun
and excitement. The Company believes ETRCs broaden the
traditional retail shopping concept and attract a greater
number of customers to spend more time and money at a single
location. The Company also believes access to capital in
this developing market is generally limited for operators
other than the largest entertainment companies. As a result
of the significant capital commitment involved in building
such properties and the experience and relationships of the
Company's management, the Company believes it will have
opportunities to provide capital to businesses that seek to
develop and operate such properties but would rather lease
than own the properties. The Company's ability to finance
the acquisition and development of such properties should
enable it to grow and diversify its asset base.
The Company believes it will have opportunities to provide
capital to developers and operators of entertainment and
entertainment-related properties due to its strong capital base
of shareholders' equity, the funds available under its Bank
Credit Facility and its potential access to capital markets. The
Company also believes it should be in a position to acquire new
properties for cash, Shares or a combination thereof, creating
the opportunity for transactions structured on a tax-deferred
basis to the seller (through a subsidiary partnership or
otherwise) and thereby potentially reducing the price that would
be paid in all-cash transactions.
OPERATING STRATEGIES
. Purchase single-tenant properties supported by long-term
leases or multi-tenant properties that are substantially
leased to minimize the risks inherent in initial leasing.
. Structure leases, where possible, on a triple net or similar
basis under which the tenants bear the principal financial
and operational risks of the properties.
. Provide in the leases for contractual increases in rent
and/or percentage rent based upon a percentage of a tenant's
gross sales over a pre-determined level.
. Develop and maintain long-term working relationships with
theatre, restaurant, retail and other entertainment-related
business operators.
. Diversify the Company's asset base by property type and
tenant.
LEASE RISK MINIMIZATION. To avoid initial lease-up risks
and produce a predictable income stream, the Company intends
to acquire single-tenant properties that are leased under
long-term leases or multi-tenant properties that are
substantially leased. The Company's existing Properties
are, and the Option Properties (to the extent acquired) will
be leased to AMC with initial terms ranging from 13 to 15
years. <PAGE> The Company believes its willingness to make long-
term investments in properties offers tenants financial
flexibility and allows tenants to allocate capital to their
core businesses.
LEASE STRUCTURE. The Company intends to structure leases,
where possible, on a triple-net or similar basis under which
the tenants bear the principal portion of the financial and
operational responsibility for the properties. During each
lease term and any renewal periods, the Company intends to
provide for annual increases in rent and/or provide for
percentage rent based upon a percentage of the tenant's
gross sales over a pre-determined level.
TENANT RELATIONSHIPS. The Company will seek to develop and
maintain long-term working relationships with theatre,
restaurant and other entertainment-related business
operators (including AMC) by providing capital for multiple
properties on a national basis, thereby adding additional
efficiency and value to such operators and the Company. In
addition to AMC, the Company will target tenants whose
competitive position and financial strength are deemed
adequate to enable them to meet their obligations throughout
the lease terms.
PORTFOLIO DIVERSIFICATION. The Company will endeavor to
diversify its asset base by property type and tenant. In
pursuing this diversification strategy, the Company will
target theatre, restaurant, retail and other entertainment-
related business operators that management views as leaders
in their market segments and that have the financial
strength to compete effectively and perform under their
leases with the Company. As ETRCs include an increasing
number of diverse tenants, the Company expects it will be
able to serve the widening demands of this market and that
its portfolio will reflect these additional complementary
businesses.
CAPITALIZATION STRATEGIES
. Employ moderate leverage, pursuant to the Bank Credit
Facility or otherwise, to fund additional acquisitions.
. Maintain a debt to total market capitalization ratio of less
than 50%.
. Pay regular distributions and periodically increase
distributions as increases in FFO and Cash Available for
Distribution (net earnings plus depreciation and
amortization minus capital expenditures and principal
payments on indebtedness) are experienced.
MODERATE USE OF LEVERAGE; DEBT TO TOTAL MARKET
CAPITALIZATION. The Company will seek to enhance
shareholder return through the moderate use of leverage.
The Company intends to use the $200 million Bank Credit
Facility to fund the acquisition of the remaining Option
Properties, related land parcels and additional properties
consistent with the Company's investment policies. In
addition, the Company may in the future obtain secured debt
and/or refinance its existing debt with long-term debt or
the issuance of additional equity as circumstances warrant.
The Company expects to maintain a debt to total market
capitalization ratio (i.e., total debt of the Company as a
percentage of equity market value plus total debt) of less
than 50%.
PAYMENT OF REGULAR DISTRIBUTIONS. The Company has paid and
intends to continue paying quarterly distributions to its
shareholders. Among the factors the Board of Trustees will
consider in setting the distribution rate will be the
Company's results of operations, including FFO per Share,
and the <PAGE> Company's Cash Available for Distribution. The
Company expects to periodically increase distributions as
FFO and Cash Available for Distribution increase and as
other considerations and factors warrant.
There can be no assurance the foregoing objectives will be
achieved. See "Cautionary Statement Regarding Forward-Looking
Information" in Item 7 of this Form 10-K.
MARKETS AND COMPETITION
The Company competes for real estate financing opportunities
with traditional financial sources such as banks, non-bank
providers of leveraged lease and other structured finance
facilities, equity markets and insurance companies, as well as
other REIT's. The popularity of REIT's as real estate financing
vehicles, and thus the competition for high quality acquisition
opportunities, has increased in recent years and is expected to
continue to do so in the foreseeable future. While the Company
was the first publicly traded REIT formed to specialize in
entertainment-themed properties, other entertainment-oriented
REIT's may enter the market in the future as new megaplex
theatres and ETRC's are developed. The Company believes its
capital base, access to financing and the industry relationships
of its management will enable the Company to compete effectively
for acquisition and financing opportunities.
EMPLOYEES
The Company has six employees, including four executive and
two administrative employees.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
ITEM 2. PROPERTIES
Since November 18, 1997, the effective date of the IPO, the
Company has acquired 13 megaplex theatre Properties from AMC or
its affiliates.
The following table lists the Company's Properties, their
locations, acquisition dates, number of theatre screens, number
of seats, gross square footage, acquisition cost, annual rents
and, where applicable, their national ranking in terms of ticket
revenues:
<TABLE>
<CAPTION>
Building Annual
Acquisition (gross Cost Rent Industry
Property Location Date Screens Seats sq. ft) $000 $000 Ranking/1/
<S> <C> <C> <C> <C> <C> <C> <C>
Grand 24 /2/ Dallas, TX 11/97 24 5,067 98,175 18,600 1,953 6
Mission
Valley 20/3/ San Diego, CA 11/97 20 4,361 84,352 16,300 1,711 4
Promenade 16 /2/ Los Angeles, CA 11/97 16 2,860 129,822 28,500 2,992 37
Ontario
Mills 30 /2/ Los Angeles, CA 11/97 30 5,469 131,534 25,300 2,656 12
Lennox 24 /2/ Columbus, OH 11/97 24 4,412 98,261 12,900 1,354 10
West Olive 16 /2/ St. Louis, MO 11/97 16 2,817 60,418 17,800 1,869 N/A
Studio 30 /2/ Houston, TX 11/97 30 6,032 136,154 26,400 2,772 N/A
Huebner Oaks 24 /2/ San Antonio, TX 11/97 24 4,400 96,004 16,900 1,774 N/A
First Colony 24 /3/ Houston, TX 12/97 24 5,098 107,690 19,100 2,005 N/A
Oakview 24 /3/ Omaha, NE 12/97 24 5,098 107,402 16,700 1,753 N/A
Leawood Town
Center 20/2//4/ Kansas City, MO 12/97 20 2,995 75,224 15,800 1,659 N/A
Gulf
Pointe 30/2//5/ Houston, TX 02/98 30 6,008 130,891 25,800 2,709 N/A
South
Barrington
30/2//6/ Chicago, IL 03/98 30 6,210 130,891 34,500 3,622 N/A
TOTAL 312 60,827 1,386,818 $274,600 $28,829
/1/ Among United States theatres based on ticket revenues for the year ended December 31, 1997, according
to daily grosses collected from participating exhibitors and published to subscribers by Entertainment
Data Incorporated. No ranking is provided for theatres that were not operational during the entire
period.
/2/ Fee simple title acquired
/3/ Third party ground leased Property. Although the Company is the tenant under the ground leases and
has assumed responsibility for performing the obligations thereunder, pursuant to the Leases, AMC is
responsible for performing the Company's obligations under the ground leases.
/4/ The Leawood Town Center property is located in an affluent Kansas suburb of the Kansas City, Missouri
metropolitan area.
/5/ In addition to the theatre property itself, the Company has acquired three pad sites in front of the
theatre which the Company intends to ground lease or sell to restaurant or other entertainment themed
operators.
/6/ Held in the name of a wholly-owned subsidiary of the Company.
<TABLE\>
Each Property has been leased back to AMC in accordance with the
terms of a triple net Lease at the annual rental rate listed
above for each Property. See "Leases," this Item.
<PAGE>
The Purchase Price for each Property was determined by the
management of both AMCE and the Company as the cost of developing
and constructing such Property.
The Lease payment obligations with respect to each Property were
determined by the management of AMCE and the Company and were not
negotiated on an arms-length basis. The Lease payments are based
on an initial capitalization rate of 10.5%, which the Company
believes reflects the fair market value of the Properties to the
Company based on rates for comparable triple net lease
transactions.
The Properties are operated by AMC as megaplex movie theatres
under the terms of each Lease.
THE OPTION PROPERTIES
Certain information regarding each of the remaining Option
Properties, including the purchase price payable by the Company
therefor, is set forth below. The Company acquired one Option
Property, Gulf Pointe 30 in Houston, Texas, in February 1998.
Estimated
Estimated Building Anticipated Purchase
No. of (gross Opening Price
Property Location Screens Seats sq. ft.) Date/1/ ($000)/2/
Cantera 30(4) Chicago, IL 30 6,210 130,757 4/98 34,400
Mesquite
30(3)(4) Dallas, TX 30 6,008 130,891 4/98 23,500
Hampton Town
Center 24(3) Norfolk, VA 24 5,098 107,396 4/98 26,100
Livonia 20 Detroit, MI 20 4,056 85,688 10/98 27,500
TOTAL 134 27,380 585,623 $138,500
/1/ If the Company acquires an Option Property, the Company will
pay the purchase price and AMC will commence paying rent
under the applicable lease on the date such Option Property
is acquired by the Company.
/2/ Purchase prices are estimated but are not expected to
materially change. The actual purchase price for each
Option Property will equal the cost to AMC of developing and
constructing such Property at the time of acquisition by the
Company.
/3/ AMC currently leases such properties from a third party
owner/lessor. The Company has an option to acquire such
properties from the owner/lessor. Such properties will be
acquired without representation or warranty by, or recourse
to, the owner/lessor, and the Company will be responsible
for all transaction costs.
/4/ The Company has the option to acquire the land parcels
adjacent to this theatre if such land parcels are not under
contract for sale or sold at the time of the related theatre
acquisition.
FUTURE AMCE PROPERTIES
It is anticipated that AMCE or its subsidiaries will acquire or
develop additional entertainment or entertainment-related
properties in the future. The Company and AMCE have entered into
the AMCE Right to Purchase Agreement, pursuant to which the
Company has a right of first refusal and first offer to acquire
and lease back to AMC any megaplex theatre and related
entertainment property acquired or developed and owned (or
ground-<PAGE> leased) by AMCE or its subsidiaries, exercisable for a
period of five years following the date of the IPO, upon AMCE's
intended disposition of such property. The purchase price and
the initial annual rental rate on each property leased back to
AMC will be determined through the right of first refusal and
first offer process at the time of such acquisition and lease-back.
LEASES
Each of the Company's existing Properties has been leased-back to
AMC. AMC's obligations under each Lease are guaranteed by AMCE.
The Leases have initial terms ranging from 13 to 15 years (the
"Fixed Term") and may be extended upon the same terms and
conditions for four additional five-year terms (each, an
"Extended Term") at the option of AMC. The Leases are triple net
leases that require AMC to pay substantially all expenses
associated with the operation of the Properties, such as taxes
and other governmental charges, insurance, utilities, service,
maintenance and any ground lease payments. Each Lease requires
that, for a specified period, AMC must operate the Property only
as a movie theatre and for activities incidental thereto.
The rental schedules under the Leases are expected to provide for
a relatively stable source of cash flow and opportunities to
participate in any future growth in revenues experienced by AMC.
The rent for the first year under each Lease is initially set at
a fixed amount and is subject to increase each year by the annual
percentage increase in the Consumer Price Index ("CPI"), not to
exceed 2%, times the base rent applicable to that Property for
the preceding year (the "Base Rent Escalation"). In addition,
AMC is obligated to pay percentage rent on revenues in excess of
a baseline amount ("Annual Percentage Rent"). However, the
Company does not expect to receive any Annual Percentage Rent for
at least five years.
During each Fixed Term, certain obligations, including payment
obligations, of AMC under each Lease is cross-defaulted to each
of the other Leases until AMCE's senior debt obligations or
corporate credit rating are rated investment grade or AMC's
rental payments to the Company represent less than 50% of the
Company's rental income for any fiscal quarter. The Company has
general recourse to AMC under the Leases and to AMCE under its
guarantee of AMC's Lease obligations, but AMC's payment
obligations under the Leases and AMCE's obligations under its
guarantees are not secured by any assets of AMC or AMCE.
Following are narrative descriptions of each of the Company's
existing Properties. All references to national rankings in
theatre gross receipts are derived from information collected
from participating exhibitors and published to subscribers by
Entertainment Data Incorporated.
GRAND 24. The Grand 24 was the first megaplex theatre opened by
AMC in May 1995. It is a free-standing theatre located on a 21.2
acre site at 10110 Technology Boulevard East (in the Stemmons
Crossroads development, at the intersection of I-35 and Northwest
Highway) in Dallas, Texas. The theatre has 98,175 square feet
and 5,067 seats. The theatre site includes a 2,600-space free
parking area and tram service is provided to the theatre. Its
box office has 12 stations, and there are three concessions
stands with 21 total stations. Theatre amenities include stadium
AMC LoveSeat [Trademark] style seating, 46-inch spacing between
rows, SDDS [Trademark], TORUS [Trademark] Compound Curved
Screens, HITS [Trademark] and advance ticket purchase by
TeleTicket [Trademark]. Eight restaurants and clubs are located
near the theatre site. During 1997, the Grand 24 was the sixth
highest grossing theatre in the United States.
Based on the 1990 U.S. Census, there are approximately 460,000
people residing within seven miles of the Grand 24. The Grand 24
site is subject to standard and customary utility and other
easements, certain covenants and <PAGE> restrictions and certain
reciprocal easements regarding access and the construction of a
pedestrian bridge linking the Grand 24 site to adjoining
properties.
MISSION VALLEY 20. The Mission Valley 20 opened in December
1995. It is located in the Mission Valley Center shopping
complex, on Interstate 8 at the Mission Center Road exit in San
Diego, California. The ground lease is for 77,000 square feet,
and the theatre has 84,352 square feet and 4,361 seats. Free
parking for patrons is available throughout the shopping complex,
including under the theatre and on the south side of the shopping
center. The theatre box office has 15 stations, and there are
two concessions stands with 34 total stations. Other amenities
include stadium AMC LoveSeat [Trademark] style seating, 46-inch
spacing between rows, SDDS [Trademark], advance ticket purchase
by TeleTicket [Trademark], TORUS [Trademark] Compound Curved
Screens and HITS [Trademark]. During 1997, the Mission Valley 20
was the fourth highest grossing theatre in the United States.
The Mission Valley Center is a one-level outdoor mall with 1.3
million square feet on 48.1 acres. The Mission Valley Center
opened in 1961 with 100 shops, including the May Company and
Montgomery Wards Department Store. In 1975, the Mission Valley
Center expanded by adding Bullock's and 44,000 square feet of
specialty shops. In 1983, the Mission Valley Center also added
50 more specialty shops. Based on the 1990 U.S. Census, there
are approximately 490,000 people residing within five miles of
the Mission Valley 20. The ground-leased parcel for the Mission
Valley 20 site is subject to various reciprocal easements,
restrictions, covenants and other agreements for the operation of
the Mission Valley Center.
The Mission Valley 20 ground lease was entered into in 1994 and
has a 30-year initial term expiring in March 2024, with two, ten-
year extension options exercisable by the tenant. Minimum rent
is $10 per square foot ($764,850 per annum) through year 11 of
the lease, increasing by an amount equal to $2 per square foot in
year 12 and each five-year period thereafter to $18 per square
foot in year 27 of the ground lease. Minimum rent in the first
option period is $20 per square foot, and increases by an amount
equal to $2 per square foot at the commencement of each
successive option period. The ground lease also requires
percentage rent, commencing in year seven (2001), of 10% of gross
sales over specified breakpoints. During the first ten years of
the ground lease, the property may only operate as a theatre;
thereafter, with the consent of the landlord and the major
tenants of the shopping center, up to 25,000 square feet of the
property may be used to operate up to two retail businesses.
Pursuant to the Lease, all of the Company's obligations under the
ground lease, including rental payment obligations, are the
responsibility of AMC.
PROMENADE 16. The Promenade 16 opened in March 1996. It is
located on a 6.2 acre site in The Promenade at Woodland Hills
shopping complex at the intersection of 101 Freeway and Topanga
Canyon Boulevard in Woodland Hills, California. The building has
129,822 square feet, including the theatre that has 60,000 square
feet and 2,860 seats. Free parking is available in the shopping
complex parking lots located around the theatre and the mall.
The theatre box office has eight stations; in addition, there are
four self-service box offices outside the box office where
purchasers may purchase tickets or pick up "will-call" tickets.
The theatre has three concessions stands with 26 total stations.
Some concessions stations include pass-through concessions
service. Amenities include stadium AMC LoveSeat [Trademark]
style seating, 46-inch spacing between rows, SDDS [Trademark],
advance ticket purchase by TeleTicket [Trademark], TORUS
[Trademark] Compound Curved Screens, and HITS [Trademark].
During 1997, the Promenade 16 was the thirty-seventh highest
grossing theatre in the United States.
The Promenade at Woodland Hills shopping complex is a two-level,
enclosed mall having 600,000 square feet of gross leasable area
on 34 acres. The shopping complex opened in 1973 and was fully
renovated in 1992. In addition to the AMC Promenade 16 theatre,
the Promenade at Woodland Hills shopping complex is anchored by a
Macy's and Macy's Men's and Children's stores and features 80
specialty shops and restaurants. Based on the <PAGE> 1990 U.S. Census,
there are approximately 450,000 people residing within seven
miles of the Promenade 16. The Promenade 16 site is subject to
various reciprocal easements, restrictions, covenants and other
agreements for operation of the Promenade shopping complex. An
agreement with the developer of the shopping complex contains a
covenant to operate the theatre facility only as a theatre for a
period of 10 years, certain restrictions on the use of the retail
portions of the property and restrictions on the transfer of the
theatre facility. It further grants to the developer of the
shopping complex an option to purchase the theatre facility if at
least 35,000 square feet (or 10 screens) of the facility is not
operated as a theatre. The Promenade 16 site includes a 20,000
square foot food court, which includes 5,000 square feet
available for lease of which 3,700 square feet currently is
leased to six tenants. There is also 40,000 square feet of
retail space below the theatre that is currently vacant. AMC has
leased the entire site from the Company.
ONTARIO MILLS 30. The Ontario Mills 30 opened in December 1996.
It is located on a 14.7 acre site at the intersection of 4th
Street and Milliken Avenue in the Ontario Mills Mall in Ontario,
California. The theatre has 131,534 square feet and 5,496 seats.
Free parking is available to patrons in the 7,500-space Ontario
Mills parking lots around the theatre and the mall. The theatre
has three box offices with a total of 15 stations, as well as two
automated ticket dispensers for pick up of TeleTicket [Trademark]
purchases. There are three concessions stands with a total of 42
stations, all of which feature pass-through concessions service.
Amenities include stadium AMC LoveSeat [Trademark] style seating,
46-inch spacing between rows, SDDS [Trademark], TORUS [Trademark]
Compound Curved Screens, HITS [Trademark], advance ticket
purchase by TeleTicket [Trademark], an Image Video Entertainment
Wall which plays continuous digitized images of coming
attractions and current releases, two arcade areas and a private
room for party rentals and events. During 1997, the Ontario
Mills 30 was the twelfth highest grossing theatre in the United
States.
The Ontario Mills Mall is a 1.7 million square foot mall located
on the northwest corner of the intersection of the Interstate 10
and Interstate 15 freeways and is one of California's largest
outlet malls. The Ontario Mills 30 is the Ontario Mills Mall's
key entertainment anchor of a total of 13 anchors including
Clearinghouse by Saks Fifth Avenue, J.C. Penney Outlet, Sports
Authority, Marshall's, Burlington Coat Factory and Bed, Bath and
Beyond. Other entertainment stores and attractions include Sega
Gameworks, Wolfgang Puck Cafe, Virgin Megastore and the Warner
Bros. Studio Store Outlet. Based on the 1990 U.S. Census, there
are approximately 470,000 people residing within seven miles of
the Ontario Mills 30. The Ontario Mills 30 site is subject to
standard and customary utility and other easements and certain
reciprocal easements, covenants, conditions and restrictions
regarding access, parking, passage, signs and utility lines over,
and the construction of the common areas of the Ontario Mills
Mall. An agreement with the developer contains a covenant to
operate the AMC facility only as a theatre for a period of 10
years (subject to limited exceptions) and provides to such
developer an option to purchase the property if it is not used as
a theatre for a term of 40 years after the expiration of the
initial 10 year operating covenant period. For 15 years from the
date AMC acquired the property, the developer has a right of
first offer and a right of first refusal with respect to any
future sale or lease by the Company of substantially all of the
Property. The price to be paid for the Property pursuant to such
purchase option is its fair market value as determined by the
procedure set forth in such agreement.
LENNOX 24. The Lennox 24 opened in December 1996. It is located
on a 10.6 acre ground leased site in the Lennox Town Center
shopping complex on Olentangy River Road and Route 315 in
Columbus, Ohio. The theatre has 98,261 square feet and 4,412
seats. Approximately 800 parking spaces are allocated
specifically for AMC's patrons, and an additional 662 spaces are
available within the Lennox Town Center; 1,000 additional spaces
will be available when the Lennox Town Center is completely
finished. Theatre box offices feature a total of 14 stations,
and there are two "will-call" stations for advance ticket sales
and pickups. A guest services kiosk allows patrons to make
special arrangements, as well as purchase gift certificates, and
offers other services to moviegoers. The theatre has three
concessions stands with 38 total stations, some of which feature
pass-through <PAGE> concessions service. Amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows,
SDDS [Trademark], advance ticket purchase by TeleTicket
[Trademark], TORUS [Trademark] Compound Curved Screens and HITS
[Trademark]. During 1997, the Lennox 24 was the tenth highest
grossing theatre in the United States.
The Lennox Town Center is a regional shopping center with 320,000
square feet of leasable area on 37.5 acres. It is located
approximately four miles northeast of downtown Columbus, and is
near Ohio State University which is just across the Olentangy
River to the east. Lennox Town Center's anchor tenants include
Target and Barnes and Noble. Based on the 1990 U.S. Census,
there are approximately 525,000 people residing within seven
miles of the Lennox 24. The Lennox 24 is subject to standard and
customary utility and other easements.
The Lennox 24 ground lease was entered into in 1995 and has a 25-
year initial term ending in the year 2020, with ten, five-year
renewal options exercisable by the tenant. Annual minimum rent
is $537,578 through year five of the ground lease, increasing by
$50,000 per annum in year six, $55,000 per annum in year 11,
$61,000 per annum in year 16 and $66,000 per annum in year 21.
Annual rentals during the option periods commence at $805,860
during the first period and increase to $1,900,000 per annum in
the tenth option period. During the initial term, there is also
percentage rent due in an amount per annum equal to two percent
of gross sales over a specified breakpoint in each lease year.
The property must be operated as a theatre through year five of
the ground lease, but thereafter may be operated for any lawful
retail, service or entertainment use (subject to rights of
exclusivity granted other tenants). Pursuant to the Lease, all
of the Company's obligations under the ground lease, including
rent payment obligations, are the responsibility of AMC.
WEST OLIVE 16. The West Olive 16 opened in April 1997. It is a
free-standing theatre located on an 8.02 acre site in a multi-use
development at the intersection of Olive and Interstate 270 in
St. Louis, Missouri. The theatre has 60,418 square feet and
2,817 seats. Free parking is available around the theatre in
1,850 spaces. The theatre has two box offices with a total of
eight stations and two concessions stands with a total of 24
stations. Some concessions stations include pass-through
concessions service. Other amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows,
SDDS [Trademark], TORUS [Trademark] Compound Curved Screens and
HITS [Trademark]. Based on the 1990 U.S. Census, there are
approximately 330,000 people residing within seven miles of the
West Olive 16. The West Olive 16 is subject to standard and
customary utility and other easements.
STUDIO 30. The Studio 30 opened in May 1997. It is a free-
standing theatre located on a 21.56 acre site adjacent to a
Wal-Mart and a Sam's Club store located on the southeast corner of
Westheimer and Dunvale in Houston, Texas. The theatre has
136,154 square feet and 6,032 seats. Free parking is available
to patrons on the project site in 2,000 spaces around the
theatre. The theatre has three box offices with a total of 15
stations and three concessions stands with a total of 45
stations. All of the concessions stands include pass-through
concessions service. Other amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows,
SDDS [Trademark], TORUS [Trademark] Compound Curved Screens and
HITS [Trademark]. Based on the 1990 U.S. Census, there are
approximately 760,000 people residing within seven miles of the
Studio 30. The Studio 30 site is subject to standard utility
easements and City of Houston general ordinances with respect to
platting and building set-back lines.
HUEBNER OAKS 24. The Huebner Oaks 24 opened in June 1997. It is
a free-standing theatre on a 13.56 acre site and serves as an
anchor in a strip shopping center having other national tenants
including Bed, Bath and Beyond, Old Navy, Pier 1 Imports and
Borders Books. The site is located at the intersection of
Huebner Road and Interstate 10 in San Antonio, Texas. The
theatre has 96,004 square feet and 4,400 seats. Parking for
patrons is available in over 2,000 spaces located around the
theatre building and 1,000 spaces in the shopping mall adjacent
to the theatre property pursuant to a reciprocal easement
agreement. The theatre has three box offices <PAGE> with a total of 15
stations and three concessions stands with a total of 43
stations. All of the concessions stands include pass-through
concessions service. Other theatre amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows,
SDDS [Trademark], TORUS [Trademark] Compound Curved Screens and
HITS [Trademark]. Based on the 1990 U.S. Census, there are
approximately 440,000 people residing within seven miles of the
Huebner Oaks 24. The Huebner Oaks 24 is subject to standard and
customary utility and other easements.
FIRST COLONY 24. The First Colony 24 opened in December 1997.
The free-standing theatre is located on a 26.5 acre ground-leased
site across the ring road from the First Colony Mall in Sugar
Land, Texas, a suburb of Houston. The theatre has 107,690 square
feet and 5,098 seats. The site includes 2,200 parking spaces.
The theatre has two box offices with a total of 16 stations.
There are three concessions stands with a total of 40 stations,
all of which feature pass-through concessions service. Other
amenities include stadium AMC LoveSeat [Trademark] style seating,
46-inch spacing between rows, SDDS [Trademark], TORUS [Trademark]
Compound Curved Screens and HITS [Trademark].
The First Colony Mall is a regional mall with more than one
million square feet of retail space located at the Southwest (US
59) and South Beltway 6 freeways. The mall is anchored by
Foley's, Dillard's, J.C. Penney and Mervyn's. Based on the 1990
U.S. Census, there are approximately 270,000 people residing
within seven miles of the First Colony 24. The First Colony 24
is subject to standard and customary utility and other easements.
The First Colony 24 ground lease was entered into in 1996 and has
a 20-year initial term expiring in 2016, with six, five-year
renewal options exercisable by the tenant. Annual minimum rent
is $501,870 through year 10 of the ground lease, $552,057 for
years 11 through 15 of the ground lease and $607,263 for years 16
through 20 of the ground lease. Annual minimum rent for each of
the six, five-year renewal options is $667,989, $734,788,
$808,267, $889,094, $978,003 and $1,075,803, respectively. In
addition, there is also percentage rent due in an amount per
annum equal to three percent of gross receipts over a specified
breakpoint in each lease year. The property must be operated as
a theatre through year 10 of the ground lease, but thereafter may
be operated for any retail or entertainment use (subject to
limited exceptions). Pursuant to the Lease, all of the Company's
obligations under the ground lease, including rent payment
obligations, are the responsibility of AMC.
Upon the occurrence of certain events, the ground lessor has the
right to repurchase the First Colony theatre by paying to the
Company its fair market value as determined by the appraisal
procedure set forth in the ground lease. Those events include:
tenant's request for a change in the use of the premises,
tenant's ceasing to operate in the premises for more than 18
consecutive months, or entry by AMC into a "major sublease" as
defined in the ground lease after the expiration of the operating
covenant. Generally, the ground lessor may in its sole
discretion withhold consent to a subletting or assignment of the
ground lease except to an eligible transferee. The Company
believes that it and AMC are eligible transferees with respect to
the assignment and sublease of the ground lease.
OAK VIEW 24. The Oak View 24 opened in December 1997. It is a
free-standing facility located on a 20.4 acre ground-leased
parcel in the Oak View Plaza shopping center at 144th and West
Center Road, in Omaha, Nebraska. The theatre has 107,402 square
feet and 5,098 seats. Free parking is available in 1,350
shopping center spaces. The theatre has three box offices with a
total of 14 stations and three concessions stands with a total of
40 stations. Some concessions stations include pass-through
concessions service. Other theatre amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows
and SDDS [Trademark]. Some auditoriums feature TORUS [Trademark]
Compound Curved Screens and HITS [Trademark].
Oak View Plaza is a regional shopping complex located across the
street from Oak View Mall. Oak View Plaza's anchor tenants
include Kohl's, Barnes & Noble and Linens 'N' Things. Oak View
Mall's anchor tenants include <PAGE> Yonkers, Dillards, J.C. Penney and
Sears. Based on the 1990 U.S. Census, there are approximately
260,000 people residing within seven miles of the Oak View 24.
AMC's interest under its ground lease in the Oak View 24 property
is subject to standard and customary utility and other easements.
The Oak View 24 ground lease was entered into in 1996 and has a
20-year initial term expiring in October 2016, with six, five-
year renewal options exercisable by the tenant. Fixed rental
under the ground lease is $425,000 annually through the third
year, increasing to $525,000 per annum in years four and five,
then increasing in increments of $50,000 per annum in years six,
11 and 16. Rent during the option periods is $675,000 per annum,
adjusted by changes in the consumer price index over the prior
term. There is no percentage rent. The premises may be used for
a theatre or any other lawful purpose. The tenant under the
ground lease has an option to purchase the land commencing in
year four of the ground lease at a price of $5,000,000, which
purchase price increases in increments of $500,000 in years six,
11 and 16 of the ground lease. Pursuant to the Lease, all of the
Company's obligations under the ground lease, including rent
payment obligations, are the responsibility of AMC.
LEAWOOD TOWN CENTER 20. The Leawood Town Center 20 opened in
December 1997. The free-standing theatre is located on an 8.4
acre site in the Leawood Town Center Plaza shopping center in an
affluent Kansas suburb of Kansas City, Missouri. The theatre has
75,224 square feet and 2,995 seats. Parking is available in
3,300 parking spaces in lots around the mall and on-site. The
theatre has one box office with a total of 12 stations as well as
two automated ticket dispensers for pick-up of TeleTicket
[Trademark] purchases. There are three concessions stands with a
total of 32 stations, all of which feature pass-through
concessions service. Other amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows,
SDDS [Trademark], TORUS [Trademark] Compound Curved Screens and
HITS [Trademark].
The Leawood Town Center Plaza shopping center is located at 119th
Street and Roe in Leawood, Kansas and is anchored by a Jacobson's
department store, a Galyans sporting goods store and the AMC
theatre. It also features other retailers such as Williams
Sonoma, Barnes & Noble, Pottery Barn, The Gap, Gap Kids and The
Limited. There are also 10 restaurants, including On The Border,
Houlihan's and Dean & Delucca, located at the shopping center.
Based on the 1990 U.S. Census, there are approximately 310,000
people residing within seven miles of the Leawood Town Center 20.
The Leawood Town Center 20 is subject to standard and customary
utility and other easements.
GULF POINTE 30. The Gulf Pointe 30 opened in December 1997. It
is a free-standing theatre located on a 34 acre site at the
Interstate 45 and South Beltway 8 freeways in Houston, Texas.
The theatre has 130,891 square feet and 6,008 seats. The site
includes 3,000 parking spaces. The theatre has two box offices
with a total of 18 stations. There are three concessions stands
with a total of 44 stations, all of which feature pass-through
concessions service. Other amenities include stadium AMC
LoveSeat [Trademark] style seating, 46-inch spacing between rows,
SDDS [Trademark], TORUS [Trademark] Compound Curved Screens and
HITS [Trademark].
Based on the 1990 U.S. Census, there are approximately 295,000
people residing within seven miles of the Gulf Pointe 30. The
Gulf Pointe 30 is subject to standard and customary utility and
other easements.
SOUTH BARRINGTON 30. The South Barrington 30 opened in March
1998. It is a free-standing theatre located on a 25.3 acre site
at the intersection of Interstate 90 and Barrington Road in South
Barrington, Illinois, a suburb of Chicago. The theatre has
130,891 square feet and 6,210 seats. The site includes 2,800
parking spaces. The theatre has two box offices with a total of
18 stations. There are three concessions stands with a total of
44 stations, all of which feature pass-through concessions
service. Other amenities include stadium AMC LoveSeat
[Trademark] style seating, 46-inch spacing between rows, SDDS
[Trademark], TORUS [Trademark] Compound Curved Screens and <PAGE> HITS
[Trademark]. Based on the 1990 U.S. Census, there are
approximately 400,000 people residing within seven miles of the
South Barrington 30. The South Barrington 30 is subject to
standard and customary utility and other easements.
Promenade 16 (approximately 10%) and South Barrington 30
(approximately 12%) each represents 10% or more of the Company's
current total assets and pro forma 1998 rental revenues, assuming
no additional properties are acquired in 1998.
OFFICE LOCATIONS. The Company maintains two offices, one in
Kansas City, Missouri and one in Los Angeles, California. Each
office suite is leased from a third party landlord. The Kansas
City office occupies a total of 1,534 square feet with annual
rentals of $36,700. The Los Angeles office occupies a total of
1,494 square feet with annual rentals of $43,500 and an
approximate 4.5% annual escalator.
ITEM 3. LEGAL PROCEEDINGS
As of December 31, 1997, the Company was not party to any legal
action.
On January 22, 1998, the Company filed suit against Station
Casinos, Inc. ("Station"), a Nevada corporation, in the United
States District Court for the Western District of Missouri.
Among other claims, the Company contends that Station is
infringing the Company's trademark rights by announcing that it
intends to convert its status to a REIT and to change its name to
"Station Entertainment Properties, Inc."
Subsequent to filing the lawsuit, it was announced that a third
party had reached an agreement to acquire Station. The Company
believes this transaction could alter Station's plans to utilize
the name "Station Entertainment Properties, Inc." which could
make the Company's lawsuit moot.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF THE SECURITY
HOLDERS.
Not Applicable.
ITEM 4A. EXECUTIVE OFFICERS OF THE REGISTRANT
Name Age Positions Held
Peter C. Brown 39 Chairman of the Board of Trustees
Robert L. Harris 39 President, Chief Development Officer and
Trustee
David M. Brain 41 Chief Financial Officer
R. Scott Christian 36 Treasurer/Controller
Peter C. Brown has served as Chairman of the Board of Trustees of
the Company since August 1997 and has served as a director of
AMCE and AMC since 1992. Mr. Brown was appointed President of
AMCE in 1997. Mr. Brown served as Executive Vice President of
AMCE from 1994 to 1997. Mr. Brown has served as Executive Vice
President of AMC since 1994, and as Chief Financial Officer of
AMCE and AMC since 1991. Mr. Brown served as Senior Vice
President of AMCE and AMC from 1991 until his appointment as
Executive Vice President in 1994. He served as Treasurer of AMCE
and AMC from 1992 through 1994. Prior to 1991, <PAGE> Mr. Brown served
as a consultant to AMCE. Prior to his engagement by AMCE, Mr.
Brown was a Vice President of DJS Inverness, Inc., an investment
banking firm located in New York City. Mr. Brown is a graduate
of the University of Kansas.
Robert L. Harris has served as President, Chief Development
Officer and a Trustee of the Company since August 1997. From
1992 until joining the Company, he was employed by AMCE, most
recently serving as a Senior Vice President of AMC in charge of
its international efforts. From 1980 to 1992, Mr. Harris was
employed by Carlton Browne & Company, a California-based real
estate developer, serving as its President from 1985 to 1992.
During such employment, Mr. Harris was in charge of development
projects totaling in excess of 3.0 million square feet, including
more than 900,000 square feet of commercial/retail development.
Mr. Harris is a director of Imperial Bancorp's Financial Group
and serves on the Board of Pepperdine University's George L.
Graziadio School of Business and Management. Mr. Harris is an
alumnus of the University of Southern California. Mr. Harris is
a member of the International Council of Shopping Centers (ICSC)
and was a speaker on ETRC's at the last two ICSC regional
conferences.
David M. Brain has served as Chief Financial Officer of the
Company since August 1997 and acted as a consultant to AMCE
regarding the formation of the Company during July 1997. From
1996 until that time he was a Senior Vice President in the
investment banking and corporate finance department of George K.
Baum & Company ("GKB"), an investment banking firm headquartered
in Kansas City, Missouri. Mr. Brain's responsibilities at GKB
included client advisory assignments involving the establishment
of real estate joint ventures and the placement of debt and
equity for real estate acquisitions and developments. Before
joining GKB, Mr. Brain was in the Kansas City office of KPMG Peat
Marwick LLP as Managing Director of the Corporate Finance group,
a practice unit that he organized and managed for over 12 years.
Besides his corporate finance experience, Mr. Brain has appeared
numerous times as an expert witness in federal and state court
regarding valuation matters. He received a Bachelor of Arts
degree in Economics from Tulane University with honors, as well
as Phi Beta Kappa and Tulane Scholar designations, and a Masters
in Business Administration from the A.B. Freeman Graduate
Business School at Tulane University, where he was awarded an
academic fellowship. Mr. Brain serves as a director of Capital
for Entrepreneurs, Inc., a venture capital fund, the Center for
Business Innovation, Inc., a not-for-profit small business
incubator located on the campus of the University of Missouri at
Kansas City, Weather Protection Systems, Inc., a vendor of
tension fabric structures, and the Council for Entrepreneurship
at the University of Missouri at Kansas City.
R. Scott Christian was recently appointed Treasurer/Controller of
the Company. From August 1996 to November 1997, he had been
President of his own consulting company. From 1993 to 1996, Mr.
Christian served as Chief Operating Officer of a privately held
middle market mail order catalog company specializing in high-end
apparel. In addition to operational responsibilities, Mr.
Christian was also responsible for all financial functions within
the company. Prior to that, Mr. Christian was a manager in the
Corporate Finance group of the Kansas City office of KPMG Peat
Marwick LLP for six years. Prior to KPMG Peat Marwick, Mr.
Christian was the Vice President of Turner State Bank in Kansas
City. Mr. Christian managed all of the operations and financial
areas of the bank including all financial institution regulatory
reporting and compliance. He achieved Certified Cash Manager
certification from the Treasury Management Association in 1991.
Mr. Christian received a BSBA and an MBA from the University of
Kansas.
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Company's Shares are traded on the New York Stock Exchange
under the symbol EPR. The Company's Shares commenced trading on
November 18, 1997. The following table sets forth the range of
high and low closing prices of the Company's Shares during the
six week period ended December 31, 1997 in which the Company's
Shares were publicly traded in 1997:
Fiscal Year 1997 High Low
Fourth Quarter (six weeks) 19 7/8 18 7/8
At March 17, 1998, there were approximately 8,100 holders of
record of the Company's Shares.
On December 16, 1997, the Company's Board of Trustees declared an
$0.18 per Share dividend which was paid in January 1998. This
dividend represented an 8% average annual return based on the
weighted average number of Shares outstanding for the fourth
quarter of 1997 and based on the initial public offering price of
$20 per Share. On March 11, 1998, the Board of Trustees declared
a dividend of $.40 per Share to be paid in the second quarter of
1998. This dividend represents an 8% average annual return based
on the weighted average number of Shares outstanding for the
first quarter of 1998 and based on the initial public offering
price of $20 per Share.
The Board of Trustees and Company management expect to distribute
a substantial portion of the Company's FFO as dividends on a
quarterly basis. The Credit Agreement entered into by the Company
in connection with the Bank Credit Facility restricts the Company
from paying dividends in excess of 95% of FFO during the first
year of the Credit Agreement and 90% of FFO in any year
thereafter, provided that the Company may at all times pay such
dividends as required to maintain its status as a REIT. Upon any
Event of Default by the Company under the Credit Agreement, the
Company would be permitted to pay dividends only to the extent
required to maintain its status as a REIT.
USE OF PROCEEDS FROM REGISTERED SECURITIES
On November 18, 1997, the Company's Registration Statement on
Form S-11 and Form S-3 with respect to the Shares offered and
sold in the IPO, Registration No. 333-35281, was declared
effective by the Securities and Exchange Commission. The
offering was underwritten by a syndicate of which Goldman, Sachs
& Co., Morgan Stanley Dean Witter, Furman Selz, Prudential
Securities Incorporated and Salomon Brothers Inc. served as
managing underwriters. The Company registered 13,800,000 Shares
for sale at the public offering price of $20 per Share and the
aggregate public offering price of $276 million. All of such
Shares were sold in the offering at the public offering price.
The Company incurred underwriting discounts and commissions and
underwriting expenses in the amount of $19.2 million and incurred
other offering expenses (including legal, accounting, printing,
travel and other fees and Company formation expenses) in the
aggregate amount of $2.4 million, for a total aggregate expense
amount of $21.6 million. A total of approximately $355,000 of
such offering and formation expenses was advanced by AMCE on
behalf of the Company and will be reimbursed by the Company to
AMCE. The net offering proceeds to the Company, after deducting
all expenses of the offering, were $254.4 million.
<PAGE>
On November 24, 1997, the Company used $162.7 million of net
offering proceeds to acquire eight megaplex theatre properties
from AMCE (or its subsidiaries). These eight properties were:
Grand 24 in Dallas, Texas; Mission Valley 20 in San Diego,
California; Promenade 16 in Los Angeles, California; Ontario
Mills 30 in Los Angeles, California; Lennox 24 in Columbus, Ohio;
West Olive 16 in St. Louis, Missouri; Studio 30 in Houston,
Texas; and Huebner Oaks 24 in San Antonio, Texas.
On December 22, 1997, the Company used $51.6 million of net
offering proceeds to acquire three megaplex theatre properties
from AMCE. These three properties were: First Colony 24 in
Houston, Texas; Oak View 24 in Omaha, Nebraska; and Leawood Town
Center 20 in Kansas City, Missouri.
On February 2, 1998, the Company used $27.6 million in net
offering proceeds to acquire one megaplex theatre property, Gulf
Pointe 30 in Houston, Texas, from AMCE as well as three adjacent
land parcels which the Company is holding for future development.
On March 9, 1998, the Company acquired one megaplex theatre
property, South Barrington 30 in Chicago, Illinois, from AMCE.
The purchase price for South Barrington 30 ($34.5 million) was
paid $13.5 million from offering proceeds and the remaining $21
million with proceeds drawn by the Company under the Bank Credit
Facility. Upon the purchase of South Barrington 30, the Company
had fully deployed its initial public offering proceeds.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA.
The following selected historical financial information
represents the results of operations of the Company for the
period August 29, 1997 (inception) to December 31, 1997 and the
financial position of the Company as of the end of such period.
INCOME STATEMENT DATA 45 Days Ending
(In thousands of dollars) December 31, 1997
Rental revenue $1,887
Personnel expense 183
Business development expense 12
Shareholder expense 22
Administrative expense 144
Earnings before interest,
taxes, depreciation and amortization 1,526
Depreciation and amortization 668
Earnings before interest and taxes 858
Net interest expense (584)
Net income $1,442
FUNDS FROM OPERATIONS
Net income $1,442
Property depreciation significant
to real estate 659
Funds from Operations $2,101
PER SHARE INFORMATION
(based on 13,860,100 shares
outstanding as of December 31, 1997)
Net income $0.10
Funds from Operations $0.15
Dividends per share $0.18
BALANCE SHEET DATA
(in thousands of dollars) December 31, 1997
Net investment in real estate $213,812
Cash and cash equivalents 45,220
Other assets 456
Total assets $259,488
Current liabilities $8,262
Stockholders' equity 251,226
Total liabilities and
stockholders' equity $259,488
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.
FORWARD-LOOKING STATEMENTS
The following discussion should be read in conjunction with the
accompanying Financial Statements and Notes thereto of the
Company. The forward-looking statements included in this
discussion and elsewhere in this Form 10-K involve risks and
uncertainties, including anticipated financial performance,
business prospects, industry trends, anticipated capital
expenditures, shareholder returns and other matters, which
reflect management's best judgment based on factors currently
known. Actual results and experience could differ materially
from the anticipated results and expectations expressed in the
Company's forward-looking statements.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
WITH THE EXCEPTION OF HISTORICAL INFORMATION, THIS REPORT ON FORM
10-K CONTAINS FORWARD-LOOKING STATEMENTS AS DEFINED IN THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND IDENTIFIED
BY SUCH WORDS AS "WILL BE," "INTEND," "CONTINUE," "BELIEVE,"
"MAY," "EXPECT," "HOPE," "ANTICIPATE," "GOAL," "FORECAST," OR
OTHER COMPARABLE TERMS. THE COMPANY'S ACTUAL FINANCIAL
CONDITION, RESULTS OF OPERATIONS OR BUSINESS MAY VARY MATERIALLY
FROM THOSE CONTEMPLATED BY SUCH FORWARD LOOKING STATEMENTS AND
INVOLVE VARIOUS RISKS AND UNCERTAINTIES, INCLUDING BUT NOT
LIMITED TO THE FOLLOWING:
. The Company's initial dependence on a single tenant and
lease guarantor for its lease revenues and ability to make
distributions to its shareholders
. The Company's future ability to diversity its portfolio
. Potential conflicts of interest involving the Company and
its initial tenant and lease guarantor
. Competition from other entities providing capital to the
entertainment industry
. Dependence on key personnel
. Operating risks in the entertainment industry that may
affect the operations of the Company's tenants
. Tax risks arising from the Company's continuing ability to
qualify as a REIT
. Interest rates and availability of debt financing
. General real estate investment risks
. Other risk and uncertainties
INVESTORS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON SUCH
FORWARD-LOOKING STATEMENTS, AND ARE ENCOURAGED TO REVIEW THE RISK
FACTORS IDENTIFIED IN THE COMPANY'S PROSPECTUS CONTAINED IN THE
REGISTRATION STATEMENT ON FORM-11 AND FORM S-3.
RESULTS OF OPERATIONS
The Company began operations concurrent with its initial public
offering on November 18, 1997. Consequently, there is no
historic information with which to compare current results.
During the period from November 18, 1997 (commencement of
operations) to December 31, 1997, the Company had net income of
$1.44 million or $0.10 per Share on rental income of $1.9 million
or $0.14 per Share. FFO was $2.1 million or $0.15 per Share.
General and administrative expense totaled $361,000.
<PAGE>
As of the first quarter of 1998, the Company has acquired all of
the Initial Properties plus one Option Property in accordance
with the original schedule proposed in the Prospectus. Assuming
that the remaining Option Properties are purchased on schedule,
the Company believes it will meet or exceed its 1998 rental
income goal as stated in its Prospectus (for the 12 months ending
November 30, 1998).
LIQUIDITY AND CAPITAL RESOURCES
As of December 31, 1997 the Company had $45.2 million in cash and
short term investments. The Company deployed this cash in 1998
with its February and March acquisitions of Gulf Pointe 30 and
South Barrington 30, respectively.
The Company entered into a three year unsecured revolving credit
facility (the "Bank Credit Facility") on March 2, 1998. The Bank
Credit Facility provides for up to $200 million of unsecured
credit availability to fund additional property acquisitions and
Company operations. The availability under this Credit Facility
is determined by applying a 10.75% capitalization rate to the net
operating income of eligible properties and multiplying the
result by 50%. The Company drew $21 million under the Bank
Credit Facility in March 1998 to complete the acquisition of
South Barrington 30. The Company anticipates it will draw an
additional $109 million over the course of 1998 to fund its
acquisition of the four remaining AMCE Option Properties. The
remaining credit availability of $69 million will be utilized, to
the extent opportunities present themselves, to acquire
entertainment properties from other operators and, to the extent
required to supplement cash flow from operations, to fund
operations. The Bank Credit Facility contains a number of
financial covenants and restrictions, including restrictions on
the amount of secured indebtedness that can be obtained by the
Company, a restriction on dividends to 95% of FFO in year one and
90% of FFO thereafter, and provisions governing the eligibility
and value of properties for borrowing base calculations.
Management is considering obtaining a long term secured credit
facility which would securitize certain specific properties in
its portfolio in order to take advantage of the relatively low
long term rates currently available in the marketplace. This
long term secured credit facility would mitigate a significant
portion of the interest rate risk potentially associated with the
Bank Credit Facility. However, there can be no assurance secured
financing will be available to the Company on favorable terms.
The Company anticipates that its cash from operations and credit
availability under the Bank Credit Facility will provide adequate
liquidity to conduct its operations, fund administrative and
operating costs, interest payments and additional planned
property acquisitions, and allow distributions to the Company's
shareholders and avoidance of corporate level federal income or
excise tax in accordance with Internal Revenue Code requirements
for qualification as a REIT.
Should opportunities be presented for property acquisitions
consistent with the Company's investment objectives that would
cause the Company to exhaust its credit availability under the
Bank Credit Facility, the Company intends to either: (i) make
certain property acquisitions utilizing additional issuance of
the Company's Shares as consideration in the transaction(s);
and/or (ii) conduct a secondary offering of Shares which would be
designed to raise capital for current acquisition needs and a
reduction in borrowings under the Bank Credit Facility, thereby
replenishing the available credit for future acquisitions.
<PAGE>
YEAR 2000 DISCLOSURE
The year 2000 issue is the result of computer programs being
written using two digits rather than four to define the
applicable year. Because the Company commenced operations only
in November 1997, its accounting software is currently its only
operating system. The third party vendor of the Company's
accounting software has certified that the system is year 2000
compliant.
There are significant third parties on which the Company's
operations are dependent or which provide the Company with
information. There can be no assurance the systems of other
companies on which the Company relies will be year 2000
compliant on a timely basis and thus no assurance such companies'
systems would not have an adverse effect on the Company's
business or operations.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK.
The Company did not have a material exposure to interest rate
risk in 1997 and thus did not invest in any derivatives or market
risk sensitive instruments in that year. In compliance with a
requirement imposed under the Bank Credit Facility, the Company
in 1998 entered into a hedge instrument designed to reduce the
Company's exposure to the risk of fluctuations in interest rates.
The Company is anticipating collateralizing a portion of its
current portfolio into a securitized term debt instrument during
the second quarter of 1998 in order to take advantage of the
currently low interest rate environment. In anticipation of
entering into this term debt instrument, the Company has entered
into a hedging instrument to "lock in" an attractive rate.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
Entertainment Properties Trust
Financial Statements and
Other Financial Information
Period from August 29, 1997
(date of inception) to December 31, 1997
<PAGE>
Contents
Report of Independent Auditors. . . . . . . . . . . . . . . . . 1
Audited Financial Statements
Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . .2
Statement of Income . . . . . . . . . . . . . . . . . . . . . .3
Statement of Changes in Shareholders' Equity . . . . . . . . . .4
Statement of Cash Flows . . . . . . . . . . . . . . . . . . . .5
Notes to Financial Statements . . . . . . . . . . . . . . . . .6
Other Financial Information
Real Estate and Accumulated Depreciation . . . . . . . . . . . 12
<PAGE>
Report of Independent Auditors
The Board of Trustees
Entertainment Properties Trust
We have audited the accompanying balance sheet of Entertainment
Properties Trust (the Company) as of December 31, 1997, and the
related statements of income, changes in shareholders' equity and
cash flows for the period from August 29, 1997 (date of
inception) to December 31, 1997. Our audits also included the
financial statement schedule listed in the Index at Item 14(a).
These financial statements and schedule are the responsibility of
the Company's management. Our responsibility is to express an
opinion on these financial statements and schedule based on our
audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our
audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of the Company as of December 31, 1997, and the results of its
operations and its cash flows for the period from August 29, 1997
(date of inception) to December 31, 1997, in conformity with
generally accepted accounting principles. Also, in our opinion,
the related financial statement schedule, when considered in
relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set
forth therein.
Ernst & Young LLP
January 13, 1998
<PAGE>
Entertainment Properties Trust
Balance Sheet
December 31, 1997
ASSETS
Rental properties, net $213,812,226
Cash and cash equivalents 45,220,269
Other assets 456,191
Total assets $259,488,686
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Accounts payable and accrued liabilities $ 2,524,346
Advisory fee payable 1,368,000
Dividends payable 2,494,818
Unearned rents 1,875,126
Total liabilities 8,262,290
Shareholders' equity:
Common stock, $.01 par value;
50,000,000 shares authorized;
13,860,100 shares issued and outstanding 138,601
Preferred stock, $.01 per share,
5,000,000 shares authorized;
no shares issued or outstanding --
Additional paid-in capital 255,720,702
Loans to officers (2,400,000)
Non-vested stock (1,180,000)
Distributions in excess of net income (1,052,907)
Total shareholders' equity 251,226,396
Total liabilities and shareholders' equity $259,488,686
See accompanying notes.
<PAGE>
Entertainment Properties Trust
Statement of Income
Period from August 29, 1997
(date of inception) to December 31, 1997
Rental income $1,886,884
Expenses:
General and administrative expenses 372,695
Depreciation 659,160
Total expenses 1,031,855
Income from property operations 855,029
Interest income 586,882
Net income $1,441,911
Basic and diluted earnings per common share $.10
See accompanying notes.
<PAGE>
</TABLE>
<TABLE>
Entertainment Properties Trust
Statement of Changes in Shareholders' Equity
<CAPTION>
Additional Non-vested Distributions
Common Paid-In Loans to Stock in Excess of
Stock Capital Shareholders Grants Net Income Total
<S> <C> <C> <C> <C> <C> <C>
Issuance of
common stock $138,601 $275,863,399 $ -- $ -- $ -- $276,002,000
Costs of
issuance of
common stock -- (20,142,697) -- -- -- (20,142,697)
Loans to
officers -- -- (2,400,000) -- -- (2,400,000)
Non-vested
stock -- -- -- (1,200,000) -- (1,200,000)
Amortization
of stock grant -- -- -- 20,000 -- 20,000
Net income -- -- -- -- 1,441,911 1,441,911
Dividends to
common
shareholders
($.18 per share) -- -- -- -- (2,494,818) (2,494,818)
Balance at
December 31,
1997 $138,601 $255,720,702 $(2,400,000) $(1,180,000) $(1,052,907) $251,226,396
See accompanying notes.
<TABLE\>
<PAGE>
Entertainment Properties Trust
Statement of Cash Flows
Period from August 29, 1997
(date of inception) to December 31, 1997
OPERATING ACTIVITIES
Net income $ 1,441,911
Adjustments to reconcile net
income to net cash provided
by operating activities:
Depreciation 659,160
Increase in other assets (456,191)
Increase in accounts payable
and accrued liabilities 3,892,346
Increase in unearned rents 1,875,126
Net cash provided by operating activities 7,412,352
INVESTING ACTIVITIES
Acquisitions of rental properties (214,471,386)
Net cash used in investing activities (214,471,386)
FINANCING ACTIVITIES
Issuance of common stock 272,422,000
Costs associated with common stock offering (20,142,697)
Net cash provided by financing activities 252,279,303
Net increase in cash and cash equivalents 45,220,269
Cash and cash equivalents at beginning of period --
Cash and cash equivalents at end of period $ 45,220,269
SUPPLEMENTAL SCHEDULE OF NONCASH ACTIVITY
Declaration of dividend to common shareholders $ 2,494,818
See accompanying notes.
<PAGE>
1. ORGANIZATION
Entertainment Properties Trust (the Company) is a Maryland real
estate investment trust (REIT) initially capitalized on August
29, 1997. The Company was formed to acquire and develop
entertainment properties including megaplex theatres and
entertainment theme retail centers.
In November 1997, the Company completed an initial public
offering of 13,860,000 common shares, the proceeds of which were
used to acquire theatre properties in accordance with its
business plan.
2. SIGNIFICANT ACCOUNTING POLICIES
USE OF ESTIMATES
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported
in the financial statements and accompanying notes. Actual
results may differ significantly from such estimates and
assumptions.
RENTAL PROPERTIES
Rental properties are carried at cost less accumulated
depreciation. Costs incurred for the acquisition of the
properties are capitalized. Accumulated depreciation is computed
over the estimated useful lives of the assets, which generally
are estimated to be 40 years for buildings and improvements.
Expenditures for ordinary maintenance and repairs are charged to
operations in the period incurred. Significant renovations and
improvements which improve or extend the useful life of the asset
are capitalized and depreciated over its estimated useful life.
In accordance with Statement of Financial Accounting Standards
(SFAS) No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to Be Disposed Of," the Company
would record impairment losses on long-lived assets if events and
circumstances indicate that the assets might be impaired and the
undiscounted cash flows estimated to be generated by those assets
were less than the carrying amounts of those assets.
<PAGE>
2. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
REVENUE RECOGNITION
All leases contain provisions which provide an annual escalation
in base rent in the amount of the change in the Consumer Price
Index not to exceed 2% (base rent escalation). In addition,
tenants are subject to additional rents in the event gross
operating revenues of the properties exceed certain thresholds
defined in the lease agreements (percentage rents). Base rents
are recognized on a straight-line basis over the term of the
lease, and the base rent escalation and percentage rents are
recognized when earned.
INCOME TAXES
The Company operates in a manner intended to enable it to qualify
as a REIT under the Internal Revenue Code (the Code). A REIT
which distributes at least 95% of its taxable income to its
shareholders each year and which meets certain other conditions
is not taxed on that portion of its taxable income which is
distributed to its shareholders. The Company intends to continue
to qualify as a REIT and to distribute substantially all of its
taxable income to its shareholders. Accordingly, no provision has
been made for income taxes.
Earnings and profits, which will determine the taxability of
distributions to shareholders, will differ from that reported for
financial reporting purposes due primarily to differences in the
basis of the assets and the estimated useful lives used to
compute depreciation.
STOCK BASED COMPENSATION
The Company has elected to follow Accounting Principles Board
Opinion No. 25 (APB 25), "Accounting for Stock Issued to
Employees," and related interpretations in accounting for its
employee stock options rather than the alternative fair value
accounting provided for under SFAS No. 123, "Accounting and
Disclosure for Stock Based Compensation." Under APB 25, because
the exercise price of the Company's employee stock options equals
the market price of the underlying stock at the date of grant, no
compensation expense is recognized.
<PAGE>
2. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
CONCENTRATION OF RISK
American Multi-Cinema Inc. (AMC) is the lessee of all of the
rental properties held by the Company at December 31, 1997 as a
result of a series of sale leaseback transactions pertaining to a
number of AMC megaplex theatres. The Company's initial revenues,
and its ability to make distributions to its shareholders, will
depend on rental payments by AMC under the leases, or its parent,
AMC Entertainment, Inc. (AMCE), as the guarantor of AMC's
obligations under the leases.
CASH EQUIVALENTS
Cash equivalents include demand deposits and shares of a money
market mutual fund for which cost approximates market value.
3. RENTAL PROPERTIES
The following summarizes the carrying amounts of rental
properties as of December 31, 1997:
Buildings and improvements $182,141,386
Land 32,330,000
214,471,386
Accumulated depreciation (659,160)
Total $213,812,226
At December 31, 1997, the Company has committed to purchase a
megaplex theatre from AMC in the amount of $34,500,000. The
Company also has an option to purchase an additional five
megaplex theatres from AMC with an estimated purchase price of
$138,500,000. The date of acquisition, if any, will not occur
prior to the opening dates of the megaplex theatres, which is
expected to occur in 1998.
<PAGE>
4. OPERATING LEASES
The Company's rental properties are leased under operating leases
with expiration dates ranging from 13 to 15 years. Future minimum
rentals on noncancelable tenant leases at December 31, 1997 are
as follows:
1998 $ 22,501,500
1999 22,501,500
2000 22,501,500
2001 22,501,500
2002 22,501,500
Thereafter 196,731,115
$309,238,615
5. STOCK OPTION PLAN
The Company maintains a stock option plan (the Plan) under which
options to purchase up to 1,500,000 shares of the Company's
common stock, subject to adjustment in the event of certain
corporate events, may be granted. These options will provide the
right to purchase shares at a price not less than the fair market
value of the shares at the date of grant. The options may be
granted for any reasonable term, not to exceed 10 years.
During the period ended December 31, 1997, the Company granted
options to purchase 60,000 shares at the initial public offering
price of $20 per share under the Plan. These options will vest in
equal increments over a period of five years as of the date of
grant. No other options are outstanding at December 31, 1997.
Pro forma information regarding net income and earnings per share
is required by SFAS No. 123 and has been determined as if the
Company had accounted for its employee stock options under the
fair value method of that Statement. The fair value for these
options was estimated at the date of grant using the Black-Sholes
option pricing model with the following assumptions for the year
ended December 31, 1997: risk-free interest rate of 5.8%,
dividend yields of 8%, volatility factors of the expected market
price of the Company's common stock of .19 and an expected life
of the option of seven years.
<PAGE>
5. STOCK OPTION PLAN (CONTINUED)
The Company's pro forma information as of December 31, 1997 is as
follows:
Net income:
As reported $1,441,911
Pro forma 1,441,501
Earnings per share:
As reported .10
Pro forma .10
During 1997, the Company also granted 60,000 restricted shares at
the initial public offering price of $20 per share to certain
executives of the Company. The holders of these restricted shares
have voting rights and are eligible to receive dividends and
distributions as of the date of grant. These shares vest in equal
increments over a period of five years from the date of grant.
The Company records compensation expense pertaining to these
restricted shares ratably over the period of vesting.
6. RELATED PARTIES
The Company issued notes in the amount $2,400,000 to employees to
purchase 120,000 shares at the initial public offering price.
These notes bear interest at 6.1% and are due in approximately
equal annual installments on November 30, 2000, 2001 and 2002.
<PAGE>
7. EARNINGS PER SHARE
The following table sets forth the computation of the basic and
diluted earnings per share as of December 31, 1997:
Numerator:
Net income $1,441,911
Numerator for basic and
dilutive earnings per
share -- income available
to common shareholders 1,441,911
Denominator:
Denominator for basic earnings
per share -- weighted-average
shares 13,800,100
Effect of dilutive securities:
Non-vested stock grants 60,000
Dilutive potential common shares 60,000
Denominator for diluted earnings
per share -- adjusted
weighted-average shares 13,860,100
Basic earnings per share $.10
Diluted earnings per share $.10
<PAGE>
Other Financial Information
<PAGE>
</TABLE>
<TABLE>
Entertainment Properties Trust
Real Estate and Accumulated Depreciation
December 31, 1997
<CAPTION> Cost Capitalized
Subsequent
Initial Cost to Company to Acquisition
Buildings
and Carrying
Property Description Location Encumbrances Land Improvements Improvements Costs
<S> <C> <C> <C> <C> <C> <C>
Grand 24 Dallas, TX None $ 3,060,000 $ 15,540,000 $ -- $ --
Mission Valley 20 San Diego, CA None -- 16,300,000 -- --
Promenade 16 Los Angeles, CA None 6,021,000 22,479,000 -- --
Ontario Mills 30 Los Angeles, CA None 5,521,000 19,779,000 -- --
Lennox 24 Columbus, OH None -- 12,900,000 -- --
West Olive 16 St. Louis, MO None 4,985,000 12,815,000 -- --
Studio 30 Houston, TX None 6,023,000 20,377,000 -- --
Huebner Oaks 24 San Antonio, TX None 3,006,000 13,894,000 -- --
First Colony 24 Houston, TX None -- 19,100,000 -- --
Oakview 24 Omaha, NE None -- 16,700,000 -- --
Leawood Town
Center 20 Kansas City, MO None 3,714,000 12,086,000 -- --
Unallocated capitalized
acquisition costs None -- 171,386 -- --
Totals $32,330,000 $182,141,386 $ -- $ --
<TABLE\>
</TABLE>
<TABLE> Life on
Which
Gross Amount at Which Carried Depreci-
at Close of Period ation in
Latest
<CAPTION> Accumu Income
Buildings -lated Date of State-
Property and Depre- Construc Date ments is
Description Location Land Improvements Total ciation -tion Acquired Computed
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Grand 24 Dallas, $ 3,060,000 $ 15,540,000 $ 18,600,000 $ 64,750 May November 40 years
TX 1995 1997
Mission San Diego, -- 16,300,000 16,300,000 67,917 December November 40 years
Valley 20 CA 1995 1997
Promenade Los Angeles, 6,021,000 22,479,000 28,500,000 93,663 March November 40 years
16 CA 1996 1997
Ontario Los Angeles, 5,521,000 19,779,000 25,300,000 82,413 December November 40 years
Mills 30 CA 1996 1997
Lennox 24 Columbus, -- 12,900,000 12,900,000 53,750 December November 40 years
OH 1996 1997
West St. Louis, 4,985,000 12,815,000 17,800,000 53,396 April November 40 years
Olive 16 MO 1997 1997
Studio 30 Houston, 6,023,000 20,377,000 26,400,000 84,904 May November 40 years
TX 1997 1997
Huebner San Antonio, 3,006,000 13,894,000 16,900,000 57,892 June November 40 years
Oaks 24 TX 1997 1997
First Houston, -- 19,100,000 19,100,000 39,792 December November 40 years
Colony 24 TX 1997 1997
Oakview 24 Omaha, -- 16,700,000 16,700,000 34,792 February November 40 years
NE 1998 1997
Leawood Kansas 3,714,000 12,086,000 15,800,000 25,179 December November 40 years
Town City, 1998 1997
Center 20 MO
Unallocated capitalized -- 171,386 171,386 712 N/A December 40 years
acquisition costs 1997
Totals $32,330,000 $182,141,386 $214,471,386 $659,160
<TABLE\>
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The Company's Proxy Statement for its Annual Meeting of
Shareholders to be held on May 13, 1998 (the "Proxy Statement"),
contains under the captions "Election of Trustee" and "Compliance
with Section 16(a) of the Securities Exchange Act of 1934"
certain information required by Item 10 of Form 10-K, which
information is incorporated herein by this reference.
ITEM 11. EXECUTIVE COMPENSATION.
The Proxy Statement contains under the captions "Election of
Trustee Compensation of Trustees" and "Executive Compensation
and Other Information" certain information required by Item 11 of
Form 10-K, which information is incorporated herein by this
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.
The Proxy Statement contains under the caption "Ownership of
Company Shares" certain information required by Item 12 of Form
10-K, which information is incorporated herein by this reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Peter C. Brown, Chairman of the Board of the Company, is
President of AMCE, Executive Vice President of AMC and Chief
Financial Officer of AMCE and AMC. All of the Company's existing
Properties were acquired from AMCE or its affiliates and have
been leased-back to AMC. Reference is made to Item 2 of this
Form 10-K for information with respect to the purchase prices and
lease terms in connection with such Properties and the manner in
which such prices and terms were arrived at. Mr. Brown had no
direct financial interest in such transactions.
For information with respect to indebtedness owed to the Company
by Robert L. Harris, President and Chief Development Officer of
the Company, and David M. Brain, Chief Financial Officer and
Secretary of the Company, reference is made to the Proxy
Statement under the caption "Executive Compensation and Other
Information" which is incorporated herein by this reference.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K.
(a) Exhibits, Financial Statements and Financial Statement
Schedules:
1. Financial Statements:
Report of Independent Auditors
Balance Sheet as of December 31, 1997
<PAGE>
Statement of Income for the period from August 29,
1997 to December 31, 1997.
Statement of Changes in Shareholders' Equity for
the period from August 29, 1997 to December 31,
1997.
Statement of Cash Flows for the period from August
29, 1997 to December 31, 1997.
Notes to Financial Statements.
2. Financial Statement Schedules:
Real Estate and Accumulated Depreciation
(b) Exhibits
Exhibit No. Description
3.1 Declaration of Trust of the Company (filed as Exhibit
4.1 to the Company's Registration Statement on Form
S-11 and S-3 (Registration No. 333-35281) filed on
September 10, 1997 and incorporated herein by
reference).
3.2 Amended and Restated Declaration of Trust of the
Company (filed as Exhibit 4.2 to Amendment No. 1 to the
Company's Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on October 28, 1997
and incorporated herein by reference).
3.3 Bylaws of the Company (filed as Exhibit 4.3 to the
Company's Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on September 10,
1997 and incorporated herein by reference).
3.4 Amended Bylaws of the Company (filed as Exhibit 4.4 to
Amendment No. 2 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on November 5, 1997 and incorporated herein by
reference).
3.5 Form of share certificate for common shares of
beneficial interest of Company (filed as Exhibit 4.5 to
Amendment No. 1 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on October 28, 1997 and incorporated herein by
reference).
10.1 Form of Agreement of Sale and Purchase between the
Company and American Multi-Cinema, Inc. (filed as
Exhibit 10.1 to Amendment No. 3 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on November 13, 1997
and incorporated herein by reference).
<PAGE>
10.2 Form of Option Agreement between the Company and
American Multi-Cinema, Inc. (filed as Exhibit 10.2 to
Amendment No. 3 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on November 13, 1997 and incorporated herein by
reference).
10.3 Form of Option Agreement between the Company and Clip
Funding, Limited Partnership (filed as Exhibit 10.3 to
Amendment No. 3 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on November 13, 1997 and incorporated herein by
reference).
10.4 Form of AMCE Right to Purchase Agreement between the
Company and AMC Entertainment Inc. (filed as Exhibit
10.4 to Amendment No. 3 to the Company's Registration
Statement on Form S-11 and S-3 (Registration No. 333-
35281) filed on November 13, 1997 and incorporated
herein by reference).
10.5 Form of Lease entered into between the Company and
American Multi-Cinema, Inc. (filed as Exhibit 10.5 to
Amendment No. 3 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on November 13, 1997 and incorporated herein by
reference).
10.6 Form of Guaranty of Lease entered into between the
Company and AMC Entertainment, Inc. (filed as Exhibit
10.6 to Amendment No. 3 to the Company's Registration
Statement on Form S-11 and S-3 (Registration No. 333-
35281) filed on November 13, 1997 and incorporated
herein by reference).
10.7 Credit Agreement, dated as of March 2, 1998, among
Entertainment Properties Trust, as Borrower, EPT
Downreit, Inc., as Subsidiary Guarantor, The Bank of
New York, as a Lender, The Bank of Nova Scotia, New
York Agency, as a Lender, Goldman Sachs Mortgage
Company, as a Lender, Bank Leumi USA, as a Lender, The
Bank of New York, as Administrative Agent, The Bank of
Nova Scotia, New York Agency and Goldman Sachs Mortgage
Company, as Co-Syndication Agents and The Bank of Nova
Scotia, New York Agency, and Goldman Sachs Mortgage
Company, as Co-Documentation Agents, together with the
Form of Note.
10.8 First Amendment to Credit Agreement, dated as of March
18, 1998, among Entertainment Properties Trust, as
Borrower, EPT Downreit, Inc., as Subsidiary Guarantor,
The Bank of New York, as a Lender, The Bank of Nova
Scotia, New York Agency, as a Lender, Goldman Sachs
Mortgage Company, as a Lender, Bank Leumi USA, as a
Lender, The Bank of New York, as Administrative Agent,
The Bank of Nova Scotia, New York Agency and Goldman
Sachs Mortgage Company, as Co-Syndication Agents and
The Bank of Nova Scotia, New York Agency, and Goldman
Sachs Mortgage Company, as Co-Documentation Agents.
10.9 Form of Indemnification Agreement entered into between
the Company and each of its trustees and officers
(filed as Exhibit 10.8 to Amendment No. 1 to the
Company's Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on October 28, 1997
and incorporated herein by reference).**
<PAGE>
10.10 1997 Share Incentive Plan (filed as Exhibit 10.9 to
Amendment No. 2 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on November 5, 1997 and incorporated herein by
reference).**
10.11 Deferred Compensation Plan for Non-Employee Trustees
(filed as Exhibit 10.10 to Amendment No. 2 to the
Company's Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on November 5, 1997
and incorporated herein by reference).**
10.12 Annual Incentive Program (filed as Exhibit 10.11 to
Amendment No. 2 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-35281) filed
on November 5, 1997 and incorporated herein by
reference).**
10.13 Employment Agreement with Robert L. Harris (filed as
Exhibit 10.12 to Amendment No. 3 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on November 13, 1997
and incorporated herein by reference).**
10.14 Employment Agreement with David M. Brain (filed as
Exhibit 10.13 to Amendment No. 3 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on November 13, 1997
and incorporated herein by reference).**
21 Subsidiaries of the Company.
27 Financial Data Schedule.
___________________________
** Management contracts or compensatory plans or arrangements
required to be identified by Item 13(a).
<PAGE>
INDEX OF EXHIBITS
Exhibit No. Description Page
3.1 Declaration of Trust of the Company (filed as *
Exhibit 4.1 to the Company's Registration
Statement on Form S-11 and S-3 (Registration
No. 333-35281) filed on September 10, 1997
and incorporated herein by reference).
3.2 Amended and Restated Declaration of Trust of *
the Company (filed as Exhibit 4.2 to
Amendment No. 1 to the Company's Registration
Statement on Form S-11 and S-3 (Registration
No. 333-35281) filed on October 28, 1997 and
incorporated herein by reference).
3.3 Bylaws of the Company (filed as Exhibit 4.3 to *
the Company's Registration Statement on Form
S-11 and S-3 (Registration No. 333-35281)
filed on September 10, 1997 and incorporated
herein by reference).
3.4 Amended Bylaws of the Company (filed as Exhibit *
4.4 to Amendment No. 2 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on
November 5, 1997 and incorporated herein by
reference).
3.5 Form of share certificate for common shares of *
beneficial interest of Company (filed as
Exhibit 4.5 to Amendment No. 1 to the
Company's Registration Statement on Form S-11
and S-3 (Registration No. 333-35281) filed on
October 28, 1997 and incorporated herein by
reference).
10.1 Form of Agreement of Sale and Purchase between *
the Company and American Multi-Cinema, Inc.
(filed as Exhibit 10.1 to Amendment No. 3 to
the Company's Registration Statement on Form
S-11 and S-3 (Registration No. 333-35281)
filed on November 13, 1997 and incorporated
herein by reference).
10.2 Form of Option Agreement between the Company *
and American Multi-Cinema, Inc. (filed as
Exhibit 10.2 to Amendment No. 3 to the
Company's Registration Statement on Form S-11
and S-3 (Registration No. 333-35281) filed on
November 13, 1997 and incorporated herein by
reference).
10.3 Form of Option Agreement between the Company *
and Clip Funding, Limited Partnership (filed
as Exhibit 10.3 to Amendment No. 3 to the
Company's Registration Statement on Form S-11
and S-3 (Registration No. 333-35281) filed on
November 13, 1997 and incorporated herein by
reference).
<PAGE>
10.4 Form of AMCE Right to Purchase Agreement between *
the Company and AMC Entertainment Inc. (filed
as Exhibit 10.4 to Amendment No. 3 to the
Company's Registration Statement on Form S-11
and S-3 (Registration No. 333-35281) filed on
November 13, 1997 and incorporated herein by
reference).
10.5 Form of Lease entered into between the Company *
and American Multi-Cinema, Inc. (filed as
Exhibit 10.5 to Amendment No. 3 to the
Company's Registration Statement on Form S-11
and S-3 (Registration No. 333-35281) filed on
November 13, 1997 and incorporated herein by
reference).
10.6 Form of Guaranty of Lease entered into between *
the Company and AMC Entertainment, Inc.
(filed as Exhibit 10.6 to Amendment No. 3 to
the Company's Registration Statement on Form
S-11 and S-3 (Registration No. 333-35281)
filed on November 13, 1997 and incorporated
herein by reference).
10.7 Credit Agreement, dated as of March 2, 1998, ____
among Entertainment Properties Trust, as
Borrower, EPT Downreit, Inc., as Subsidiary
Guarantor, The Bank of New York, as a Lender,
The Bank of Nova Scotia, New York Agency, as
a Lender, Goldman Sachs Mortgage Company, as
a Lender, Bank Leumi USA, as a Lender, The
Bank of New York, as Administrative Agent,
The Bank of Nova Scotia, New York Agency and
Goldman Sachs Mortgage Company, as Co-
Syndication Agents and The Bank of Nova
Scotia, New York Agency, and Goldman Sachs
Mortgage Company, as Co-Documentation Agents,
together with the Form of Note.
10.8 First Amendment to Credit Agreement, dated as ___
of March 18, 1998, among Entertainment
Properties Trust, as Borrower, EPT Downreit,
Inc., as Subsidiary Guarantor, The Bank of
New York, as a Lender, The Bank of Nova
Scotia, New York Agency, as a Lender, Goldman
Sachs Mortgage Company, as a Lender, Bank
Leumi USA, as a Lender, The Bank of New York,
as Administrative Agent, The Bank of Nova
Scotia, New York Agency and Goldman Sachs
Mortgage Company, as Co-Syndication Agents
and The Bank of Nova Scotia, New York Agency,
and Goldman Sachs Mortgage Company, as Co-
Documentation Agents.
10.9 Form of Indemnification Agreement entered into *
between the Company and each of its
trustees and officers (filed as Exhibit 10.8
to Amendment No. 1 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on October
28, 1997 and incorporated herein by
reference).**
<PAGE>
10.10 1997 Share Incentive Plan (filed as Exhibit *
10.9 to Amendment No. 2 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on
November 5, 1997 and incorporated herein by
reference).**
10.11 Deferred Compensation Plan for Non-Employee *
Trustees (filed as Exhibit 10.10 to Amendment
No. 2 to the Company's Registration Statement
on Form S-11 and S-3 (Registration No. 333-
35281) filed on November 5, 1997 and
incorporated herein by reference).**
10.12 Annual Incentive Program (filed as Exhibit *
10.11 to Amendment No. 2 to the Company's
Registration Statement on Form S-11 and S-3
(Registration No. 333-35281) filed on
November 5, 1997 and incorporated herein by
reference).**
10.13 Employment Agreement with Robert L. Harris *
(filed as Exhibit 10.12 to Amendment No. 3 to
the Company's Registration Statement on Form
S-11 and S-3 (Registration No. 333-35281)
filed on November 13, 1997 and incorporated
herein by reference).**
10.14 Employment Agreement with David M. Brain *
(filed as Exhibit 10.13 to Amendment No. 3 to
the Company's Registration Statement on Form
S-11 and S-3 (Registration No. 333-35281)
filed on November 13, 1997 and incorporated
herein by reference).**
21 Subsidiaries of the Company. ____
27 Financial Data Schedule. ____
_____________________________________________
* Incorporated by reference from previous filings.
** Management contracts or compensatory plans or arrangements
required to be identified by Item 13(a).
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
ENTERTAINMENT PROPERTIES TRUST
By /s/ David M. Brain
David M. Brain, Chief
Financial Officer
Dated: March 26, 1998
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the registrant and in the capacities and on the
dates indicated:
SIGNATURE AND TITLE DATE
/s/ Peter C. Brown March 26, 1998
Peter C. Brown, Chairman of the Board
/s/ Robert L. Harris March 26, 1998
Robert L. Harris, President,
Chief Development
Officer and Trustee
/s/ David M. Brain March 26, 1998
David M. Brain,
Chief Financial Officer
/s/ Robert J. Druten March 26, 1998
Robert J. Druten, Trustee
/s/ Scott H. Ward March 26, 1998
Scott H. Ward, Trustee
/s/ Charles S. Paul March 26, 1998
Charles S. Paul, Trustee
</TABLE>
**************************************************************
CREDIT AGREEMENT
dated as of
March 2, 1998
among
ENTERTAINMENT PROPERTIES TRUST
and
The SUBSIDIARY GUARANTORS Party Hereto
AND
The LENDERS Party Hereto,
THE BANK OF NEW YORK,
as Administrative Agent,
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY,
AND GOLDMAN SACHS MORTGAGE COMPANY,
as Co-Syndication Agents
and
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY,
AND GOLDMAN SACHS MORTGAGE COMPANY,
as Co-Documentation Agents
-------------------
$200,000,000
-------------------
BNY CAPITAL MARKETS, INC.,
Arranger
**************************************************************
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to
which it is attached but is inserted for convenience of reference
only.
Page
Section 1. Definitions and Accounting Matters.. . . . . . . . .2
1.01 Certain Defined Terms.. . . . . . . . . . . . . . . .2
1.02 Accounting Terms and Determinations.. . . . . . . . 29
1.03 Types of Loans. . . . . . . . . . . . . . . . . . . 30
1.04 Terms Generally.. . . . . . . . . . . . . . . . . . 30
Section 2. The Commitments, Loans, Notes and Prepayments. . . 30
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . . 30
2.02 Borrowings. . . . . . . . . . . . . . . . . . . . . 31
2.03 Letters of Credit.. . . . . . . . . . . . . . . . . 31
2.04 Changes of the Commitments. . . . . . . . . . . . . 36
2.05 Commitment Fee. . . . . . . . . . . . . . . . . . . 36
2.06 Lending Offices.. . . . . . . . . . . . . . . . . . 36
2.07 Several Obligations; Remedies Independent.. . . . . 36
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . 37
2.09 Optional Prepayments and Conversions or
Continuations of Loans. . . . . . . . . . . . . . 37
2.10 Mandatory Prepayments.. . . . . . . . . . . . . . . 38
Section 3. Payments of Principal and Interest.. . . . . . . . 38
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . 38
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . 38
Section 4. Payments; Pro Rata Treatment; Computations; Etc. . 39
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . 39
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . 41
4.03 Computations. . . . . . . . . . . . . . . . . . . . 41
<PAGE>
4.04 Minimum Amounts.. . . . . . . . . . . . . . . . . . 41
4.05 Certain Notices.. . . . . . . . . . . . . . . . . . 41
4.06 Non-Receipt of Funds by the Administrative Agent. . 42
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . 43
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . 45
5.01 Additional Costs. . . . . . . . . . . . . . . . . . 45
5.02 Limitation on Types of Loans. . . . . . . . . . . . 47
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . 47
5.04 Treatment of Affected Loans.. . . . . . . . . . . . 47
5.05 Compensation. . . . . . . . . . . . . . . . . . . . 48
5.08 Replacement of Lenders. . . . . . . . . . . . . . . 51
Section 6. Guarantee. . . . . . . . . . . . . . . . . . . . . 52
6.01 The Guarantee.. . . . . . . . . . . . . . . . . . . 52
6.02 Obligations Unconditional.. . . . . . . . . . . . . 52
6.03 Reinstatement.. . . . . . . . . . . . . . . . . . . 53
6.04 Subrogation.. . . . . . . . . . . . . . . . . . . . 53
6.05 Remedies. . . . . . . . . . . . . . . . . . . . . . 54
6.06 Instrument for the Payment of Money.. . . . . . . . 54
6.07 Continuing Guarantee. . . . . . . . . . . . . . . . 54
6.08 Rights of Contribution. . . . . . . . . . . . . . . 54
6.09 General Limitation on Guarantee Obligations.. . . . 55
Section 7. Conditions.. . . . . . . . . . . . . . . . . . . . 55
7.01 Effective Date. . . . . . . . . . . . . . . . . . . 55
7.02 Initial and Subsequent Extensions of Credit.. . . . 60
7.03 Addition of Eligible Properties to the Borrowing
Base. . . . . . . . . . . . . . . . . . . . . . . 61
Section 8. Representations and Warranties.. . . . . . . . . . 63
8.01 Organization; Powers. . . . . . . . . . . . . . . . 64
8.02 Authorization; Enforceability . . . . . . . . . . . 64
8.03 Approvals.. . . . . . . . . . . . . . . . . . . . . 65
8.04 No Breach.. . . . . . . . . . . . . . . . . . . . . 65
8.05 Financial Condition; No Material Adverse Change.. . 65
8.06 Properties. . . . . . . . . . . . . . . . . . . . . 65
<PAGE>
8.07 Litigation. . . . . . . . . . . . . . . . . . . . . 66
8.08 Environmental Matters.. . . . . . . . . . . . . . . 66
8.09 Compliance with Laws and Agreements.. . . . . . . . 68
8.10 Investment Company Act. . . . . . . . . . . . . . . 69
8.11 Public Utility Holding Company Act. . . . . . . . . 69
8.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . 69
8.13 ERISA.. . . . . . . . . . . . . . . . . . . . . . . 69
8.14 True and Complete Disclosure. . . . . . . . . . . . 69
8.15 Use of Credit.. . . . . . . . . . . . . . . . . . . 70
8.16 Material Agreements and Liens.. . . . . . . . . . . 70
8.17 Capitalization. . . . . . . . . . . . . . . . . . . 70
8.18 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . 71
8.19 REIT Status.. . . . . . . . . . . . . . . . . . . . 72
8.20 Real Estate Investment Trust Structure. . . . . . . 72
8.21 Ground Leases.. . . . . . . . . . . . . . . . . . . 72
8.22 Leases. . . . . . . . . . . . . . . . . . . . . . . 72
8.23 Option Agreements and Right of First Refusal
Agreement.. . . . . . . . . . . . . . . . . . . . 72
8.24 Defaults. . . . . . . . . . . . . . . . . . . . . . 73
8.25 Absence of Liens. . . . . . . . . . . . . . . . . . 73
8.26 No Materially Adverse Contracts, Etc... . . . . . . 73
8.27 Initial Public Offering Registration Statement. . . 73
8.28 Year 2000 Issues. . . . . . . . . . . . . . . . . . 74
Section 9. Covenants of the Borrower. . . . . . . . . . . . . 74
9.01 Financial Statements and Other Information. . . . . 74
9.02 Notices of Material Events. . . . . . . . . . . . . 77
9.03 Existence, REIT Status, Etc.. . . . . . . . . . . . 78
9.04 Insurance.. . . . . . . . . . . . . . . . . . . . . 79
9.05 Prohibition of Fundamental Changes. . . . . . . . . 79
9.06 Liens . . . . . . . . . . . . . . . . . . . . . . . 80
9.07 Indebtedness. . . . . . . . . . . . . . . . . . . . 81
9.08 Investments.. . . . . . . . . . . . . . . . . . . . 82
9.09 Restricted Payments.. . . . . . . . . . . . . . . . 82
9.10 Certain Financial Covenants.. . . . . . . . . . . . 83
9.11 Hedging Agreements. . . . . . . . . . . . . . . . . 84
9.12 Lines of Business.. . . . . . . . . . . . . . . . . 84
9.13 Transactions with Affiliates. . . . . . . . . . . . 84
9.14 Restrictive Agreements. . . . . . . . . . . . . . . 85
<PAGE>
9.15 Use of Proceeds.. . . . . . . . . . . . . . . . . . 85
9.16 Ownership of Subsidiaries.. . . . . . . . . . . . . 85
9.17 Modifications of Certain Documents. . . . . . . . . 86
9.18 Further Assurances. . . . . . . . . . . . . . . . . 86
9.19 Environmental Compliance. . . . . . . . . . . . . . 86
9.20 Qualified Ground Leases.. . . . . . . . . . . . . . 87
9.21 Qualified Leases. . . . . . . . . . . . . . . . . . 87
9.22 Real Estate Properties. . . . . . . . . . . . . . . 88
9.23 Borrowing Base Properties; Additional Subsidiary
Guarantors. . . . . . . . . . . . . . . . . . . . 88
Section 10. Events of Default.. . . . . . . . . . . . . . . . 89
Section 11. The Administrative Agent. . . . . . . . . . . . . 93
11.01 Appointment, Powers and Immunities.. . . . . . . . 93
11.02 Reliance by Administrative Agent.. . . . . . . . . 94
11.03 Defaults.. . . . . . . . . . . . . . . . . . . . . 94
11.04 Rights as a Lender.. . . . . . . . . . . . . . . . 94
11.05 Indemnification. . . . . . . . . . . . . . . . . . 95
11.06 Non-Reliance on Administrative Agent and Other
Lenders.. . . . . . . . . . . . . . . . . . . . . 95
11.07 Failure to Act.. . . . . . . . . . . . . . . . . . 96
11.08 Resignation or Removal of Administrative Agent.. . 96
Section 12. Miscellaneous.. . . . . . . . . . . . . . . . . . 97
12.01 Notices. . . . . . . . . . . . . . . . . . . . . . 97
12.02 Waiver.. . . . . . . . . . . . . . . . . . . . . . 97
12.03 Amendments, Etc. . . . . . . . . . . . . . . . . . 97
12.04 Expenses, Etc. . . . . . . . . . . . . . . . . . . 98
12.05 Successors and Assigns.. . . . . . . . . . . . . . 99
12.06 Assignments and Participations.. . . . . . . . . . 99
12.07 Survival.. . . . . . . . . . . . . . . . . . . . .101
12.08 Counterparts.. . . . . . . . . . . . . . . . . . .102
12.09 Governing Law; Submission to Jurisdiction. . . . .102
12.10 WAIVER OF JURY TRIAL.. . . . . . . . . . . . . . .103
12.11 Captions.. . . . . . . . . . . . . . . . . . . . .103
12.12 Treatment of Certain Information;
Confidentiality.. . . . . . . . . . . . . . . . .103
12.13 Co-Arrangers.. . . . . . . . . . . . . . . . . . .104
12.14 Interest Rate Limitation.. . . . . . . . . . . . .105
<PAGE>
12.15 Construction of Documents. . . . . . . . . . . . .105
SCHEDULE I - Material Agreements
SCHEDULE II - Litigation and Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Initial Eligible Properties
SCHEDULE V - Optional Eligible Properties
SCHEDULE VI - Qualified Ground Lease Requirements
SCHEDULE VII - List of Environmental Reports
SCHEDULE VIII - List of Title Policies and Commitments
EXHIBIT A - Form of Note
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C - Form of Opinion of Counsel to the Obligors
EXHIBIT D - Form of Opinion of Special New York
Counsel to the Obligors
EXHIBIT E - Form of Qualified Lease
EXHIBIT F - Form of Qualified Lease Guaranty
EXHIBIT G-1 - Form of Opinion of Counsel to the
Obligors with respect to Qualified Leases
EXHIBIT G-2 - Form of Opinion of Counsel to Lessees
and Guarantors with respect to Qualified
Leases
EXHIBIT H - Form of Tax and Securities Law Opinion
EXHIBIT I - Form of Ground Lessor Estoppel
EXHIBIT J - Form of Estoppel for Lessee under a
Qualified Lease
EXHIBIT K - Form of Estoppel for a Guarantor of a
Qualified Lease
EXHIBIT L - Form of AMC Estoppel (Right of First
Refusal)
EXHIBIT M - Form of AMCE Subsidiary Estoppel (Option
Agreements)
EXHIBIT N - Form of Assignment and Acceptance
EXHIBIT O - Form of Notice of Borrowing
EXHIBIT P - Form of Interest Election Request
EXHIBIT Q - Form of Local Counsel Opinion
EXHIBIT R - Form of Guarantee Assumption Agreement
<PAGE>
CREDIT AGREEMENT dated as of March 2, 1998, between:
ENTERTAINMENT PROPERTIES TRUST, a real estate investment trust duly
organized and validly existing under the laws of the State of
Maryland (the "Borrower"); each of the Subsidiaries of the Borrower
identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto and each Subsidiary of the Borrower that
becomes a "Subsidiary Guarantor" after the date hereof pursuant to
Section 9.23 (individually, a "Subsidiary Guarantor" and,
collectively, the "Subsidiary Guarantors" and, together with the
Borrower, the "Obligors"); each of the lenders that is a signatory
hereto identified under the caption "LENDERS" on the signature pages
hereto and each lender that becomes a "Lender" after the date hereof
pursuant to Section 12.06(b) (individually, a "Lender" and,
collectively, the "Lenders"); and THE BANK OF NEW YORK, a New York
banking corporation, as administrative agent for the Lenders (in
such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Borrower and the Subsidiary Guarantors are engaged as
an integrated group in businesses related to the Permitted Uses (as
hereinafter defined). The integrated operation requires financing
on such a basis that credit supplied to the Borrower be made
available from time to time to the Subsidiary Guarantors, as
required for the continued successful operation of the Obligors,
separately, and the integrated operation as a whole. In that
connection, the Obligors have requested that the Lenders extend
credit to the Borrower (to be made available by the Borrower to the
Subsidiary Guarantors) in an aggregate principal or face amount not
exceeding $200,000,000 to finance the operations of the Obligors
for the Permitted Uses.
To induce the Lenders to extend such credit, the
Obligors, the Lenders and the Administrative Agent propose to enter
into this Agreement, pursuant to which the Lenders will make loans
to, and issue letters of credit for the account of, the Borrower,
and each Subsidiary Guarantor will guarantee the credit so extended
to the Borrower. Each of the Obligors expects to derive benefit,
directly or indirectly, from the credit so extended to the
Borrower, both in its separate capacity and as a member of the
integrated group, since 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.
The Lenders are prepared to extend such credit upon the
terms and conditions hereof, and, accordingly, the parties hereto
agree as follows:
<PAGE>
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in
the plural and vice versa):
"Affiliate" means any Person that directly or
indirectly controls, or is under common control with, or is
controlled by, the Borrower and, if such Person is an individual,
any member of the immediate family (including parents, spouse,
children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members
of such immediate family and any Person who is controlled by any
such member or trust. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and
"under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or
otherwise), provided that, in any event, any Person that owns
directly or indirectly securities having 10% or more of the
voting power for the election of directors or other governing
body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing,
(a) no individual shall be an Affiliate solely by reason of his
or her being a director, officer or employee of the Borrower or
any of its Subsidiaries and (b) none of the Wholly Owned
Subsidiaries of the Borrower shall be Affiliates.
"AMC" means American Multi-Cinema, Inc., a Missouri
corporation, and its Subsidiaries.
"AMC Change in Control" means:
(a) the direct or indirect sale, lease, exchange or
other transfer of all or substantially all of the assets of
AMC to any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the SEC Rules and
Regulations thereunder as in effect on the Effective Date)
of Persons acting in concert as a partnership or other
"group" with the effect that AMCE is the beneficial owner
(within the meaning of the Securities Exchange Act of 1934
as in effect on the Effective Date) of less than 50% of the
votes eligible to be cast on any matter of the then
outstanding Voting Stock of the resulting, surviving or
transferee Person or Persons;
<PAGE>
(b) the merger or consolidation of AMC with or into
another corporation with the effect that AMCE is the
beneficial owner (within the meaning of the Securities
Exchange Act of 1934 as in effect on the Effective Date) of
less than 50% of the votes eligible to be cast on any matter
of the then outstanding Voting Stock of the surviving
corporation of such merger or the corporation resulting from
such consolidation (other than a merger of AMC with AMCE);
(c) the replacement of a majority of the Board of
Directors of AMC, over a two-year period, from the directors
who constituted the Board of Directors of AMC (or
replacement directors approved by the Board of Directors of
AMC), as constituted at the beginning of such period; or
(d) a Person or group of Persons other than AMCE
shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases, merger or
consolidation or otherwise, have become the beneficial owner
(within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of Voting Stock of AMC (on a fully-
diluted basis) having 33-1/3% of the votes eligible to be
cast on any matter by such Voting Stock.
"AMCE" means AMC Entertainment Inc., a Delaware
corporation.
"AMCE Change in Control" means:
(a) the direct or indirect sale, lease, exchange or
other transfer of all or substantially all of the assets of
AMCE to any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the SEC Rules and
Regulations thereunder as in effect on the Effective Date)
of Persons acting in concert as a partnership or other
"group" with the effect that the Durwood Interests are the
beneficial owners (within the meaning of the Securities
Exchange Act of 1934 as in effect on the Effective Date) of
less than 50% of the votes eligible to be cast on any matter
of the then outstanding Voting Stock of the resulting,
surviving or transferee Person or Persons;
(b) the merger or consolidation of AMCE with or into
another corporation with the effect that the Durwood
Interests are the beneficial owners (within the meaning of
the Securities Exchange Act of 1934 as in effect on the
Effective Date) of less than 50% of the votes eligible to be
cast on any matter of the then outstanding Voting Stock of
the surviving corporation of such merger or the corporation
resulting from such consolidation;
<PAGE>
(c) the replacement of a majority of the Board of
Directors of AMCE, over a two-year period, from the
directors who constituted the Board of Directors of AMCE (or
replacement directors approved by the Board of Directors of
AMCE), as constituted at the beginning of such period; or
(d) a Person or group of Persons other than the
Durwood Interests shall, as a result of a tender or exchange
offer, open market purchases, privately negotiated
purchases, merger or consolidation or otherwise, have become
the beneficial owner (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934) of Voting Stock of AMCE
(on a fully-diluted basis) having 33-1/3% of the votes
eligible to be cast on any matter by such Voting Stock.
It is understood that, for purposes of determining votes eligible
to be cast by any Voting Stock of AMCE, in all matters in which
AMCE's Class B Stock, par value $0.66-2/3 per share ("Class B
Stock"), and Common Stock, par value $0.66-2/3 per share ("Common
Stock"), are entitled to vote together as a single class, on the
date hereof each outstanding share of Common Stock has one vote
and each outstanding share of Class B Stock has ten votes.
"AMCE Lease Guaranty" means a guaranty in the form of
Exhibit F duly executed and delivered by AMCE to the applicable
Obligor with respect to AMC's obligations for the initial term
under a Qualified AMC Lease, as the same may be amended, modified
or supplemented in accordance with the terms of this Agreement
(any material changes to such form requiring the prior approval
of the Majority Lenders).
"AMCE Subsidiaries" means, collectively, the AMCE
Subsidiaries that are parties to the Option Agreements.
"Applicable Lending Office" means, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or of
an affiliate of such Lender) designated for such Type of Loan on
the signature pages hereof or such other office of such Lender
(or of an affiliate of such Lender) as such Lender may from time
to time specify to the Administrative Agent and the Borrower as
the office by which its Loans of such Type are to be made and
maintained.
"Applicable Margin" means, with respect to any Base
Rate Loan or Eurodollar Loan, or with respect to the commitment
fees payable hereunder, as the case may be, during any Interest
Accrual Period (as defined below), the rate per annum set forth
below under the caption "Base Rate Margin", "Eurodollar Margin" or
"Commitment Fee Rate", respectively, based on the Total Leverage
Ratio for such Interest Accrual Period:
<PAGE>
Total Leverage Base Rate Eurodollar Commitment
Ratio: Loan Margin Loan Margin Fee Rate
>40% 0.200% 1.450% 0.25%
>25% to <40% 0.100% 1.350% 0.25%
<25% 0.000% 1.250% 0.20%
Notwithstanding the foregoing, in the event the
Borrower obtains an investment grade rating from either S&P or
Moody's, (a) the Applicable Margins for Base Rate Loans and
Eurodollar Loans will be reduced by 0.25% (but not below 0) and
(b) the commitment fee rate will be reduced to 0.175%.
For purposes hereof, an "Interest Accrual Period" means
(i) initially, the period commencing on the Effective Date to but
not including the Quarterly Date falling on or nearest to
March 31, 1998, and (ii) thereafter, the period commencing on a
Quarterly Date to but not including the immediately following
Quarterly Date. The Total Leverage Ratio for the initial
Interest Accrual Period shall be determined on the basis of the
certificate of a Financial Officer of the Borrower delivered
pursuant to Section 7.01(h). The Total Leverage Ratio for any
Interest Accrual Period after the initial Interest Accrual Period
shall be determined on the basis of a certificate of a Financial
Officer of the Borrower setting forth a calculation of the Total
Leverage Ratio as at the last day of the fiscal quarter
immediately preceding such Interest Accrual Period (i.e., the
Total Leverage Ratio for the Interest Accrual Period commencing
April 1, 1998 shall be determined on the basis of the Total
Leverage Ratio as at March 31, 1998, the Total Leverage Ratio for
the Interest Accrual Period commencing July 1, 1998 shall be
determined on the basis of the Total Leverage Ratio as at June
30, 1998, and so forth), each of which certificates shall be
delivered together with the financial statements for the fiscal
quarter on which such calculation is based.
Anything in this Agreement to the contrary
notwithstanding, the Applicable Margin for Base Rate Loans,
Eurodollar Loans and commitment fees shall be the highest rate
per annum provided for above (i.e., 0.200% with respect to Base
Rate Loans, 1.450% with respect to Eurodollar Loans and 0.25%
with respect to commitment fees) (A) during any period when an
Event of Default shall have occurred and be continuing, including
the determination of the Post-Default Rate, or (B) if a
certificate of a Financial Officer of the Borrower shall not be
delivered as provided above prior to the beginning of any
Interest Accrual Period, for such period commencing on the first
day of such Interest Accrual Period and ending on the date of
delivery of such certificate.
<PAGE>
"1933 Act" means the Securities Act of 1933, as
amended.
"Arranger" means BNY Capital Markets, Inc. in such
capacity.
"Assignment and Acceptance" means an Assignment and
Acceptance substantially in the form of Exhibit N hereto, duly
executed by the parties thereto, and consented to by the
Borrower, the Administrative Agent and the Issuing Lender to the
extent required under section 12.06(b).
"Bankruptcy Code" means the Federal Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" means, for any day, a rate per annum equal
to the higher of (a) the Prime Rate for such day or (b) the
Federal Funds Rate for such day plus 1/2 of 1%. Each change in
any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Base Rate Loans" means Loans that bear interest at
rates based upon the Base Rate.
"Basic Documents" means, collectively, the Loan
Documents, the Option Agreements, the Right of First Refusal
Agreement, any Qualified Lease and any AMCE Lease Guaranty
relating to a Qualified Lease.
"Basle Accord" means the proposals for risk-based
capital framework described by the Basle Committee on Banking
Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, modified and supplemented
and in effect from time to time or any replacement thereof.
"BNY" means The Bank of New York.
"Borrowing Base" means, at any time, the then current
Borrowing Base Properties.
"Borrowing Base Certificate" means a certificate of a
Financial Officer of the Borrower, substantially in the form of
Exhibit B and appropriately completed.
<PAGE>
"Borrowing Base Properties" means, as of any date of
determination, Eligible Properties which become Borrowing Base
Properties pursuant to Section 7.03 and which, thereafter, (a)
continue to satisfy, in all material respects, all of the
conditions contained in the definition of an Eligible Property or
(b) are not subject to (i) a Qualified Lease under which an event
of default (or default for which any Obligor (having knowledge
thereof) has failed to give any notice required as a condition
precedent to causing such default to be an event of default)
shall have occurred and be continuing or (ii) a related lease
guaranty under which a default shall have occurred and be
continuing or (iii) a casualty or condemnation (or other taking)
which releases the applicable lessee from any obligation to (A)
pay rent (other than an abatement during the applicable
repair/restoration period or a partial abatement of rent as the
result of a partial condemnation or taking which does not result
in the termination of the applicable Qualified Lease or (B)
otherwise comply with the terms of its respective lease;
provided, however, in the case of clause (A), Net Operating
Income used in determining the Borrowing Base Value shall be
adjusted to reflect any such rent abatement or reduction. The
Borrower, subject to the terms and conditions of this Agreement,
will be permitted, from time to time, to identify Eligible
Properties to add or remove from the Borrowing Base, provided
that such addition or removal does not otherwise create a Default
under this Agreement. As of the date of this Agreement the
Borrowing Base Properties consist of the Initial Borrowing Base
Properties.
"Borrowing Base Leverage Ratio" means, at any time, the
ratio of (a) the portion of Total Indebtedness which is unsecured
by any Lien to (b) the Borrowing Base Value.
"Borrowing Base Value" means, for Borrowing Base
Properties as of the test date, the aggregate Net Operating
Income for such Borrowing Base Properties on the test date
divided by a capitalization rate of 10.75%; provided,
however, (a) the Borrowing Base Value of any Eligible Property
for which the lessee or its lease guarantor has a consolidated
net worth less than $25,000,000 shall equal the Net Operating
Income of such property divided by a capitalization rate of
12.5%, (b) no more than 15% of the Borrowing Base Value may be
ascribed to the value of any single Eligible Property and (c) the
Borrowing Base Value shall be reduced by an amount equal to the
amount, if any, by which (i) the aggregate costs (as determined
by the Administrative Agent in its reasonable opinion) to
remediate all existing Environmental Defects with respect to
Eligible Properties then in the Borrowing Base exceeds $5,000,000
and (ii) the aggregate cost (as determined by the Administrative
Agent in its reasonable opinion) to fix all existing Structural
Defects with respect to Borrowing Base Properties exceeds
$5,000,000.
"Buildings" means, individually and collectively, the
buildings, structures and improvements now or hereafter located
on the Real Estate Properties.
<PAGE>
"Business Day" means any day other than (a) a Saturday
or Sunday or (b) a day on which commercial banks are authorized
or required to close in New York City and (c) if such day relates
to a borrowing of, a payment or prepayment of principal of or
interest on, a Conversion of or into, or an Interest Period for,
a Eurodollar Loan or a notice by the Borrower with respect to any
such borrowing, payment, prepayment, Conversion or Interest
Period, a day on which dealings in Dollar deposits are not
carried out in the London interbank market.
"Capital Improvement Reserve" means, with respect to a
Borrowing Base Property, an amount equal to the product obtained
by multiplying (a) the aggregate rental income and other income
from the operation of such Borrowing Base Property for the most
recently completed fiscal quarter by (b) 0% during the first two
years of operation of such Borrowing Base Property, 0.75% during
the third through seventh years of operation of such Borrowing
Base Property, 1.00% during the eight through twelfth years of
operation of such Borrowing Base Property and 1.50% at any time
after the completion of the twelfth year of operation of such
Borrowing Base Property.
"Capital Lease Obligations" means, for any Person, all
obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) Property
to the extent such obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the
amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Cash or Cash Equivalents" means (a) unrestricted cash
(excluding, without limitation, until forfeited or otherwise
entitled to be retained by the Borrower or any of its
Subsidiaries, tenant security or other restricted deposits) or
(b) any unrestricted investment (valued at fair market value)
which qualifies as a Permitted Investment. For the purposes
hereof, the term "unrestricted" means the specified asset is not
subject to any Liens in favor of any Person.
"Change in Control" means, with respect to any Person
(other than AMC or AMCE), (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of
1934 and the SEC Rules and Regulations thereunder as in effect on
the date hereof) of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock (or equivalent equity interest) of any
such Person; (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors or trustees (or
equivalent body) of such Person by Persons who were neither
(i) nominated by the board of directors or trustees (or
equivalent body) <PAGE> of such Person nor (ii) appointed by directors
or trustees (or equivalent parties) so nominated; or (c) the
acquisition of direct or indirect Control of such Person by any
Person or group.
"CLIP" means Clip Funding, Limited Partnership, a
Delaware limited partnership.
"Co-Arrangers" means, collectively, the Syndication
Agents and the Documentation Agents.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commission" means the Securities and Exchange
Commission.
"Commitment" means, as to each Lender, the obligation
of such Lender to make Loans, and to issue or participate in
Letters of Credit pursuant to Section 2.03, in an aggregate
principal or face amount at any one time outstanding up to but
not exceeding the amount set opposite the name of such Lender on
the signature pages hereof under the caption "Commitment" or, in
the case of a Person that becomes a Lender pursuant to an
assignment permitted under Section 12.06(b), as specified in the
respective instrument of assignment pursuant to which such
assignment is effected (as the same may be reduced at any time or
from time to time pursuant to Section 2.04). The original
aggregate principal amount of the Commitments is $200,000,000.
"Commitment Percentage" means, with respect to any
Lender, the ratio of (a) the amount of the Commitment of such
Lender to (b) the aggregate amount of the Commitments of all of
the Lenders.
"Commitment Termination Date" means March 1, 2001.
"Conforming Assets" means, collectively, Real Estate
Properties that are used for any of the Permitted Uses.
"Continue", "Continuation" and "Continued" refer to the
continuation pursuant to Section 2.09 of a Eurodollar Loan from
one Interest Period to the next Interest Period for such Loan.
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise.
<PAGE>
"Convert", "Conversion" and "Converted" refer to a
conversion pursuant to Section 2.09 of one Type of Loans into
another Type of Loans, which may be accompanied by the transfer
by a Lender (at its sole discretion) of a Loan from one
Applicable Lending Office to another.
"Debt Service" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following:
(a) all regularly scheduled payments of principal of Indebtedness
(including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations), but excluding
optional prepayments made during such period plus (b) all
Interest Expense for such period.
"Default" means an Event of Default or an event that
with notice or lapse of time or both would become an Event of
Default.
"Development Costs" means all construction, development
and/or acquisition costs of Real Estate Properties Under
Construction, provided that for Real Estate Properties Under
Construction owned by any Partially-Owned Entity, the Development
Costs of such Real Estate Property Under Construction shall only
be the Borrower's pro rata share of the Development Costs of such
Real Estate Property Under Construction (based on the greater of
(a) the Borrower's percentage equity interest in such Partially-
Owned Entity or (b) the Borrower's obligation to provide funds to
such Partially-Owned Entity in connection with such Development
Costs.
"Disqualifying Condition" means, with respect to any
Real Estate Property (a) any Structural Defects which would cost,
in the aggregate, in excess of $1,000,000 to fix or (b) any
Environmental Defects which would cost, in the aggregate, in
excess of $1,000,000 to remediate, the amount of any such
Structural Defects or Environmental Defects to be determined by
the Administrative Agent in its reasonable opinion.
"Documentation Agents" means, collectively, The Bank of
Nova Scotia, New York Agency, and Goldman Sachs Mortgage Company
in such capacities.
"Dollars" and "$" means lawful money of the United
States of America.
"Durwood Interests" means (i) Stanley H. Durwood, his
spouse and any of his lineal descendants and their respective
spouses (collectively, the "Durwood Family") and any Affiliate of
any member of the Durwood Family, (ii) Stanley H. Durwood's
estate, or any trust <PAGE> established by Stanley H. Durwood, during
any period of administration prior to the distribution of assets
to beneficiaries who are Persons described in clause (iii) below,
(iii) any trust which is solely for the benefit of one or more
members of the Durwood Family (whether or not any member of the
Durwood Family is a trustee of such trust) or solely for the
benefit of one or more charitable organizations or solely for the
benefit of a combination of members of the Durwood Family and one
or more charitable organizations and (iv) any Subsidiary, any
employee stock purchase plan, stock option plan or other stock
incentive plan or program, retirement plan or automatic
reinvestment plan or any substantially similar plan of AMCE or
any Subsidiary or any Person holding securities of AMCE for or
pursuant to the terms of any such employee benefit plan;
provided, that if any lender or other Person shall foreclose on
or otherwise realize upon or exercise any remedy with respect to
any security interest in or Lien on any securities of AMCE held
by any Person listed in this clause (iv), then such securities
shall no longer be deemed to be held by Durwood Interests.
"EBITDA" means, for any period, the sum, for the
Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following:
(a) Net Operating Income from Real Estate Properties (calculated
before taxes, Interest Expense, extraordinary and unusual items)
for such period, plus (b) depreciation and amortization (to the
extent deducted in determining net operating income) for such
period, minus (c) all gains (or plus all losses) attributable to
the sale or other disposition of Properties or debt
restructurings in such period and minus (d) selling, general and
administrative expenses and other overhead expenses.
"Effective Date" means the date on which all of the
conditions specified in Section 7.01 are satisfied or waived.
"Eligible Properties" means, as at any date, those Real
Estate Properties located in the United States of America that
meet each of the following criteria:
(a) Are wholly-owned by the Borrower or its Subsidiaries or
leased by the Borrower or its Subsidiaries pursuant to
a Qualified Ground Lease to the Borrower or its
Subsidiaries, or owned or leased (pursuant to a
Qualified Ground Lease) in joint ventures in which the
Borrower (i) has at least a 50% equity interest, (ii)
is the managing general partner or equivalent and (iii)
has the ability to encumber such Real Estate Property;
<PAGE>
(b) Are leased to (i) AMC pursuant to a Qualified AMC Lease
or (ii) another third party pursuant to a Qualified
Third Party Lease and otherwise reasonably acceptable
to the Administrative Agent;
(c) Improvements required under the applicable Qualified
AMC Lease or Qualified Third Party Lease are completed
(as evidenced by a building certificate of occupancy ,
except in the case of the Initial Eligible Property
named Promenade 16) and operating free of material
construction or structural renovation;
(d) There are no associated title defects, Liens, springing
Liens or negative pledges, other than Permitted Liens;
(e) Are not subject to any Disqualifying Condition;
(f) The property will be used for a Permitted Use;
(g) Are in compliance with all laws, regulations and orders
of any Governmental Authority or regulatory authority
or agency applicable to it, except where the failure to
do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse
Effect; and
(h) For which the Borrower has provided the Administrative
Agent with historical or, if applicable, pro forma,
operating information in form, scope and substance
reasonably satisfactory to Agent.
"Engineering Report" means, as to each Initial Eligible
Property, Optional Eligible Property and any other Eligible
Property proposed to be included in the Borrowing Base, (a) a
property condition report prepared by a firm of licensed
engineers or (b) other evidence satisfactory to the
Administrative Agent, in either case addressing the engineering
and structural condition of the Buildings in question.
"Environmental Claim" means, with respect to any
Person, any written claim, demand or other communication
(collectively, a "claim") by any other Person alleging or
asserting such Person's liability for investigatory costs,
cleanup costs, governmental response costs, damages to natural
resources or other Property, personal injuries, fines or
penalties arising out of, based on or resulting from (i) the
presence, or Release into the environment, of any Hazardous
Material at any location, whether or not owned by such Person, or
(ii) circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law. The term "Environmental
<PAGE>
Claim" shall include, without limitation, any claim by any
Governmental Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment.
"Environmental Defect" means (a) any Release or
threatened Release, (b) any material violation of Environmental
Laws or (c) any Environmental Claim.
"Environmental Laws" means any and all present and
future Federal, state, local and foreign laws, rules or
regulations, and any orders or decrees, in each case as now or
hereafter in effect, relating to the regulation or protection of
human health, safety or the environment in connection with
emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment,
including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes.
"Environmental Report" means, as to each Initial
Eligible Property, Optional Eligible Property and any other
Eligible Property proposed to be included in the Borrowing Base,
an environmental survey and assessment prepared by a firm of
licensed engineers (familiar with the identification of toxic and
hazardous substances), such environmental survey and assessment
to be based upon physical on-site inspections by such firm, as
well as a historical review of the uses of such sites and
facilities. For purposes of this Agreement, the Environmental
Reports listed on Schedule VII are deemed acceptable by the
Administrative Agent and the Lenders.
"Equity Rights" means, 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" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
<PAGE>
"ERISA Affiliate" means any corporation or trade or
business that is a member of any group of organizations
(i) described in Section 414(b) or (c) of the Code of which the
Borrower is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under
Section 302(f) of ERISA and Section 412(n) of the Code, described
in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Event" means any of the following events or
conditions:
(a) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which the PBGC has
not by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet
the minimum funding standard of Section 412 of the Code or
Section 302 of ERISA, including, without limitation, the
failure to make on or before its due date a required
installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code); and any request for a waiver
under Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken
by the Borrower or an ERISA Affiliate to terminate any Plan;
(c) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Borrower or any ERISA Affiliate of a notice
from a Multiemployer Plan that such action has been taken by
the PBGC with respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate
that results in liability under Section 4201 or 4204 of
ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt
by the Borrower or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under
Section 4041A of ERISA;
<PAGE>
(e) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Borrower or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days; or
(f) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if the Borrower or an
ERISA Affiliate fails to timely provide security to the Plan
in accordance with the provisions of such Sections.
"Eurodollar Base Rate" means, for any Interest Period
for any Eurodollar Loan, the rate per annum appearing on
Page 3750 of the Dow Jones Markets Service (or on any successor
or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable
to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to
Dollar deposits in the London interbank market) at approximately
11:00 a.m. London time on the date two Business Days prior to the
first day of such Interest Period as the rate for Dollar deposits
having a term comparable to such Interest Period, provided that
if such rate does not appear on such page, or if such page shall
cease to be publicly available, or if the information contained
on such page, in the reasonable judgment of the Majority Lenders
shall cease accurately to reflect the rate offered by leading
banks in the London interbank market as reported by any publicly
available source of similar market data selected by the Majority
Lenders, the Eurodollar Base Rate means, for any Interest Period,
the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) quoted by BNY at approximately 11:00 a.m. London time
(or as soon thereafter as practicable) two Business Days prior to
the first day of such Interest Period for the offering by BNY to
leading banks in the London interbank market of Dollar deposits
having a term comparable to such Interest Period and in the
amount of the Eurodollar Loan to be made by BNY for such Interest
Period.
"Eurodollar Loans" means Loans that bear interest at
rates based on rates referred to in the definition of "Eurodollar
Base Rate" in this Section 1.01.
"Eurodollar Rate" means, for any Interest Period for
any Eurodollar Loan, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the
Administrative Agent to be equal to the Eurodollar Base Rate for
such Interest Period divided by 1 minus the Reserve Requirement
(if any) for such Interest Period.
"Event of Default" has the meaning assigned to such
term in Section 10.
<PAGE>
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
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 on such day, as published by
the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so published
for any Business Day, the Federal Funds Rate for such Business
Day shall be the average rate charged to BNY on such Business Day
on such transactions as determined by the Administrative Agent.
"FFO" means, for the Borrower and its Subsidiaries on a
consolidated basis, "funds from operations" as defined in
accordance with resolutions adopted by the Board of Governors of
the National Association of Real Estate Investment Trusts as in
effect on the Effective Date and as amended from time to time,
subject, however, to the provisions of Section 1.02(b).
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Borrower.
"Fixed Charges Ratio" means, as at any date, the ratio
of (a) EBITDA for the fiscal quarter ending on or most recently
ended prior to such date to (b) Total Fixed Charges for such
fiscal quarter.
"Foreign Lender" means any Lender that is organized
under the laws of a jurisdiction other than that in which the
Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"Funds Available for Distribution" means, on a cash
basis, FFO plus amortization and minus the aggregate amount of
capital expenditures and principal payments on Indebtedness.
"GAAP" means generally accepted accounting principles
applied on a basis consistent with those that, in accordance with
Section 1.02(a), are to be used in making the calculations for
purposes of determining compliance with this Agreement.
"Governmental Authority" means the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
<PAGE>
authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the
payment or maintenance of, or otherwise to be or become
contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person,
or an agreement to purchase, sell or lease (as lessee or lessor)
Property, products, materials, supplies or services primarily for
the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss,
and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other
similar instrument for the benefit of another Person, but
excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used
as verbs have the correlative meanings.
"Guarantee Assumption Agreement" means a Guarantee
Assumption Agreement substantially in the form of Exhibit R by a
Person that, pursuant to Section 9.23 is required to become a
"Subsidiary Guarantor" hereunder in favor of the Administrative
Agent.
"Hazardous Material" means, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives,
radioactive materials, asbestos, urea formaldehyde foam
insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCB's"), (b) any chemicals or other
materials or substances that are now or hereafter become defined
as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances", "toxic
pollutants", "contaminants", "pollutants" or words of similar
import under any Environmental Law and (c) any other chemical or
other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any
Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement. For purposes hereof, the
"credit exposure" at any time of any Person under an Hedging
Agreement to which such Person is a party shall be determined at
such time in accordance with the standard methods of calculating
credit exposure under similar arrangements as reasonably
prescribed from time to time by the Administrative Agent, taking
into account potential interest rate movements and the respective
termination provisions and notional principal amount and term of
such Hedging Agreement.
<PAGE>
"Indebtedness" means, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money
(whether by loan, the issuance and sale of debt securities or the
sale of Property to another Person subject to an understanding or
agreement, contingent or otherwise, to repurchase such Property
from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services,
other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of
business; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person;
(d) obligations of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other
financial institutions for the account of such Person;
(e) Capital Lease Obligations of such Person; (f) obligations of
such Person in respect of transactions which are treated as
financings under the Code; (g) Indebtedness of others Guaranteed
by such Person; and (h) all obligations under or in respect of
Hedging Agreements. The indebtedness of any Person shall also
include the Indebtedness of any other Person (including any
partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness
provide that such Person is not liable therefor.
"Indemnified Parties" means, collectively, the
Administrative Agent, the Co-Arrangers, the Arranger and each
Lender, and each of the foregoing parties' respective directors,
officers, employees, attorneys, agents, successors and assigns.
"Initial Borrowing Base Properties" means,
collectively, (a) the Initial Eligible Properties (excluding the
Initial Eligible Properties known as (i) First Colony 24 located
in Houston, Texas, (ii) Oak View 24 located in Omaha, Nebraska
and (iii) to the extent acquired after the Effective Date, the
Initial Eligible Property known as South Barrington 30 located in
Chicago, Illinois) and (b) the Optional Eligible Property known
as Gulf Pointe 30 located in Houston, Texas.
"Initial Eligible Properties" means, collectively, the
Real Estate Properties listed on Schedule IV.
"Interest Coverage Ratio" means, as at any date, the
ratio of (a) EBITDA for the fiscal quarter ending on or most
recently ended prior to such date to (b) Interest Expense for
such fiscal quarter.
"Interest Expense" means, for any period, the sum, for
the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), <PAGE> of the
following: (a) all interest in respect of Indebtedness
(including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations) accrued or
capitalized (excluding capitalized interest that is funded
through a real estate construction loan provided by a third party
financing source) during such period (whether or not actually
paid during such period) plus (b) the net amount payable (or
minus the net amount receivable) under Hedging Agreements during
such period (whether or not actually paid or received during such
period) minus (c) interest income.
"Interest Period" means, for any Eurodollar Loan, each
period commencing on the date such Eurodollar Loan is made or
Converted from a Loan of another Type or (in the event of a
Continuation) the last day of the next preceding Interest Period
for such Loan and (subject to the requirements of the proviso set
forth at the end of Section 2.01) ending on the numerically
corresponding day in the first, second, third or sixth or
(subject to availability) ninth or twelfth calendar month
thereafter, as the Borrower may select as provided in
Section 4.05, except that each Interest Period that commences on
the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise end after the Commitment Termination Date, such
Interest Period shall end on the Commitment Termination Date;
(ii) each Interest Period that would otherwise end on a day that
is not a Business Day shall end on the next succeeding Business
Day (or, in the case of an Interest Period for a Eurodollar Loan,
if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); and
(iii) notwithstanding clause (i) above, no Interest Period shall
have a duration of less than one month and, if the Interest
Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such
period.
"Investment" means, for any Person: (a) the
acquisition (whether for cash, Property, services or securities
or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of
any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by
the Person entering into such sale); (b) the making of any
deposit with, or advance, loan or other extension of credit to,
any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person), but excluding
any such advance, loan or extension of credit having a term not
exceeding 90 days arising in connection with the sale of
inventory or supplies by such Person in the ordinary course of
business; (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other
liability of any other Person and (without duplication) any
amount <PAGE> committed to be advanced, lent or extended to such Person;
or (d) the entering into of any Hedging Agreement.
"IPO" means the initial public offering of shares in
the Borrower pursuant to the Registration Statement.
"Issuing Lender" means The Bank of New York, as the
issuer of Letters of Credit under Section 2.03, together with its
successors and assigns in such capacity.
"Letter of Credit" has the meaning assigned to such
term in Section 2.03.
"Letter of Credit Documents" means, with respect to any
Letter of Credit, collectively, any application therefor and any
other agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter
of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of
such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" means, for each Lender,
such Lender's participation interest (or, in the case of the
Issuing Lender, the Issuing Lender's retained interest) in the
Issuing Lender's liability under Letters of Credit and such
Lender's rights and interests in Reimbursement Obligations and
fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" means, without
duplication, at any time and in respect of any Letter of Credit
issued, the sum of (a) the undrawn face amount of such Letter of
Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of
Credit. For purposes of this Agreement, a Lender (other than the
Issuing Lender) shall be deemed to hold a Letter of Credit
Liability in an amount equal to its participation interest in the
related Letter of Credit under Section 2.03, and the Issuing
Lender shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of
Credit after giving effect to the acquisition by the Lenders
other than the Issuing Lender of their participation interests
under Section 2.03.
"Lien" means, with respect to any Property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such Property. For purposes of this
Agreement and the other Loan Documents, a Person shall be deemed
to own subject to a Lien any <PAGE> Property that it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to
such Property.
"Loan Documents" means, collectively, this Agreement,
the Notes and the Letter of Credit Documents.
"Loans" has the meaning assigned to such term in
Section 2.01.
"Majority Lenders" means Lenders having at least 51% of
the aggregate amount of the Commitments or, if the Commitments
shall have terminated, Lenders holding at least 51% of the
aggregate unpaid principal amount of the Loans.
"Margin Stock" means "margin stock" within the meaning
of Regulations G, T, U and X.
"Material Adverse Effect" means a material adverse
effect on (a) the Property, business, operations, financial
condition, prospects, liabilities or capitalization of the
Borrower and its Subsidiaries taken as a whole, (b) the ability
of any Obligor to perform its obligations under any of the Loan
Documents, (c) the validity or enforceability of any of the Loan
Documents to which an Obligor is a party, (d) the rights and
remedies of the Lenders and the Administrative Agent under any of
the Loan Documents or (e) the timely payment (following the
expiration of any applicable grace period) of the principal of or
interest on the Loans or the Reimbursement Obligations or other
amounts payable in connection therewith.
"Moody's" means Moody's Investors Services, Inc., and
its successors.
"Mortgages" means senior mortgage (or deed of trust)
debt instruments in which the Borrower holds an interest and
which are secured by developed real estate.
"Multiemployer Plan" means a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have
been made by the Borrower or any ERISA Affiliate and that is
covered by Title IV of ERISA.
"Net Operating Income" means, for any Real Estate
Property, as of any date (a) the aggregate rental income and
other income from the operation of such Borrowing Base Property
for the most recently completed fiscal quarter, multiplied by
four minus (b) all expenses and other charges incurred in
connection with the operation of such Real Estate Property,
<PAGE>
including any Capital Improvement Reserve applicable to such Real
Estate Property for such quarter, multiplied by four; provided,
however, the Net Operating Income of any Real Estate Property
which is not wholly owned by the Borrower shall be included only
to the extent of the Borrower's ownership interest in the market
value of such Real Estate Property on a fully diluted basis in
such Real Estate Property. In the absence of historical
financial information for any Real Estate Property, pro forma
financial information (determined based upon the terms of the
applicable lease governing the lease of such Real Estate
Property) shall be used for the first quarter in the first year
of any applicable lease for such Real Estate Property.
"Non-Conforming Assets" means, collectively, all of the
Borrower's Properties other than Conforming Assets, including,
without limitation, Mortgages.
"Non-Conforming Assets Ratio" means, as at any date,
the ratio of (a) the portion of Total Asset Value relating to
Non-Conforming Assets to (b) Total Asset Value.
"Non-Recourse" means, with reference to any obligation
or liability, any obligations or liability for which the Borrower
or any of its Subsidiaries, as obligor thereunder, is not liable
or obligated other than as to the Borrower's, or any
Subsidiary's, interest in a designated Real Estate Property or
other specifically identified asset only, subject to such limited
exceptions to the non-recourse nature of such obligation or
liability, such as, but not limited to, fraud, misappropriation,
misapplication and environmental indemnities, as are usual and
customary in like transactions involving institutional lenders at
the time of the incurrence of such obligation or liability.
"Non-Recourse Secured Leverage Ratio" means, at any
date, the ratio of (a) the portion of Total Indebtedness which is
secured by a Lien and Non-Recourse to the Borrower or its
Subsidiaries to (b) the Total Asset Value at such time.
"Notes" means the promissory notes provided for in
Section 2.08(a) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
"Notice of Borrowing" means the notice to be given by
the Borrower to the Administrative Agent in respect of each
borrowing of Loans, substantially in the form of Exhibit O,
setting forth the Loans sought.
"Option Agreements" means those certain Option
Agreements dated as of November 21, 1997 between Borrower and the
AMCE Subsidiaries and/or CLIP, pursuant to <PAGE> which the Borrower has
options to acquire from AMC any or all of the Optional Eligible
Properties.
"Optional Eligible Properties" means, collectively, the
Real Estate Properties listed on Schedule VI.
"Partially-Owned Entity" means any Person in which the
Borrower or its Subsidiaries owns an equity interest, but which
is not required in accordance with GAAP to be consolidated with
the Borrower for financial reporting purposes.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Permitted Investments" means: short-term investment
grade instruments, interest-bearing bank accounts, certificates
of deposit, money market securities, United States of America
government securities or mortgage backed securities guaranteed by
the United States of America, or any agency thereof, and any
other Investments the income from which qualifies as "qualified
temporary investment income" under the Code and the regulations
thereunder.
"Permitted Liens" has the meaning assigned to such term
in Section 9.06.
"Permitted Use" shall mean (a) megaplex movie theaters
with predominantly stadium-style seating, (b) entertainment
themed retail centers incorporating, megaplex theaters,
restaurants, book and/or music superstores, interactive game
centers, live entertainment venues and/or other specialty retail
that is oriented to entertainment or leisure time activities, (c)
integrated movie-going, dining and retail shopping complexes,
and (d) any combination of the uses described in clauses (a), (b)
and (c).
"Person" means any individual, corporation, company,
voluntary association, partnership, limited liability company,
joint venture, trust, unincorporated organization or government
(or any agency, instrumentality or political subdivision
thereof).
"Plan" means an employee benefit or other plan
established or maintained by the Borrower or any ERISA Affiliate
and that is covered by Title IV of ERISA, other than a
Multiemployer Plan.
"Post-Default Rate" means a rate per annum equal to 2%
plus the Base Rate as in effect from time to time plus the
Applicable Margin for Base Rate Loans, provided that, with
<PAGE>
respect to principal of a Eurodollar Loan, the "Post-Default
Rate" shall be the greater of (i) 2% plus the interest rate for
such Loan as provided in Section 3.02 or (ii) the rate provided
for above in this definition.
"Prime Rate" means the rate of interest from time to
time announced by BNY at the Principal Office as its prime
commercial lending rate.
"Principal Office" means the principal office of BNY,
located on the date hereof at One Wall Street, New York, New York
10286.
"Property" means any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible.
"Prospectus" means the form of final prospectus
included in the Registration Statement at the time such
registration statement became effective.
"Qualified AMC Lease" means a duly executed and
delivered triple net lease (as the same may be amended, modified
and supplemented in accordance with the terms of this Agreement)
from an Obligor to AMC for an Eligible Property which meets the
following criteria:
(a) Such lease contains the terms and conditions recited in
Exhibit E, any material changes to such terms and
conditions requiring the prior approval of the Majority
Lenders;
(b) AMC's obligation under such lease for an Initial
Eligible Property or an Optional Eligible Property
shall be guaranteed by AMCE pursuant to an AMCE Lease
Guaranty; and
(c) Each lease for the Initial Eligible Properties and the
Option Eligible Properties shall be cross-defaulted to
each of the Qualified AMC Leases for the other Initial
Eligible Properties and the Optional Eligible
Properties; provided, however, such condition shall no
longer be required (i) at any time after AMCE's senior
debt obligations or corporate credit rating becomes
rated investment grade by S&P or Moody's or (ii) during
any period when AMC's rent payments under Qualified AMC
Leases represent, in the aggregate, less than 50% of
the Borrower's rental income in any fiscal quarter from
Borrowing Base Properties.
<PAGE>
"Qualified Ground Lease" means a ground lease (as the
same may be amended, modified and supplemented in accordance with
the terms of this Agreement) which meets the requirements set
forth on Schedule VI hereto, any material changes thereto to be
approved by the Majority Lenders.
"Qualified Lease" means a Qualified AMC Lease or a
Qualified Third Party Lease relating to a Borrowing Base
Property.
"Qualified Third Party Lease" means a duly executed and
delivered triple net lease (as the same may be amended, modified
and supplemented in accordance with the terms of this Agreement)
from an Obligor to a third party for an Eligible Property which
meets the following criteria:
(a) Such lease shall substantially contain the terms and
conditions recited in Exhibit E, any material changes
to such terms and conditions requiring the approval of
the Majority Lenders;
(b) The rent under such lease is based on a capitalization
rate of not less than the lesser of (i) 9.5% or (ii) a
rate equal to the Treasury Rate plus 3.5%, unless such
lessee's senior debt obligations or corporate credit
rating (or that of any guarantor of such lease) has an
investment grade credit rating from S&P or Moody's; and
(c) If the lessee's obligations under such lease are
guaranteed and the credit rating or net worth of such
guarantor is used by the Borrower to satisfy the
requirements of (i) clause (a) of the definition of
Borrowing Base Value, (ii) clause (b) of this
definition, (iii) clause (c) of the definition of Total
Market Value of Real Estate or (iv) Section 9.10(i),
such guaranty shall contain substantially the terms and
conditions recited in Exhibit F, any material changes
to such terms and conditions requiring the approval of
the Majority Lenders.
"Quarterly Dates" means the last Business Day of March,
June, September and December in each year, the first of which
shall be the first such day after the date hereof.
"Real Estate Properties" means the fixed and tangible
properties consisting of land, buildings and/or other
improvements owned or ground-leased by the Borrower, its
Subsidiaries or a Partially-Owned Entity at the relevant time of
reference thereto, including, without limitation, the Borrowing
Base Properties at such time of reference.
<PAGE>
"Real Estate Properties Under Construction" means any
Real Estate Properties for which the Borrower or its Subsidiaries
or any Partially-Owned Entity is actively pursuing construction
of one or more Buildings or other improvements and for which
construction is proceeding to completion without undue delay (any
delay due to a force majeure event excepted) in order to obtain a
certificate of occupancy (or equivalent governmental approval)
with respect thereto upon completion of such construction work.
"Recourse" means, with reference to any obligation or
liability, any liability or obligation that is not Non-Recourse
to the obligor thereunder, directly or indirectly. For purposes
hereof, a Person shall not be deemed to be "indirectly" liable
for the liabilities or obligations of an obligor solely by reason
of the fact that such Person has an ownership interest in such
obligor, provided that such Person is not otherwise legally
liable, directly or indirectly, for such obligor's liabilities or
obligations (e.g., by reason of a guaranty or contribution
obligations, by operation of law or by reason of such Person
being a general partner of such obligor).
"Registration Statement" means the registration
statement on Form S-11 (File No. 333-35281) with respect to the
Common Stock (as defined in such registration statement),
prepared by the Borrower in conformity with the requirements of
the 1933 Act and the SEC Rules and Regulations thereunder, at the
time such registration statement became effective and, in the
event any post-effective amendment thereto became effective,
shall also mean such registration statement as so amended;
provided, however, that such term shall also include all Rule
430A Information deemed to be included in such registration
statement at the time such registration statement became
effective as provided by Rule 430A of the SEC Rules and
Regulations.
"Regulations A, D, G, T, U and X" means, respectively,
Regulations A, D, G, T, U and X of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be
modified and supplemented and in effect from time to time.
"Regulatory Change" means, with respect to any Lender,
any change after the date hereof in Federal, state or foreign law
or regulations (including, without limitation, Regulation D) or
the adoption or making after such date of any interpretation,
directive or request applying to a class of banks including such
Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) by any
Governmental Authority or monetary authority charged with the
interpretation or administration thereof.
<PAGE>
"Reimbursement Obligations" means, at any time, the
obligations of the Borrower then outstanding, or that may
thereafter arise in respect of all Letters of Credit then
outstanding, to reimburse amounts paid by the Issuing Lender in
respect of any drawings under a Letter of Credit.
"REIT" means a "real estate investment trust", as such
term is defined in Section 856 of the Code.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration into the indoor or outdoor environment,
including, without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Remediation" shall mean, without limitation, any
response, remedial, removal, or corrective action, any activity
to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, any actions to cure or mitigate
any Release of any Hazardous Material, including investigation,
study, site monitoring, sampling and testing, laboratory or other
analysis, or evaluation necessary to such actions.
"Reserve Requirement" means, for any Interest Period
for any Eurodollar Loan, the average maximum rate at which
reserves (including, without limitation, any marginal,
supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of
the Federal Reserve System in New York City with deposits
exceeding one billion Dollars against "Eurocurrency liabilities"
(as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall include
any other reserves required to be maintained by such member banks
by reason of any Regulatory Change with respect to (i) any
category of liabilities that includes deposits by reference to
which the Eurodollar Base Rate for any Interest Period for any
Eurodollar Loans is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or
(ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"Restricted Payment" means dividends (in cash, Property
or obligations) on, or other payments or distributions on account
of, or the setting apart of money for a sinking or other
analogous fund for, or the purchase, redemption, retirement or
other acquisition of, any shares of any class of stock of the
Borrower or of any warrants, options or other rights to acquire
the same (or to make any payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with
reference to the fair market or equity value of the Borrower or
any of its Subsidiaries), but excluding dividends payable solely
in shares of common stock of the Borrower.
<PAGE>
"Right of First Refusal Agreement" means that certain
AMCE Right to Purchase Agreement dated as of November 21, 1997
among Borrower and AMCE, pursuant to which the Borrower has a
right of first refusal and first offer to acquire and lease to
AMC any megaplex theatre and related entertainment property
acquired or developed and owned (or ground leased) by AMCE or its
Subsidiaries for a period of five years following the IPO.
"Rule 430A Information" means information with respect
to the Common Stock (as defined in the Registration Statement)
and the offering thereof permitted to be omitted from the
Registration Statement when it became effective pursuant to Rule
430A of the SEC Rules and Regulations.
"SEC Rules and Regulations" means the rules and
regulations of the Commission.
"Structural Defect" means any material structural
defect to the improvements located on the applicable Real Estate
Property.
"S&P" means Standard & Poor's Ratings Group, a division
of McGraw-Hill, Inc., and its successors.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership, down REIT or
other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation,
limited liability company, partnership or other entity
(irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such
corporation, limited liability company, partnership or other
entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person. Unless otherwise specified,
"Subsidiary" means a subsidiary of the Borrower.
"Syndication Agents" means, collectively, The Bank of
Nova Scotia, New York Agency, and Goldman Sachs Mortgage Company
in such capacities.
"Tangible Net Worth" means, as at any date, the
tangible net worth of the Borrower and its Subsidiaries
(determined on a consolidated basis without duplication in
accordance with GAAP).
<PAGE>
"Total Asset Value" means, as at any date, the sum for
the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the
following:
(a) the aggregate amount of Cash or Cash Equivalents
(less restricted cash); plus
(b) the amount of the Total Market Value of Real
Estate; plus
(c) the aggregate amount of Development Costs incurred
and paid to date by the Borrower with respect to any
Real Estate Properties which are Real Estate
Properties under Construction on such date, subject,
however, to Section 9.10(j); plus
(d) the market value of Mortgages, subject, however,
to Section 9.10(h).
"Total Fixed Charges" means, for any period, the sum,
for the Borrower and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP),
of the following: (a) Debt Service for such period, (b) the
amount of any Capital Improvement Reserves during such period and
(c) any preferred dividends paid during such period.
"Total Indebtedness" means, as at any date, the sum,
for the Borrower and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP),
of the following: (a) all Indebtedness (including, without
limitation, the aggregate amount of Loans and Letter of Credit
Liabilities under this Agreement) and (b) all other liabilities
that should be classified as liabilities on a balance sheet,
including, without limitation, all reserves (other than general
contingency reserves) and all deferred taxes and other deferred
items, but excluding (i) dividends declared but not yet paid and
(ii) trade payables in the ordinary course of business so long as
such trade payables are payable within 90 days of the date the
respective goods are delivered or the respective services are
rendered.
"Total Leverage Ratio" means as of any date, at any
time, the ratio of (a) Total Indebtedness to (b) the Total Asset
Value at such time.
"Total Market Value of Real Estate" means, as of any
date, (a) EBITDA for the Borrower's most recently completed
fiscal quarter (less maintenance capital expenditures) multiplied
by (b) four and divided by (c) a capitalization rate of 10.75%;
provided, however, all real properties that are leased to lessees
whose consolidated net worth, or the consolidated net worth of
their respective guarantors, is less than $25,000,000 shall be
capitalized at a rate of <PAGE> 12.5%; and in the absence of historical
financial information, proforma financial information shall be
used for the first quarter in the first year of the applicable
lease.
"Treasury Rate" means the yield, calculated by linear
interpolation (rounded to three decimal places) of the yields of
United States Treasury Constant Maturities with terms (one longer
and one shorter) most nearly approximating that of United States
Treasury obligations having maturities as close as possible to 10
years from the date an Eligible Property subject to a Qualified
Third Party Lease is proposed by the Borrower as a Borrowing Base
Property, such yield to be determined by the Administrative Agent
on the basis of Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading U.S. Governmental
Security/Treasury Constant Maturities, or other recognized source
of financial market information selected by the Administrative
Agent.
"Type" has the meaning assigned to such term in
Section 1.03.
"Unencumbered Total Asset Value Ratio" means, at any
date, the ratio of (a) Total Asset Value of Real Estate
Properties not encumbered by a Lien (other than Permitted Liens)
to (b) the Total Indebtedness which is unsecured by a Lien.
"U.S. Person" means a citizen or resident of the United
States of America, a corporation, limited liability company,
partnership or other entity created or organized in or under any
laws of the United States of America or any State thereof, or any
estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"U.S. Taxes" means any present or future tax,
assessment or other charge or levy imposed by or on behalf of the
United States of America or any taxing authority thereof.
"Voting Stock" of any Person means outstanding
securities of all classes of such Person ordinarily (and apart
from rights accruing under special circumstances) having the
right to elect directors.
"Wholly Owned Subsidiary" means, with respect to any
Person, any corporation, partnership, limited liability company,
down REIT or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or
indirectly owned or controlled by such Person or one or more
Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
<PAGE>
1.02 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 the Borrower notifies the Administrative
Agent that the 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 the Administrative Agent
notifies the Borrower that the Majority Lenders request an
amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such change
in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until
such notice shall have been withdrawn or such provision amended
in accordance herewith.
(b) FFO. If the Borrower notifies the Administrative
Agent 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 the 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
the Administrative Agent notifies the Borrower that the Majority
Lenders request 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.
1.03 Types of Loans. Loans hereunder are
distinguished by "Type". The "Type" of a Loan refers to whether
such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type.
1.04 Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such
agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to <PAGE> any
restrictions on such amendments, supplements or modifications set
forth herein), (b) any reference herein to any Person shall be
construed to include such Person's successors and assigns,
(c) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and
contract rights.
Section 2. The Commitments, Loans, Notes and
Prepayments.
2.01 Loans. Each Lender severally agrees, on the
terms and conditions of this Agreement, including, without
limitation, those relating to the Borrowing Base, to make loans
(each advance of such a loan being a "Loan" and collectively,
"Loans") to the Borrower in Dollars during the period from and
including the Effective Date to but not including the Commitment
Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Commitment
of such Lender as in effect from time to time, provided that in
no event shall the aggregate principal amount of all Loans,
together with the aggregate amount of all Letter of Credit
Liabilities, exceed the aggregate amount of the Commitments as in
effect from time to time. Subject to the terms and conditions of
this Agreement, during such period the Borrower may borrow, repay
and reborrow the amount of the Commitments by means of Base Rate
Loans and Eurodollar Loans and may Convert Loans of one Type into
Loans of another Type (as provided in Section 2.09) or Continue
Loans of one Type as Loans of the same Type (as provided in
Section 2.09); provided that no more than five separate Interest
Periods in respect of Eurodollar Loans from each Lender may be
outstanding at any one time; and provided, further, that prior to
June 30, 1998, all Eurodollar Loans must have an Interest Period
of one month's duration and be coterminous with the Interest
Periods of all other Eurodollar Loans, and, to the extent that
prior to such date a Eurodollar Loan would not satisfy such
conditions, such Loan shall be made, or Continued as or Converted
into, a Base Rate Loan.
2.02 Borrowings. The Borrower shall give the
Administrative Agent a Notice of Borrowing of each borrowing
hereunder as provided in Section 4.05 hereof. Not later than
1:00 p.m., New York City time, on the date specified for each
borrowing hereunder, each Lender shall make available the amount
of the Loan or Loans to be made by it on such date to the
Administrative Agent as specified by the Administrative Agent, in
immediately available funds, for the account of the Borrower.
The amount so received by the Administrative Agent shall, subject
<PAGE>
to the terms and conditions of this Agreement, be made available
to the Borrower by depositing the same, in immediately available
funds, in an account of the Borrower designated by the Borrower
and maintained with BNY at the Principal Office.
2.03 Letters of Credit. Subject to the terms and
conditions of this Agreement, the Commitments may be utilized,
upon the request of the Borrower, in addition to the Loans
provided for by Section 2.01, by the issuance by the Issuing
Lender of standby letters of credit (collectively, "Letters of
Credit") for the account of the Borrower or any of its
Subsidiaries (as specified by the Borrower), provided that in no
event shall (i) the aggregate amount of all Letter of Credit
Liabilities, together with the aggregate principal amount of the
Loans, exceed the aggregate amount of the Commitments as in
effect from time to time, (ii) the outstanding aggregate amount
of all Letter of Credit Liabilities exceed $15,000,000 and
(iii) the expiration date of any Letter of Credit extend beyond
the earlier of the Commitment Termination Date and the date
twelve (12) months following the issuance of such Letter of
Credit. The following additional provisions shall apply to
Letters of Credit:
(a) Notice of Issuance. The Borrower shall give the
Administrative Agent at least three Business Days'
irrevocable prior notice (effective upon receipt) specifying
the Business Day (which shall be no later than 30 days
preceding the Commitment Termination Date) each Letter of
Credit is to be issued and the account party or parties
therefor and describing in reasonable detail the proposed
terms of such Letter of Credit (including the beneficiary
thereof) and the nature of the transactions or obligations
proposed to be supported thereby. Upon receipt of any such
notice, the Administrative Agent shall advise the Issuing
Lender of the contents thereof.
(b) Participation in Letters of Credit. On each day
during the period commencing with the issuance by the
Issuing Lender of any Letter of Credit and until such Letter
of Credit shall have expired or been terminated, the
Commitment of each Lender shall be deemed to be utilized for
all purposes of this Agreement in an amount equal to such
Lender's Commitment Percentage of the then undrawn face
amount of such Letter of Credit. Each Lender (other than
the Issuing Lender) agrees that, upon the issuance of any
Letter of Credit hereunder, it shall automatically acquire a
participation in the Issuing Lender's liability under such
Letter of Credit in an amount equal to such Lender's
Commitment Percentage of such liability, and each Lender
(other than the Issuing Lender) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor
and not as surety, and shall be unconditionally obligated to
the Issuing Lender to pay and discharge when due, its
Commitment Percentage of the Issuing Lender's liability
under such Letter of Credit.
<PAGE>
(c) Notice by Issuing Lender of Drawings. Upon
receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing
Lender shall promptly notify the Borrower (through the
Administrative Agent) of the amount to be paid by the
Issuing Lender as a result of such demand and the date on
which payment is to be made by the Issuing Lender to such
beneficiary in respect of such demand. Notwithstanding the
identity of the account party of any Letter of Credit, the
Borrower hereby unconditionally agrees to pay and reimburse
the Administrative Agent for the account of the Issuing
Lender for the amount of each demand for payment under such
Letter of Credit that is in substantial compliance with the
provisions of such Letter of Credit at or prior to the date
on which payment is to be made by the Issuing Lender to the
beneficiary thereunder, without presentment, demand, protest
or other formalities of any kind.
(d) Notice by the Borrower of Borrowing for
Reimbursement. Forthwith upon its receipt of a notice
referred to in paragraph (c) of this Section 2.03, the
Borrower shall advise the Administrative Agent whether or
not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Issuing Lender for the amount of
the related demand for payment and, if it does, submit a
notice of such borrowing as provided in Section 4.05.
(e) Payments by Lenders to Issuing Lender. Each
Lender (other than the Issuing Lender) shall pay to the
Administrative Agent for the account of the Issuing Lender
at the Principal Office in Dollars and in immediately
available funds, the amount of such Lender's Commitment
Percentage of any payment under a Letter of Credit upon
notice by the Issuing Lender (through the Administrative
Agent) to such Lender requesting such payment and specifying
such amount. Each such Lender's obligation to make such
payment to the Administrative Agent for the account of the
Issuing Lender under this paragraph (e), and the Issuing
Lender's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, the failure of
any other Lender to make its payment under this paragraph
(e), the financial condition of the Borrower (or any other
account party), the existence of any Default or the
termination of the Commitments. Each such payment to the
Issuing Lender shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Lender shall
default in its obligation to make any such payment to the
Administrative Agent for the account of the Issuing Lender,
for so long as such default shall continue the
Administrative Agent may at the request of the Issuing
Lender withhold from any payments received by the
Administrative Agent under this Agreement or any <PAGE> Note for
the account of such Lender the amount so in default and, to
the extent so withheld, pay the same to the Issuing Lender
in satisfaction of such defaulted obligation.
(f) Participations in Reimbursement Obligations. Upon
the making of each payment by a Lender to the Issuing Lender
pursuant to paragraph (e) of this Section 2.03 in respect of
any Letter of Credit, such Lender shall, automatically and
without any further action on the part of the Administrative
Agent, the Issuing Lender or such Lender, acquire (i) a
participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Lender by the
Borrower hereunder and under the Letter of Credit Documents
relating to such Letter of Credit and (ii) a participation
in a percentage equal to such Lender's Commitment Percentage
in any interest or other amounts payable by the Borrower
hereunder and under such Letter of Credit Documents in
respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the
Issuing Lender pursuant to paragraph (g) of this
Section 2.03). Upon receipt by the Issuing Lender from or
for the account of the Borrower of any payment in respect of
any Reimbursement Obligation or any such interest or other
amount (including by way of setoff or application of
proceeds of any collateral security) the Issuing Lender
shall promptly pay to the Administrative Agent for the
account of each Lender entitled thereto, such Lender's
Commitment Percentage of such payment, each such payment by
the Issuing Lender to be made in the same money and funds in
which received by the Issuing Lender. In the event any
payment received by the Issuing Lender and so paid to the
Lenders hereunder is rescinded or must otherwise be returned
by the Issuing Lender, each Lender shall, upon the request
of the Issuing Lender (through the Administrative Agent),
repay to the Issuing Lender (through the Administrative
Agent) the amount of such payment paid to such Lender, with
interest at the rate specified in paragraph (j) of this
Section 2.03.
(g) Letter of Credit Fees. The Borrower shall pay to
the Administrative Agent for the account of each Lender
(ratably in accordance with their respective Commitment
Percentages) a letter of credit fee in respect of each
Letter of Credit which shall accrue at a rate per annum
equal to the Applicable Margin applicable to interest on
Eurodollar Loans on the daily average undrawn face amount of
such Letter of Credit issued for the period from and
including the date of issuance of such Letter of Credit
(i) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit that is
drawn in full or is otherwise terminated other than on the
stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or
is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Commitment
Termination Date and to <PAGE> be calculated for any day after
giving effect to any payments made under such Letter of
Credit on such day). In addition, the Borrower shall pay to
the Administrative Agent for the account of the Issuing
Lender a fronting fee in respect of each Letter of Credit in
an amount equal to 0.125% per annum of the daily average
undrawn face amount of such Letter of Credit for the period
from and including the date of issuance of such Letter of
Credit (x) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration
date and (y) in the case of a Letter of Credit that is drawn
in full or is otherwise terminated other than on the stated
expiration date of such Letter of Credit, to but excluding
the date such Letter of Credit is drawn in full or is
terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Commitment
Termination Date and to be calculated for any day after
giving effect to any payments made under such Letter of
Credit on such day) plus all commissions, charges, costs and
expenses in the amounts customarily charged by the Issuing
Lender from time to time in like circumstances with respect
to the issuance of each Letter of Credit and drawings and
other transactions relating thereto.
(h) Information Provided by Issuing Lender to Lenders.
Promptly following the end of each calendar month, the
Issuing Lender shall deliver (through the Administrative
Agent) to each Lender and the Borrower a notice describing
the aggregate amount of all Letters of Credit outstanding at
the end of such month. Upon the request of any Lender from
time to time, the Issuing Lender shall deliver any other
information reasonably requested by such Lender with respect
to each Letter of Credit then outstanding.
(i) Conditions Precedent to Issuance. The issuance by
the Issuing Lender of each Letter of Credit shall, in
addition to the conditions precedent set forth in Section 7,
be subject to the conditions precedent that (i) such Letter
of Credit shall be in such form, contain such terms and
support such transactions as shall be satisfactory to the
Issuing Lender consistent with its then current practices
and procedures with respect to letters of credit of the same
type and (ii) the Borrower shall have executed and delivered
such applications, agreements and other instruments relating
to such Letter of Credit as the Issuing Lender shall have
reasonably requested consistent with this Agreement and its
then current practices and procedures with respect to
letters of credit of the same type, provided that in the
event of any conflict between any such application,
agreement or other instrument and the provisions of this
Agreement, the provisions of this Agreement shall control.
(j) Interest Payable to Issuing Lender by Lenders. To
the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this
<PAGE>
Section 2.03 on the due date therefor, such Lender shall pay
interest to the Issuing Lender (through the Administrative
Agent) on such amount from and including such due date to
but excluding the date such payment is made at a rate per
annum equal to the Federal Funds Rate, provided that if such
Lender shall fail to make such payment to the Issuing Lender
within three Business Days of such due date, then,
retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Post-Default
Rate.
(k) Modifications and Supplements. The issuance by
the Issuing Lender of any modification or supplement to any
Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the
issuance of new Letters of Credit, and no such modification
or supplement shall be issued hereunder unless the
respective Letter of Credit affected thereby would have
complied with such conditions had it originally been issued
hereunder in such modified or supplemented form.
(l) Replacement of Issuing Lender. The Issuing Lender
may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing
Lender and the successor Issuing Lender. The Administrative
Agent shall notify the Lenders of any such replacement of
the Issuing Lender. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Lender
pursuant to Section 2.03(g). From and after the effective
date of any such replacement, (i) the successor Issuing
Lender shall have all the rights and obligations of the
replaced Issuing Lender under this Agreement with respect to
Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Lender" shall be
deemed to refer to such successor or to any previous Issuing
Lender, or to such successor and all previous Issuing
Lenders, as the context shall require. After the
replacement of an Issuing Lender hereunder, the replaced
Issuing Lender shall remain a party hereto and shall
continue to have all the rights and obligations of an
Issuing Lender under this Agreement with respect to Letters
of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
The Borrower hereby indemnifies and holds harmless each Lender
and the Administrative Agent from and against any and all claims
and damages, losses, liabilities, costs or expenses that such
Lender or the Administrative Agent may incur (or that may be
claimed against such Lender or the Administrative Agent by any
Person whatsoever) by reason of or in connection with the
execution and delivery or transfer of or payment or refusal to
pay by the Issuing Lender under any Letter of Credit; provided
that the Borrower shall not be required to indemnify any Lender
or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence
of the Issuing <PAGE> Lender in determining whether a request presented
under any Letter of Credit complied with the terms of such Letter
of Credit or (y) in the case of the Issuing Lender, such Lender's
failure to pay under any Letter of Credit after the presentation
to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this
Section 2.03 is intended to limit the other obligations of the
Borrower, any Lender or the Administrative Agent under this
Agreement.
2.04 Changes of the Commitments.
(a) Automatic Reduction of Commitments. The aggregate
amount of the Commitments shall be automatically reduced to zero
on the Commitment Termination Date.
(b) Voluntary Reduction of Commitments. The Borrower
shall have the right at any time or from time to time (i) so long
as no Loans or Letter of Credit Liabilities are outstanding, to
terminate the Commitments, and (ii) to reduce the aggregate
unutilized amount of the Commitments (for which purpose
utilization of the Commitments shall be deemed to include the
aggregate amount of Letter of Credit Liabilities); provided that
(x) the Borrower shall give notice of each such termination or
reduction as provided in Section 4.05 and (y) each partial
reduction shall be in an aggregate amount equal to $5,000,000 or
a larger multiple of $1,000,000.
(c) No Reinstatement of Commitments. The Commitments
once terminated or reduced may not be reinstated.
2.05 Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of each Lender a commitment
fee on the daily average unutilized amount of such Lender's
Commitment (for which purpose the aggregate amount of any Letter
of Credit Liabilities shall be deemed to be a pro rata (based on
the Commitments) utilization of each Lender's Commitment), for
the period from and including the date hereof to but not
including the earlier of the date such Commitment is terminated
and the Commitment Termination Date, at a rate per annum equal to
the commitment fee rates set forth in the definition of
Applicable Margin. Accrued commitment fees shall be payable on
each Quarterly Date and on the earlier of the date the
Commitments are terminated (to the extent terminated in the case
of a partial termination) and the Commitment Termination Date.
2.06 Lending Offices. The Loans of each Type made by
each Lender shall be made and maintained at such Lender's
Applicable Lending Office for Loans of such Type.
2.07 Several Obligations; Remedies Independent. The
failure of any Lender to make any Loan to be made by it on the
date specified therefor shall not relieve any other Lender <PAGE> of its
obligation to make its Loan on such date, but neither any Lender
nor the Administrative Agent shall be responsible for the failure
of any other Lender to make a Loan to be made by such other
Lender, and (except as otherwise provided in Section 4.06) no
Lender shall have any obligation to the Administrative Agent or
any other Lender for the failure by such Lender to make any Loan
required to be made by such Lender. The amounts payable by the
Borrower at any time hereunder and under the Notes to each Lender
shall be a separate and independent debt and each Lender shall be
entitled to protect and enforce its rights arising out of this
Agreement and the Notes, and it shall not be necessary for any
other Lender or the Administrative Agent to consent to, or be
joined as an additional party in, any proceedings for such
purposes.
2.08 Notes.
(a) Notes. The Loans made by each Lender shall be
evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit A, dated the date hereof,
payable to such Lender in a principal amount equal to the amount
of its Commitment as originally in effect and otherwise duly
completed.
(b) Endorsement of Notes. The date, amount, Type,
interest rate and duration of Interest Period (if applicable) of
each Loan made by each Lender to the Borrower, and each payment
made on account of the principal thereof, shall be recorded by
such Lender on its books and, prior to any transfer of any Note
held by it, endorsed by such Lender on the schedule attached to
such Note or any continuation thereof; provided that the failure
of such Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when
due of any amount owing hereunder or under such Note in respect
of such Loans.
(c) Substitution, Exchange and Subdivision of Notes.
No Lender shall be entitled to have its Note substituted or
exchanged for any reason, or subdivided for promissory notes of
lesser denominations, except in connection with a permitted
assignment of all or any portion of such Lender's Commitment,
Loans and Note pursuant to Section 12.06 (and, if requested by
any Lender, the Borrower agrees to so exchange any Note, any such
exchanged note to be dated as of the date of such exchange).
2.09 Optional Prepayments and Conversions or
Continuations of Loans. Subject to Section 4.04, the Borrower
shall have the right to prepay Loans, or to Convert Loans of one
Type into Loans of another Type or Continue Loans of one Type as
Loans of the same Type, at any time or from time to time,
provided that: (a) the Borrower shall give the Administrative
Agent notice of each such prepayment, Conversion or Continuation
as provided in Section 4.05 <PAGE> (and, upon the date specified in any
such notice of prepayment, the amount to be prepaid shall become
due and payable hereunder); (b) Eurodollar Loans may be prepaid
or Converted only on the last day of an Interest Period for such
Loans unless the Borrower complies with the provisions of Section
5.05; and (c) any Conversion into or Continuation of Eurodollar
Loans shall be subject to the proviso set forth at the end of
Section 2.01. There shall be no prepayment penalty for Base Rate
Loans, and no prepayment penalty for Eurodollar Loans except as
provided in Sections 2.09(b) and 5.05. Notwithstanding the
foregoing, and without limiting the rights and remedies of the
Lenders under Section 10, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent
may (and at the request of the Majority Lenders shall) suspend
the right of the Borrower to Convert any Loan into a Eurodollar
Loan, or to Continue any Loan as a Eurodollar Loan, in which
event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) into, or Continued as, as
the case may be, Base Rate Loans.
2.10 Mandatory Prepayments.
(a) Borrowing Base. The Borrower shall from time to
time prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (b) of this Section 2.10)
in such amounts as shall be necessary so that at all times the
aggregate outstanding amount of the Loans together with the
outstanding Letter of Credit Liabilities shall not exceed 50% of
the Borrowing Base Value, such amount to be applied, first, to
Loans outstanding and, second, as cover for Letter of Credit
Liabilities outstanding.
(b) Cover for Letter of Credit Liabilities. In the
event that the Borrower shall be required pursuant to this
Section 2.10, to provide cover for Letter of Credit Liabilities
after prepayment of Loans in accordance with Section 2.10(a), the
Borrower shall effect the same by paying to the Administrative
Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the
Administrative Agent (as collateral security for the Letter of
Credit Liabilities) until the earlier of (a) the aggregate amount
of Loans and Letter of Credit Liabilities do not exceed 50% of
Borrowing Base Value; or (b) such time as the Letters of Credit
shall have been terminated and all of the Letter of Credit
Liabilities paid in full, and the Borrower hereby grants to the
Administrative Agent for the benefit of the Lenders a security
interest in any funds so paid.
Section 3. Payments of Principal and Interest.
<PAGE>
3.01 Repayment of Loans. The Borrower hereby promises
to pay to the Administrative Agent for the account of each Lender
the entire outstanding principal amount of such Lender's Loans,
and each Loan shall mature, on the Commitment Termination Date.
3.02 Interest. The Borrower hereby promises to pay to
the Administrative Agent for the account of each Lender interest
on the unpaid principal amount of each Loan made by such Lender
for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the
following rates per annum:
(a) during such periods as such Loan is a Base Rate
Loan, the Base Rate (as in effect from time to time) plus
the Applicable Margin; and
(b) during each Interest Period for such Loan during
which such Loan is a Eurodollar Loan, the Eurodollar Rate
for such Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, the Borrower hereby promises to
pay to the Administrative Agent for the account of each Lender
interest at the applicable Post-Default Rate
(x) on any principal of any Loan made by such Lender,
on any Reimbursement Obligation held by such Lender and on
any other amount payable by the Borrower hereunder or under
the Note held by such Lender to or for the account of such
Lender, that shall not be paid in full when due (whether at
stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date
thereof to but excluding the date the same is paid in full
and
(y) during any period when any Event of Default shall
have occurred and for so long as such Event of Default shall
be continuing.
Accrued interest on each Loan shall be payable (i) in the case of
a Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the
case of a Eurodollar Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such
Interest Period, and (iii) in the case of any Loan, upon the
payment or prepayment thereof or the Conversion of such Loan to a
Loan of another Type (but only on the principal amount so paid,
prepaid or Converted), except that if interest becomes payable at
the Post-Default Rate, such interest shall be payable from time
to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Lenders to
which such interest is payable and to the Borrower.
<PAGE>
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.
4.01 Payments.
(a) Payments by the Borrower. Except to the extent
otherwise provided herein, all payments of principal, interest,
Reimbursement Obligations and other amounts to be made by the
Borrower under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the
Obligors under any Loan Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or
counterclaim, to the Administrative Agent at an account
maintained by the Administrative Agent with BNY at the Principal
Office, not later than 1:00 p.m., New York City time, on the date
on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made
on the next succeeding Business Day).
(b) Lenders May Set Off. Any Lender for whose account
any such payment is to be made may (but shall not be obligated
to) debit the amount of any such payment that is not made by such
time to any ordinary deposit account of the Borrower with such
Lender (with notice to the Borrower and the Administrative
Agent), provided that such Lender's failure to give such notice
shall not affect the validity thereof.
(c) Application of Payments. The Borrower shall, at
the time of making each payment under this Agreement or any Note
for the account of any Lender, specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by
the Borrower hereunder to which such payment is to be applied
(and in the event that the Borrower fails to so specify, or if an
Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders,
subject to Section 4.02, may determine to be appropriate).
(d) Payments Received by the Administrative Agent.
Except to the extent otherwise provided in the last sentence of
Section 2.03(e), each payment received by the Administrative
Agent under this Agreement or any Note for the account of any
Lender shall be paid by the Administrative Agent promptly to such
Lender, in immediately available funds, for the account of such
Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
<PAGE>
(e) Extension to Next Business Day. If the due date
of any payment under this Agreement or any Note would otherwise
fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall
be payable for any principal so extended for the period of such
extension.
4.02 Pro Rata Treatment. Except to the extent
otherwise provided herein: (a) each borrowing from the Lenders
under Section 2.01 shall be made from the Lenders, each payment
of commitment fee under Section 2.05 shall be made for the
account of the Lenders, and each termination or reduction of the
amount of the Commitments under Section 2.04 shall be applied to
the respective Commitments of the Lenders, pro rata according to
the amounts of their respective Commitments; (b) except as
otherwise provided in Section 5.04, Eurodollar Loans having the
same Interest Period shall be allocated pro rata among the
Lenders according to the amounts of their respective Commitments
(in the case of the making of Loans) or their respective Loans;
(c) each payment or prepayment of principal of Loans by the
Borrower shall be made for the account of the Lenders pro rata in
accordance with the respective unpaid principal amounts of the
Loans held by them; and (d) each payment of interest on Loans by
the Borrower shall be made for the account of the Lenders pro
rata in accordance with the amounts of interest on such Loans
then due and payable to the respective Lenders.
4.03 Computations. Interest on Loans, Reimbursement
Obligations, commitment fees and letter of credit fees shall be
computed on the basis of a year of 360 days and actual days
elapsed (including the first day but, except as otherwise
provided in Section 2.03(g), excluding the last day) occurring in
the period for which payable.
4.04 Minimum Amounts. Except for mandatory
prepayments made pursuant to Section 2.10 and Conversions or
prepayments made pursuant to Section 5.04, each borrowing,
Conversion and partial prepayment of principal of Loans shall be
in an aggregate amount equal to (a) $1,000,000 or a larger
multiple of $500,000 for Base Rate Loans and (b) $5,000,000 or a
larger multiple of $1,000,000 for Eurodollar Loans (borrowings,
Conversions or prepayments of or into Loans of different Types
or, in the case of Eurodollar Loans, having different Interest
Periods at the same time hereunder to be deemed separate
borrowings, Conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period). The foregoing
multiples shall not apply to any prepayment of 100% of the
outstanding Loans.
4.05 Certain Notices. Notices by the Borrower to the
Administrative Agent of terminations or reductions of the
Commitments, of borrowings, Conversions, Continuations and
optional prepayments of Loans, of Types of Loans and of the
duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later
than <PAGE> 11:00 a.m., New York City time, on the number of Business
Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first
day of such Interest Period specified below:
Number of
Business
Notice Days Prior
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the
amount of the Commitments to be terminated or reduced. Each such
Notice of Borrowing, Conversion, Continuation or optional
prepayment shall specify, as applicable, the Loans to be
borrowed, Converted, Continued or prepaid and the amount (subject
to Section 4.04) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business
Day). Notices for Conversions and Continuations shall be in the
form of Exhibit P. Each such notice of the duration of an
Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the
event that the Borrower fails to select the Type of Loan, or the
duration of any Interest Period for any Eurodollar Loan within
the time period and otherwise as provided in this Section 4.05,
such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of
the then current Interest Period for such Loan or (if outstanding
as a Base Rate Loan) will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a
Lender or the Borrower (the "Payor") prior to the date on which
the Payor is to make payment to the Administrative Agent of (in
the case of a <PAGE> Lender) the proceeds of a Loan to be made by such
Lender hereunder or (in the case of the Borrower) a payment to
the Administrative Agent for the account of one or more of the
Lenders hereunder (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date; and,
if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on
demand, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date (the "Advance Date")
such amount was so made available by the Administrative Agent to
but excluding the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for
such day and, if such recipient(s) shall fail promptly to make
such payment, the Administrative Agent shall be entitled to
recover such amount, on demand, from the Payor, together with
interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance
Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the
Required Payment as follows:
(i) if the Required Payment shall represent a payment
to be made by the Borrower to the Lenders, the Borrower and
the recipient(s) shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required
Payment at the Post-Default Rate (without duplication of the
obligation of the Borrower under Section 3.02 to pay
interest on the Required Payment at the Post-Default Rate),
it being understood that the return by the recipient(s) of
the Required Payment to the Administrative Agent shall not
limit such obligation of the Borrower under Section 3.02 to
pay interest at the Post-Default Rate in respect of the
Required Payment, and
(ii) if the Required Payment shall represent proceeds
of a Loan to be made by the Lenders to the Borrower, the
Payor and the Borrower shall each be obligated retroactively
to the Advance Date to pay interest in respect of the
Required Payment pursuant to whichever of the rates
specified in Section 3.02 is applicable to the Type of such
Loan, it being understood that the return by the Borrower of
the Required Payment to the Administrative Agent shall not
limit any claim the Borrower may have against the Payor in
respect of such Required Payment.
<PAGE>
4.07 Sharing of Payments, Etc.
(a) Right of Set-off. Each Obligor agrees that, in
addition to (and without limitation of) any right of set-off,
banker's lien or counterclaim a Lender may otherwise have, each
Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or
special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of such
Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such
Lender's Loans, Reimbursement Obligations or any other amount
payable to such Lender hereunder, that is not paid by the due
date and the expiration of any applicable cure period (regardless
of whether such deposit or other indebtedness is then due to such
Obligor), in which case it shall promptly notify such Obligor and
the Administrative Agent thereof, provided that such Lender's
failure to give such notice shall not affect the validity
thereof.
(b) Sharing. If any Lender shall obtain from any
Obligor payment of any principal of or interest on any Loan or
Letter of Credit Liability owing to it or payment of any other
amount under this Agreement or any other Loan Document through
the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of
such payment, such Lender shall have received a greater
percentage of the principal of or interest on the Loans or Letter
of Credit Liabilities or such other amounts then due hereunder or
thereunder by such Obligor to such Lender than the percentage
received by any other Lender, it shall promptly purchase from
such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans or
Letter of Credit Liabilities or such other amounts, respectively,
owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such excess payment (net of
any expenses that may be incurred by such Lender in obtaining or
preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or Letter of
Credit Liabilities or such other amounts, respectively, owing to
each of the Lenders. To such end all the Lenders shall make
appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or
must otherwise be restored.
(c) Consent by the Borrower. The Borrower agrees that
any Lender so purchasing such a participation (or direct
interest) may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation
as fully as if such Lender were a direct holder of Loans or other
amounts (as the case may be) owing to such Lender in the amount
of such participation.
<PAGE>
(d) Rights of Lenders; Bankruptcy. Nothing contained
herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any
applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a set-off to which
this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders entitled
under this Section 4.07 to share in the benefits of any recovery
on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) Costs of Making or Maintaining Eurodollar Loans.
The Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to
compensate such Lender for any costs that such Lender determines
are attributable to its making or maintaining of any Eurodollar
Loans or its obligation to make any Eurodollar Loans hereunder,
or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation
(such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any
Regulatory Change that:
(i) shall subject any Lender (or its Applicable
Lending Office for any of such Loans) to any tax, duty or
other charge in respect of such Loans or its Note or changes
the basis of taxation of any amounts payable to such Lender
under this Agreement or its Note in respect of any of such
Loans (excluding changes in the rate of tax on the overall
net income of such Lender or of such Applicable Lending
Office by the jurisdiction in which such Lender has its
principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit
or similar requirements (other than the Reserve Requirement
used in the determination of the Eurodollar Rate for any
Interest Period for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation,
any of such Loans or any deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01), or
any commitment of such Lender (including, without
limitation, the Commitment of such Lender hereunder); or
<PAGE>
(iii) imposes any other condition affecting this
Agreement or its Note (or any of such extensions of credit
or liabilities) or its Commitment.
If any Lender requests compensation from the Borrower under this
paragraph (a), the Borrower may, by notice to such Lender (with a
copy to the Administrative Agent), suspend the obligation of such
Lender thereafter to make or Continue Eurodollar Loans, or to
Convert Loans of any other Type into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 shall be
applicable), provided that such suspension shall not affect the
right of such Lender to receive the compensation so requested.
(b) Costs Attributable to Regulatory Change or Risk-
Based Capital Guidelines. Without limiting the effect of the
foregoing provisions of this Section 5.01 (but without
duplication), the Borrower shall pay directly to each Lender from
time to time on request such amounts as such Lender may determine
to be necessary to compensate such Lender (or, without
duplication, the bank holding company of which such Lender is a
subsidiary) for any costs that it determines are attributable to
the maintenance by such Lender (or any Applicable Lending Office
or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not
having the force of law and whether or not failure to comply
therewith would be unlawful) of any court or Governmental
Authority or monetary authority (i) following any Regulatory
Change or (ii) implementing any risk-based capital guideline or
other requirement of capital (whether or not having the force of
law and whether or not the failure to comply therewith would be
unlawful) hereafter issued by any Governmental Authority or
supervisory authority, including the implementing at the national
level of the Basle Accord, in respect of its Commitment or Loans
(such compensation to include, without limitation, an amount
equal to any reduction of the rate of return on assets or equity
of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below that which such Lender (or any
Applicable Lending Office or such bank holding company) could
have achieved but for such law, regulation, interpretation,
directive or request.
(c) Notification and Certification. Each Lender shall
notify the Borrower of any event occurring after the date hereof
entitling such Lender to compensation under paragraph (a) or (b)
of this Section 5.01 as promptly as practicable, but in any event
within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such
notice within 45 days after it obtains actual knowledge of such
an event, such Lender shall, with respect to compensation payable
pursuant to this Section 5.01 in respect of any costs resulting
from such event, only be entitled to payment under this
Section 5.01 for costs incurred from and after the date 45 days
prior to the date that such Lender does give such notice and
(ii) each Lender will <PAGE> designate a different Applicable Lending
Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such
Lender shall have no obligation to designate an Applicable
Lending Office located in the United States of America. Each
Lender will furnish to the Borrower a certificate setting forth
the basis and amount of each request by such Lender for
compensation under paragraph (a) or (b) of this Section 5.01.
Determinations and allocations by any Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to
paragraph (a) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (b) of this Section 5.01, on its
costs or rate of return of maintaining Loans or its obligation to
make Loans, or on amounts receivable by it in respect of Loans,
and of the amounts required to compensate such Lender under this
Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if, on or prior to the
determination of the Eurodollar Base Rate for any Interest Period
for any Eurodollar Loan;
(a) the Administrative Agent determines, which
determination shall be conclusive, that quotations of
interest rates for the relevant deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01 are not
being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(b) the Majority Lenders determine, which
determination shall be conclusive, and notify the
Administrative Agent that the relevant rates of interest
referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 upon the basis of which the rate of interest
for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to
such Lenders of making or maintaining Eurodollar Loans for
such Interest Period;
then the Administrative Agent shall give the Borrower and each
Lender prompt notice thereof and, so long as such condition
remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans, to Continue Eurodollar Loans or
to Convert Loans of any other Type into Eurodollar Loans, and the
Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay
such Loans or Convert such Loans into another Type of Loan in
accordance with Section 2.09.
<PAGE>
5.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to honor its obligation
to make or maintain Eurodollar Loans hereunder (and, in the sole
opinion of such Lender, the designation of a different Applicable
Lending Office would either not avoid such unlawfulness or would
be disadvantageous to such Lender), then such Lender shall
promptly notify the Borrower thereof (with a copy to the
Administrative Agent) and such Lender's obligation to make or
Continue, or to Convert Loans of any other Type into, Eurodollar
Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions
of Section 5.04 shall be applicable).
5.04 Treatment of Affected Loans. If the obligation
of any Lender to make Eurodollar Loans or to Continue, or to
Convert Base Rate Loans into, Eurodollar Loans shall be suspended
pursuant to Section 5.01 or 5.03, such Lender's Eurodollar Loans
shall be automatically Converted into Base Rate Loans on the last
day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion resulting from a
circumstance described in Section 5.03, on such earlier date as
such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in
Section 5.01 or 5.03 that gave rise to such Conversion no longer
exist:
(a) to the extent that such Lender's Eurodollar Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Eurodollar Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans that would otherwise be made or
Continued by such Lender as Eurodollar Loans shall be made
or Continued instead as Base Rate Loans, and all Loans of
such Lender that would otherwise be Converted into
Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower with a copy to the
Administrative Agent that the circumstances specified in
Section 5.01 or 5.03 that gave rise to the Conversion of such
Lender's Eurodollar Loans pursuant to this Section 5.04 no longer
exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans
made by other Lenders are outstanding, such Lender's Base Rate
Loans shall be automatically Converted, on the first day(s) of
the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Base Rate Loans and Eurodollar Loans are
allocated among the Lenders ratably (as to principal amounts,
Types and Interest Periods) in accordance with their respective
Commitments.
<PAGE>
5.05 Compensation. The Borrower shall pay to the
Administrative Agent for the account of each Lender, upon the
request of such Lender through the Administrative Agent, such
amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any
reason (including, without limitation, the acceleration of
the Loans pursuant to Section 10) on a date other than the
last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any of the
conditions precedent specified in Section 7 to be satisfied)
to borrow a Eurodollar Loan from such Lender on the date for
such borrowing specified in the relevant notice of borrowing
given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include an amount equal to the excess, if any,
of (i) the amount of interest that otherwise would have accrued
on the principal amount so paid, prepaid, Converted or not
borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of
the then current Interest Period for such Loan (or, in the case
of a failure to borrow, the Interest Period for such Loan that
would have commenced on the date specified for such borrowing) at
the applicable rate of interest for such Loan provided for herein
over (ii) the amount of interest that otherwise would have
accrued on such principal amount at a rate per annum equal to the
interest component of the amount such Lender would have bid in
the London interbank market for Dollar deposits of leading banks
in amounts comparable to such principal amount and with
maturities comparable to such period (as reasonably determined by
such Lender), or if such Lender shall cease to make such bids,
the equivalent rate, as reasonably determined by such Lender,
derived from Page 3750 of the Dow Jones Markets Service or other
publicly available source as described in the definition of
"Eurodollar Base Rate" in Section 1.01. A certificate of any
Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error.
5.06 Additional Costs in Respect of Letters of Credit.
Without limiting the obligations of the Borrower under
Section 5.01 (but without duplication), if as a result of any
Regulatory Change or any risk-based capital guideline or other
requirement heretofore or hereafter issued by any Governmental
Authority or supervisory authority, including the implementation
at the national level of the Basle Accord, there shall be
imposed, modified or deemed applicable any tax, reserve, special
deposit, capital adequacy or similar requirement <PAGE> against or with
respect to or measured by reference to Letters of Credit issued
or to be issued hereunder and the result shall be to increase the
cost to any Lender or Lenders of issuing (or purchasing
participations in) or maintaining its obligation hereunder to
issue (or purchase participations in) any Letter of Credit
hereunder or reduce any amount receivable by any Lender hereunder
in respect of any Letter of Credit (which increases in cost, or
reductions in amount receivable, shall be the result of such
Lender's or Lenders' reasonable allocation of the aggregate of
such increases or reductions resulting from such event), then,
upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrower shall pay immediately to the Administrative
Agent for the account of such Lender or Lenders, from time to
time as specified by such Lender or Lenders (through the
Administrative Agent), such additional amounts as shall be
sufficient to compensate such Lender or Lenders (through the
Administrative Agent) for such increased costs or reductions in
amount. A statement as to such increased costs or reductions in
amount incurred by any such Lender or Lenders, submitted by such
Lender or Lenders to the Borrower shall be conclusive in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
(a) Gross-up for Deduction or Withholding of U.S.
Taxes. The Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order
that the net payment of any amount due to such non-U.S. Person
hereunder after deduction for or withholding in respect of any
U.S. Taxes imposed with respect to such payment (or in lieu
thereof, payment of such U.S. Taxes by such non-U.S. Person),
will equal the amount stated herein to be then due and payable,
provided that the foregoing obligation to pay such additional
amounts shall not apply:
(i) to any payment otherwise due to any Lender
hereunder if such Lender is, on the date hereof (or on the
date it becomes a Lender hereunder as provided in
Section 12.06(b)) and on the date of any change in the
Applicable Lending Office of such Lender, required or
entitled to submit either a Form 1001 (relating to such
Lender and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder
in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect
of the Loans) (such Forms 1001 and 4224 being, collectively,
the "Non-Withholding Forms"), or
(ii) to any U.S. Taxes imposed solely by reason of the
failure by such non-U.S. Person (or, if such non-U.S. Person
is not the beneficial owner of the relevant Loan, such
beneficial owner) to (A) file any of the Non-Withholding
Forms or (B) comply with applicable certification,
information, documentation or other reporting requirements
<PAGE>
concerning the nationality, residence, identity or
connections with the United States of America of such
non-U.S. Person (or beneficial owner, as the case may be) if
such compliance is required or permitted by statute or
regulation of the United States of America as a precondition
to relief or exemption from such U.S. Taxes.
For the purposes of this paragraph, (A) "Form 1001" means
Form 1001 (Ownership, Exemption, or Reduced Rate Certificate) of
the Department of the Treasury of the United States of America,
(B) "Form 4224" means Form 4224 (Exemption from Withholding of
Tax on Income Effectively Connected with the Conduct of a Trade
or Business in the United States) of the Department of the
Treasury of the United States of America and (C) "Form W-8" means
Form W-8 (Certificate of Foreign Status) of the Department of
Treasury of the United States of America. Each of the Forms
referred to in the foregoing clauses (A), (B) and (C) shall
include such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United
States of America to document a claim to which such Form relates.
(b) The Borrower to Provide Evidence of Deduction,
Withholding or Payment. Within 30 days after paying any amount
to the Administrative Agent or any Lender from which it is
required by law to make any deduction or withholding, and within
30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the
Borrower shall deliver to the Administrative Agent for delivery
to such non-U.S. Person evidence satisfactory to such Person of
such deduction, withholding or payment (as the case may be).
(c) Delivery of Non-Withholding Forms. Each Foreign
Lender shall deliver to the Borrower (with copies to the
Administrative Agent) on or before the date hereof (or in the
case of a Foreign Lender who became a Lender by way of
assignment, on or before the date of the assignment) or at least
five Business Days prior to the first date for any payment
herewith to such Lender, and from time to time as required for
renewal under applicable law, a Non-Withholding Form duly
executed by such Lender. The Borrower shall be entitled to rely
on such forms in its possession until receipt of any revised or
successor form pursuant to this Section 5.07(c).
(d) Cooperation. Each Lender shall use reasonable
efforts to avoid or minimize any amounts which might otherwise be
payable by the Borrower pursuant to this Section 5.07. If the
Borrower shall pay any such gross-up with respect to U.S. Taxes
in relation to any Lender and such Lender shall receive a refund
or tax credit with respect to all or a part of such payment, such
Lender shall promptly pay the Borrower an amount equal to such
refund or tax credit.
5.08 Replacement of Lenders. If any Lender requests
compensation pursuant to Section 5.01, 5.06 or 5.07 hereof, or
any Lender's obligation to make or Continue Loans of any Type, or
to Convert Loans of any <PAGE> Type into the other Type of Loan, shall
be suspended pursuant to Section 5.01 or 5.03 (any such Lender
requesting such compensation, or whose obligations are so
suspended, being herein called a "Requesting Lender"), the
Borrower, upon three Business Days notice, may require that such
Requesting Lender transfer all of its right, title and interest
under this Agreement and such Requesting Lender's Notes to any
bank or other financial institution (a "Proposed Lender")
identified by the Borrower that is satisfactory to the
Administrative Agent and the Issuing Lender (i) if such Proposed
Lender agrees to assume all of the obligations of such Requesting
Lender hereunder, and to purchase all of such Requesting Lender's
Loans hereunder for consideration equal to the aggregate
outstanding principal amount of such Requesting Lender's Loans,
together with interest thereon to the date of such purchase (to
the extent not paid by the Borrower), and satisfactory
arrangements are made for payment to such Requesting Lender of
all other amounts accrued and payable hereunder to such
Requesting Lender as of the date of such transfer (including any
fees accrued hereunder and any amounts that would be payable
under Section 5.05 as if all of such Requesting Lender's Loans
were being prepaid in full on such date) and (ii) if such
Requesting Lender has requested compensation pursuant to
Section 5.01, 5.06 or 5.07 hereof, such Proposed Lender's
aggregate requested compensation, if any, pursuant to
Section 5.01, 5.06 or 5.07 with respect to such Requesting
Lender's Loans is lower than that of the Requesting Lender.
Subject to the provisions of Section 12.06(b), such Proposed
Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Borrower
hereunder the agreements of the Borrower contained in
Sections 5.01, 5.06, 5.07 and 12.04 hereof (without duplication
of any payments made to such Requesting Lender by the Borrower or
the Proposed Lender) shall survive for the benefit of such
Requesting Lender under this Section 5.08 with respect to the
time prior to such replacement.
Section 6. Guarantee.
6.01 The Guarantee. Subject to the provisions of
Section 9.23 with respect to Removed Properties, the Subsidiary
Guarantors hereby jointly and severally guarantee to each Lender
and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to, and the Note held
by each Lender of, the Borrower and all other amounts from time
to time owing to the Lenders or the Administrative Agent by the
Borrower under this Agreement and under the Notes and by any
Obligor under any of the other Loan Documents, in each case
strictly in accordance with the terms thereof (such obligations
being herein collectively called the "Guaranteed Obligations").
The Subsidiary Guarantors hereby further jointly and severally
agree that if the Borrower shall fail <PAGE> to pay in full when due
(whether at stated maturity, by acceleration or otherwise) any of
the Guaranteed Obligations, the Subsidiary Guarantors will
promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such
extension or renewal.
6.02 Obligations Unconditional. The obligations of
the Subsidiary Guarantors under Section 6.01 are absolute and
unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the
obligations of the Borrower under this Agreement, the Notes or
any other agreement or instrument referred to herein or therein,
or any substitution, release or exchange of any other guarantee
of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 6.02 that the obligations of
the Subsidiary Guarantors hereunder shall be absolute and
unconditional, joint and several, under any and all
circumstances. Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of the
Subsidiary Guarantors hereunder, which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice
to the Subsidiary Guarantors, the time for any performance
of or compliance with any of the Guaranteed Obligations
shall be extended, or such performance or compliance shall
be waived;
(ii) any of the acts mentioned in any of the
provisions of this Agreement or the Notes or any other
agreement or instrument referred to herein or therein shall
be done or omitted;
(iii) the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or amended in
any respect, or any right under this Agreement or the Notes
or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt
with; or
<PAGE>
(iv) any lien or security interest granted to, or in
favor of, the Administrative Agent or any Lender or Lenders
as security for any of the Guaranteed Obligations shall fail
to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence,
presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or
any Lender exhaust any right, power or remedy or proceed against
the Borrower under this Agreement or the Notes or any other
agreement or instrument referred to herein or therein, or against
any other Person under any other guarantee of, or security for,
any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Subsidiary
Guarantors under this Section 6 shall be automatically reinstated
if and to the extent that for any reason any payment by or on
behalf of the Borrower in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any
of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the
Subsidiary Guarantors jointly and severally agree that they will
indemnify the Administrative Agent and each Lender on demand for
all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6.04 Subrogation. The Subsidiary Guarantors hereby
jointly and severally agree that until the payment and
satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders
under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee
in Section 6.01, whether by subrogation or otherwise, against the
Borrower or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed
Obligations.
6.05 Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and
the Lenders, the obligations of the Borrower under this Agreement
and the Notes may be declared to be forthwith due and payable as
provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in
Section 10) for purposes of Section 6.01 notwithstanding any
stay, injunction or other prohibition preventing such declaration
(or such obligations from becoming automatically due and payable)
as against the Borrower and that, in the event of such
declaration (or such obligations being deemed to have become
automatically due and payable), such <PAGE> obligations (whether or not
due and payable by the Borrower) shall forthwith become due and
payable by the Subsidiary Guarantors for purposes of
Section 6.01.
6.06 Instrument for the Payment of Money. Each
Subsidiary Guarantor hereby acknowledges that the guarantee in
this Section 6 constitutes an instrument for the payment of
money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a
dispute by such Subsidiary Guarantor in the payment of any moneys
due hereunder, shall have the right to bring motions and/or
actions under New York CPLR Section 3213.
6.07 Continuing Guarantee. The guarantee in this
Section 6 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
6.08 Rights of Contribution. The Subsidiary
Guarantors and the Borrower hereby agree, as between themselves,
that if any Subsidiary Guarantor shall become an Excess Funding
Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor and the Borrower shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay
to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's or the Borrower's Pro Rata Share (as
defined below and determined, for this purpose, without reference
to the Properties, debts and liabilities of such Excess Funding
Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor and the Borrower to any Excess Funding
Guarantor under this Section 6.08 shall be subordinate and
subject in right of payment to the prior payment in full of the
obligations of (a)such Subsidiary Guarantor under the other
provisions of this Section 6 and (b) the Borrower under the Loan
Documents, and such Excess Funding Guarantor shall not exercise
any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations.
For purposes of this Section 6.08, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a
Subsidiary Guarantor that has paid an amount in excess of its Pro
Rata Share of such Guaranteed Obligations, (ii) "Excess Payment"
means, in respect of any Guaranteed Obligations, the amount paid
by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for
any Subsidiary Guarantor, the ratio (expressed as a percentage)
of (x) the amount by which the aggregate present fair saleable
value of all Properties of such Subsidiary Guarantor (excluding
any shares of stock of any other Subsidiary Guarantor) exceeds
the amount of all the debts and liabilities of such Subsidiary
Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such
Subsidiary Guarantor hereunder and any obligations of any other
Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (y) the <PAGE> amount by which the aggregate fair saleable
value of all Properties of the Borrower and all of the Subsidiary
Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Borrower and
the Subsidiary Guarantors hereunder and under the other Loan
Documents) of the Borrower and all of the Subsidiary Guarantors,
determined (A) with respect to any Subsidiary Guarantor that is a
party hereto on the Closing Date, as of the Closing Date, and
(B) with respect to any other Subsidiary Guarantor, as of the
date such Subsidiary Guarantor becomes a Subsidiary Guarantor
hereunder.
6.09 General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or
any state or Federal bankruptcy, insolvency, reorganization or
other law affecting the rights of cr editors generally, if the
obligations of any Subsidiary Guarantor under Section 6.01 would
otherwise, taking into account the provisions of Section 6.08, be
held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of
the amount of its liability under Section 6.01, then,
notwithstanding any other provision hereof to the contrary, the
amount of such liability shall, without any further action by
such Subsidiary Guarantor, any Lender, the Administrative Agent
or any other Person, be automatically limited and reduced to the
highest amount that is valid and enforceable and not subordinated
to the claims of other creditors as determined in such action or
proceeding.
Section 7. Conditions.
7.01 Effective Date. The obligation of any Lender to
make Loans and of the Issuing Lender to issue Letters of Credit
are subject to (i) the satisfaction, immediately prior to or
concurrent with the Effective Date of the following conditions
precedent and (ii) the Administrative Agent having received the
following documents, each of which shall be satisfactory to the
Administrative Agent and the Co-Arrangers (and to the extent
specified below, to each Lender) in form and substance:
(a) Agreement. From each party to this Agreement, a
duly executed counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. An opinion,
dated the Effective Date, of Stinson, Mag & Fizzell, counsel
to the Obligors, substantially in the form of Exhibit C, and
covering such other matters as the Administrative Agent and
the Co-Arrangers may reasonably request (and each Obligor
hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
<PAGE>
(c) Tax and Securities Law Opinions. Reliance
letters, dated the Effective Date, of Sullivan & Cromwell
and Ballard Spahr Andrews & Ingersoll, counsel to the
Borrower, substantially in the forms of Exhibit H, and
covering such other matters as the Administrative Agent and
the Co-Arrangers may reasonably request (and the Borrower
hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to the
Obligors. An opinion, dated the Effective Date, of Sullivan
& Cromwell, special New York counsel to the Obligors,
substantially in the form of Exhibit D (and each Obligor
hereby instructs such counsel to deliver such opinion to the
Lenders).
(e) Organizational Documents. With respect to each of
the Obligors, AMC, AMCE and the AMCE Subsidiaries, its
declaration of trust or certificate of incorporation (or
equivalent organizational document), as applicable, as filed
with the Secretary of State in the respective jurisdiction
of organization and in effect on the Effective Date and
certified to be true, correct and complete by the
appropriate Secretary of State as of a date not more than 10
days prior to the Effective Date, together with a good
standing certificate (or the equivalent thereof) for (i)
each such entity from the applicable Secretary of State for
the state in which it was organized, (ii) with respect to
the Obligors, each state in which the respective Obligor
owns or ground leases an Initial Eligible Property and, if
available, an Optional Eligible Property and (iii) with
respect to AMC, each state in which the Initial Eligible
Properties and, if available, the Optional Eligible
Properties are located.
(f) Certified Resolutions, etc. A certificate of the
secretary or assistant secretary of each Obligor dated the
Effective Date, certifying (i) the names and true signatures
of its incumbent officers authorized to sign the applicable
Basic Documents, (ii) the declaration of trust, by-laws or
equivalent organizational documents, as the case may be, as
in effect on the Effective Date and (iii) the resolutions of
the board of trustees, directors or members, as the case may
be, of each Obligor approving and authorizing the execution,
delivery and performance of all Loan Documents and the other
Basic Documents executed by it.
(g) Officer's Certificate. A certificate of the
President or a Financial Officer of the Borrower, dated the
Effective Date, confirming compliance with the conditions
set forth in the lettered clauses (a) and (b) of the first
sentence of Section 7.02.
<PAGE>
(h) Borrowing Base Certificate. A Borrowing Base
Certificate, dated the Effective Date, evidencing compliance
with the terms of this Agreement.
(i) Notes. The Notes, duly completed and executed for
each Lender.
(j) Insurance. Certificates of insurance issued on
behalf of the Borrower, or the tenant under any Qualified
Lease, evidencing the existence of all insurance required to
be maintained by the Borrower pursuant to Section 9.04, such
certificates to be in such form and contain such information
as is specified in Section 9.04. In addition, the Borrower
shall have delivered a certificate of a Financial Officer of
the Borrower setting forth the insurance obtained by it in
accordance with the requirements of Section 9.04 and stating
that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid.
(k) Equity Documents. A Financial Officer's
certificate evidencing that (i) the IPO has been completed
in accordance with the Registration Statement and the
Prospectus, (ii) the Borrower shall have received net cash
consideration after the payment of any transaction expenses)
of not less than $250,000,000 representing proceeds of an
aggregate of 13,680,000 shares of common stock of the
Borrower and (iii) the operating management of the Borrower
conforms to the description contained in the Prospectus.
(l) Financial Statements. The Administrative Agent
shall have received such financial statements of the
Borrower (pro forma), AMC and AMCE as it shall deem
necessary, in each case satisfactory to each Lender.
(m) Initial and Optional Eligible Properties.
Evidence that the Initial Eligible Properties and the
Optional Eligible Properties qualify as Eligible Properties,
including, without limitation:
(i) Engineering Reports. An Engineering Report with
respect to each Initial Eligible Property and
Optional Eligible Property in form and substance
satisfactory to the Administrative Agent;
(ii) Title Insurance Policies. Copies of the
respective Obligor's (i) owner's title insurance
policies with respect to each Initial Borrowing
Base Property insuring that such Obligor has good
and marketable fee or leasehold (pursuant to
Qualified Ground Leases) title to the applicable
land and Buildings located thereat and (ii)
owner's title commitments with <PAGE> respect to the
remaining Initial Eligible Property and each
remaining Optional Eligible Property committing
the applicable title insurance company to insure
that such Obligor has good and marketable fee or
leasehold (pursuant to Qualified Ground Leases)
title to the applicable land and Buildings located
thereat, in the case of both clause (i) and (ii),
in form and substance satisfactory to the
Administrative Agent;
(iii) Environmental Reports. An Environmental
Report (which may be an Environmental Report
delivered to the Borrower by AMC) with respect to
each Initial Eligible Property and Optional
Eligible Property in form and substance
satisfactory to the Administrative Agent;
(iv) Qualified Ground Leases. Copies (certified by a
Financial Officer) of any Qualified Ground Leases
with respect to the Initial Eligible Properties
and the Optional Eligible Properties;
(v) Qualified AMC Leases. With respect to each
Initial Borrowing Base Property, a copy (certified
by a Financial Officer) of the applicable
Qualified AMC Lease and the AMCE Lease Guaranty
from AMCE related thereto, in each case duly
executed and delivered by the respective parties
thereto, together with:
(A) Certificates of the secretary or
assistant secretary of both AMC, AMCE
and the AMCE Subsidiaries dated the
Effective Date, certifying,
respectively, (1) the names and true
signatures of its incumbent officers
authorized to sign the applicable
Qualified AMC Leases, AMCE guaranties,
the Option Agreements and the Right of
First Refusal Agreement, (2) its
certificate of incorporation and its by-
laws as in effect on the Effective Date
and (3) the resolutions of its board of
directors approving and authorizing, as
applicable, the execution, delivery and
performance of all Qualified AMC Leases,
AMCE Guaranties, the Option Agreements
and the Right of First Refusal Agreement
executed by it;
(B) An opinion, dated the Effective Date, of
Lathrop & Gage, counsel to AMC, AMCE and
the AMCE Subsidiaries <PAGE> substantially in
the form of Exhibit G-2, and covering
such other matters as the Administrative
Agent may reasonably request; and
(C) An opinion, dated the Effective Date, of
local real estate counsel to the
Borrower substantially in the form of
Exhibit Q, and covering such other
matters as the Administrative Agent may
reasonably request;
(vi) Certificates of Occupancy. Copies of certificates
of occupancy (certified by a Financial Officer)
covering each of the Initial Borrowing Base
Properties (with the exception of the Initial
Borrowing Base Property named Promenade 16); and
(vii) Lease Financial Information. Pro forma rent
information (certified by a Financial Officer)
with respect to each Initial Borrowing Base
Property, in form, scope and substance reasonably
satisfactory to each of the Lenders.
(n) Option and Right of First Offer. Copies
(certified by a Financial Officer) of the Option Agreements
and the Right of First Refusal Agreement duly executed and
delivered by the Borrower, AMCE and the AMCE Subsidiaries,
as applicable, and evidence satisfactory to the
Administrative Agent that such agreements conform in all
material respects with the descriptions of such agreements
contained in the Prospectus.
(o) Approvals. Evidence that all third party
approvals necessary or in the reasonable discretion of the
Administrative Agent advisable in connection with the IPO,
the Loan Documents and the continuing operations of the
Borrower and its Subsidiaries have been obtained and are in
full force and effect.
(p) Solvency. A certificate of a Financial Officer of
the Borrower, to the effect that after giving effect to the
borrowings hereunder, the IPO and the acquisition of the
Initial Borrowing Base Properties, none of the Borrower and
its Subsidiaries (on a consolidated basis) is insolvent or
will be left with unreasonably small capital with which to
engage in its business or will have incurred debts beyond
its ability to pay such debts as they mature; provided,
however, such certificate as it relates to the obligations
of the Subsidiary Guarantors under Section 6 shall be based
on such Subsidiary Guarantors' obligations on a consolidated
basis taken as a whole and not individually.
<PAGE>
(q) Estoppels. Estoppels duly executed and delivered
from (i) subject to any limitations contained in the
applicable Qualified Ground Lease, any ground lessor with
respect to an Initial Borrowing Base Property, (ii) AMC with
respect to each Qualified AMC Lease for an Initial Borrowing
Base Property in the form of Exhibit J, (iii) AMCE with
respect to the AMCE Guaranties of each Qualified AMC Lease
for each Initial Borrowing Base Property in the form of
Exhibit K, (iv) AMCE with respect to the Right of First
Refusal Agreement in the form of Exhibit L and (v) each of
the AMCE Subsidiaries with respect to its respective Option
Agreements in the form of Exhibit M.
(r) Other Documents. Such other documents as the
Administrative Agent or any Lender may reasonably request.
The obligation of any Lender to make its initial
extension of credit hereunder is also subject to the payment by
the Borrower of such fees as the Borrower shall have agreed to
pay to any Lender or the Administrative Agent in connection
herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Hadley & McCloy, special New York
counsel to BNY, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the Notes and the
other Loan Documents and the extensions of credit hereunder (to
the extent that statements for such fees and expenses have been
delivered to the Borrower).
7.02 Initial and Subsequent Extensions of Credit. The
obligation of the Lenders to make any Loan or otherwise extend
any credit to the Borrower upon the occasion of each borrowing or
other extension of credit hereunder (including the initial
borrowing), and of the Issuing Lender to issue, amend, renew or
extend any Letter of Credit, is subject to the further
satisfaction of the following conditions precedent (both
immediately prior to the making of such Loan or other extension
of credit and also after giving effect thereto and to the
intended use thereof), each of which shall be satisfactory to the
Administrative Agent:
(a) the representations and warranties made by the
Obligors in Section 8 and by each Obligor in each of the
other Loan Documents to which it is a party shall be true
and complete on and as of the date of the making of such
Loan or other extension of credit with the same force and
effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date);
(b) no Default shall have occurred and be continuing;
<PAGE>
(c) the Administrative Agent shall have received the
notice required pursuant to (i) Section 2.03 in the case of
a Letter of Credit and (ii) a Notice of Borrowing pursuant
to Section 4.05 in the case of a requested Loan;
(d) the Administrative Agent shall have received a
completed Borrowing Base Certificate signed by a Financial
Officer setting forth computations evidencing compliance
with the covenants contained in Sections 9.08(f), 9.10 and
9.22 after giving effect to such requested borrowing or
issuance, amendment, renewal or extensions of such Letter of
Credit (including, without limitation, a certification that,
to the best knowledge of such Financial Officer, if the
Borrowing Base Value were to be calculated through the date
of the requested extension of credit rather than through the
last day of the most recently completed month, the aggregate
principal amount of the Loans together with the aggregate
amount of all Letter of Credit Liabilities would not exceed
50% of the Borrowing Base Value as so calculated); and
(e) the aggregate principal amount of the Loans
together with the aggregate amount of all Letter of Credit
Liabilities shall not exceed the 50% of Borrowing Base Value
reflected on the Borrowing Base Certificate delivered in
connection with such borrowing.
Each Notice of Borrowing or request for the issuance, amendment,
renewal or extension of a Letter of Credit by the Borrower
hereunder shall constitute a certification by the Borrower to the
effect set forth in clauses (a), (b) and (e) in the preceding
sentence (both as of the date of such notice or request and,
unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, amendment,
renewal or extension, as of the date of such borrowing or
issuance).
7.03 Addition of Eligible Properties to the Borrowing
Base. The Borrower's right to cause any additional Eligible
Properties to be added to the Borrowing Base is subject to the
condition precedent that, at least ten (10) Business Days prior
to such addition, the Administrative Agent has received a written
request from the Borrower for such addition, together with
evidence that the proposed Real Estate Property qualifies as an
Eligible Property, including, without limitation, the following
documents, all of which shall be reasonably satisfactory to the
Administrative Agent:
(a) Financial Officer's Certificate. A certificate of
a Financial Officer certifying that such Eligible Property
meets the requirements of an Eligible Property under this
<PAGE>
Agreement and containing a narrative description of the
Eligible Property and its intended use.
(b) Engineering Report. An Engineering Report
indicating no Disqualifying Condition.
(c) Title Insurance Policy. Copy of the Borrower's
owner's title insurance policies with respect to such Real
Estate Property.
(d) Environmental Report. An Environmental Report
indicating no Disqualifying Condition.
(e) Qualified Ground Lease. To the extent applicable,
a copy (certified by a Financial Officer) of any Qualified
Ground Lease relating to such Real Estate Property.
(f) Qualified Lease. A copy (certified by a Financial
Officer) of the applicable (i) Qualified AMC Lease and any
AMCE Lease Guaranty related thereto or (ii) Qualified Third
Party Lease, together with any applicable lease guaranty, in
each case duly executed and delivered by the respective
parties thereto, together with:
(i) Officer certificates for the Borrower, lessee and
any guarantor certifying, respectively, (1) the
names and true signatures of the parties to such
leases and, if applicable, lease guaranty, (2) any
lessee's (and, if applicable, guarantor's)
organizational documents and (3) the required
resolutions of the applicable Obligor, the lessee
and any guarantor approving and authorizing their
respective execution, delivery and performance of
such lease and any applicable guaranty;
(ii) Opinions of counsel to (A) the applicable Obligor
substantially in the form of Exhibit G-1 and (B)
the applicable lessee and any guarantor
substantially covering as to such party the
matters set forth in the form of Exhibit G-2, and,
in each case, covering such other matters as the
Administrative Agent may reasonably request; and
(iii) An opinion of local real estate counsel to
the Borrower and any other applicable Obligor
substantially in the form of Exhibit Q, and
covering such other matters as the Administrative
Agent may reasonably request.
<PAGE>
(g) Certificates of Occupancy. Copy of a certificate
of occupancy (certified by a Financial Officer) covering
such Real Estate Property.
(h) Financial Information. Pro forma rent information
(certified by a Financial Officer) and, if applicable,
historical operating financials for the applicable Real
Estate Property (in each case certified by a Financial
Officer to his/her best knowledge) with respect to such Real
Estate Property; and, if the lessee is not AMC, financial
and other credit history information with respect to such
lessee and any applicable lease guarantor.
(i) Estoppels. Estoppels duly executed and delivered
from (i) any applicable ground lessor substantially in the
form of Exhibit I, subject to such non-material changes as
are approved by the Administrative Agent, (ii) the
applicable lessee substantially in the form of Exhibit J and
(iii) any guarantor substantially in the form of Exhibit K.
(j) Organizational Documents. With respect to each of
the applicable Obligor and AMC, if not previously delivered
to the Administrative Agent on the Effective Date, a good
standing certificate (or the equivalent thereof) for each
state in which the additional Eligible Properties are
located. In addition, if such additional Eligible Property
is owned or ground leased by a Subsidiary, the following:
(i) Its declaration of trust or certificate of
incorporation (or equivalent organizational
document), as applicable, as filed with the
Secretary of State in the respective jurisdiction
of organization and in effect as of such date and
certified to be true, correct and complete by the
appropriate Secretary of State as of a date not
more than 10 days prior to delivery to the
Administrative Agent, together with a good
standing certificate (or the equivalent thereof)
for such Subsidiary from the applicable Secretary
of State for the state in which it was organized;
(ii) Officer certificates for such Subsidiary
certifying such Subsidiary's organizational
documents; and
(iii) Opinion of counsel to such Subsidiary
substantially in the form of Exhibits C and D,
and, in each case, covering such other matters as
the Majority Lenders may reasonably request;
provided, however, the provisions thereof shall be
modified to address only such Obligor becoming a
Subsidiary Guarantor pursuant to Section 9.23.
<PAGE>
(k) Guarantee Assumption Agreement. If applicable, a
Guarantee Assumption Agreement duly executed and delivered
by the applicable Subsidiary Guarantor, and the Borrower
shall have otherwise complied with the provisions of Section
9.23.
(l) Other Documents. Such other documents as the
Majority Lenders may reasonably request.
Section 8. Representations and Warranties. The
Borrower represents and warrants to the Administrative Agent and
the Lenders that:
8.01 Organization; Powers.
(a) Borrower (i) is a real estate investment trust
duly organized, validly existing and in good standing under the
laws of the State of Maryland; (ii) has all requisite real estate
investment trust power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed
to be conducted; and (iii) is qualified to do business and is in
good standing in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and
where failure so to qualify could (either individually or in the
aggregate) have a Material Adverse Effect.
(b) Each of the Borrower's Subsidiaries: (i) is a
corporation, partnership, limited liability company or other
entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization; (ii) has
all requisite corporate or other power, and has all material
governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now
being or as proposed to be conducted; and (iii) is qualified to
do business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could
(either individually or in the aggregate) have a Material Adverse
Effect.
8.02 Authorization; Enforceability Each Obligor has
all necessary real estate investment trust, corporate,
partnership, limited liability company or other organizational,
as applicable, power, authority and legal right, to execute,
deliver and perform its obligations under each of the Basic
Documents to which it is a party; the execution, delivery and
performance by each Obligor of each of the Basic Documents to
which it is a party have been duly authorized by all necessary
corporate or other organizational, as applicable, action on its
part (including, without limitation, any required shareholder
approvals); and this Agreement has been duly and validly executed
and delivered by each Obligor and constitutes, and each of the
Notes and the other Basic <PAGE> Documents when executed and delivered
(in the case of the Notes, for value) by such Obligor, as
applicable, will constitute, each of their legal, valid and
binding obligation, enforceable against each Obligor, as
applicable, in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
8.03 Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any
Governmental Authority or regulatory authority or agency, or any
securities exchange, are necessary for the execution, delivery or
performance by any Obligor of this Agreement or any of the other
Basic Documents to which each is a party or for the legality,
validity or enforceability hereof or thereof.
8.04 No Breach. None of the execution and delivery of
this Agreement and the Notes and the other Basic Documents, the
consummation of the transactions herein and therein contemplated
or compliance with the terms and provisions hereof and thereof
will conflict with or result in a breach of, or require any
consent under, the declaration of trust or by-laws (or equivalent
organizational documents) of any Obligor or any applicable law or
regulation, or any order, writ, injunction or decree of any court
or Governmental Authority, or any agreement or instrument to
which any Obligor is a party or by which any of them or any of
their Property is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any
Property of any Obligor pursuant to the terms of any such
agreement or instrument.
8.05 Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore
furnished to the Administrative Agent (for delivery to each of
the Lenders) (i) the pro forma balance sheet and audited balance
sheet set forth in the Prospectus and (ii) its most recent
financial statements. Such pro forma and audited balance sheets
and statements are complete and correct and fairly present the
unconsolidated pro forma and actual, as the case may be,
financial condition of the Borrower as of the dates thereof.
None of the Borrower and its Subsidiaries has on the date hereof
any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in such balance sheets
as at such date.
<PAGE>
(b) No Material Adverse Change-Borrower. Since
November 18, 1997, there has been no material adverse change in
the consolidated financial condition, operations, business or
prospects taken as a whole of the Borrower and its Subsidiaries
from that set forth in the balance sheets and financial
statements as at such date referred to in clause (a) of this
Section 8.05.
8.06 Properties.
(a) Property Generally. Each Obligor owns and has on
the date hereof, and will own and have on the Effective Date
(after giving effect to the transactions contemplated to occur on
or before the Effective Date), good and marketable title or
leasehold title (subject only to Permitted Liens) to its
Properties, including, without limitation, good and marketable
fee simple title or leasehold title (pursuant to a Qualified
Ground Lease) to the respective Borrowing Base Properties,
subject in each case only to Permitted Liens.
(b) Intellectual Property. Each of the Borrower and
its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and
its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or
in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. Notwithstanding the foregoing, the
Lenders acknowledge that the Borrower intends to make a cease and
desist demand on another Person which has indicated an intent to
use the term "Entertainment Properties".
(c) Borrowing Base Properties. Each Borrowing Base
Property satisfies the conditions contained in the definition of
Borrowing Base Property.
8.07 Litigation. Except as disclosed in Schedule II
hereto, there are no legal or arbitral proceedings, or any
proceedings by or before any Governmental Authority or regulatory
authority or agency, now pending or (to the knowledge of the
Borrower) threatened against the Borrower or any of its
Subsidiaries that, if adversely determined, could (either
individually or in the aggregate) have a Material Adverse Effect.
8.08 Environmental Matters. Each of the Borrower and
its Subsidiaries has obtained all environmental, health and
safety permits, licenses and other authorizations required under
all Environmental Laws to carry on its business as now being or
as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization would not (either
individually or in the aggregate) have a Material Adverse Effect.
Each of such permits, licenses and authorizations is in full
force and effect and each of the Borrower, its Subsidiaries <PAGE> and
(to the best of the Borrower's knowledge) the Borrowing Base
Properties are in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent
failure to comply therewith would not (either individually or in
the aggregate) have a Material Adverse Effect.
In addition, except as set forth in Schedule II:
(a) No Pending Environmental Matters. No notice,
notification, demand, request for information, citation,
summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or
review is pending or threatened by any Governmental
Authority or other entity with respect to any alleged
failure by the Borrower, any of its Subsidiaries or, to the
best of the Borrower's knowledge, any lessee of a Real
Estate Property to have any environmental permit, license or
other authorization required under any Environmental Law in
connection with the conduct of the business of the Borrower
or any of its Subsidiaries or the Real Estate Properties
leased by any such lessee, or with respect to any
generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous
Materials generated by the Borrower, any of its Subsidiaries
or any such lessee in connection with any Real Estate
Property.
(b) No Permits Required; Certain Specific
Representations. None of the Borrower, any of its
Subsidiaries or, to the best of the Borrower's knowledge,
any lessee of a Real Estate Property (in the case of such
lessee with respect to such Real Estate Property only) owns,
operates or leases a treatment, storage or disposal facility
requiring a permit under the Resource Conservation and
Recovery Act of 1976, as amended, or under any comparable
state or local statute, and to the best of the Borrower's
knowledge:
(i) no polychlorinated biphenyls (PCB's) are or have
been present at any site or facility now or previously
owned, operated or leased by the Borrower or any of its
Subsidiaries;
(ii) no asbestos or asbestos-containing materials is
or has been present at any site or facility now or
previously owned, operated or leased by the Borrower or
any of its Subsidiaries;
<PAGE>
(iii) there are no underground storage tanks or
surface impoundments for Hazardous Materials, active or
abandoned, at any site or facility now or previously
owned, operated or leased by the Borrower or any of its
Subsidiaries;
(iv) no Hazardous Materials have been Released by the
Borrower, or to the best of the Borrower's knowledge,
any other Person at, on or under any site or facility
owned, operated or leased by the Borrower or any of its
Subsidiaries in a reportable quantity established by
statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise
Released by the Borrower or, to the best of the
Borrower's knowledge, any other Person at, on or under
any site or facility owned, operated or leased by the
Borrower or any of its Subsidiaries that would (either
individually or in the aggregate) have a Material
Adverse Effect.
(c) No Hazardous Material Transported to NPL Sites.
Neither the Borrower nor any of its Subsidiaries has
transported or arranged for the transportation of any
Hazardous Material to any location that is listed on the
National Priorities List ("NPL") under the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), listed for possible
inclusion on the NPL by the Environmental Protection Agency
in the Comprehensive Environmental Response and Liability
Information System, as provided for by 40 C.F.R.
Section 300.5 ("CERCLIS"), or on any similar state or local
list or that is the subject of Federal, state or local
enforcement actions or other investigations that may lead to
Environmental Claims against the Borrower or any of its
Subsidiaries.
(d) No Other Locations. No Hazardous Material
generated by the Borrower or any of its Subsidiaries has
been recycled, treated, stored, disposed of or Released by
the Borrower or any of its Subsidiaries at any location
other than those listed in Schedule II.
(e) No Notifications or Listings. No written
notification of a Release of a Hazardous Material has been
filed by or on behalf of the Borrower or any of its
Subsidiaries and, to the best of the Borrower's knowledge,
no site or facility now or previously owned, operated or
leased by the Borrower or any of its Subsidiaries is listed
or proposed for listing on the NPL, CERCLIS or any similar
state list of sites requiring investigation or clean-up.
(f) No Liens or Restrictions. To the best of the
Borrower's knowledge, no Liens have arisen under or pursuant
to any Environmental Laws on any site or facility owned,
<PAGE>
operated or leased by the Borrower or any of its
Subsidiaries and no Governmental Authority action has been
taken or is in process that could subject any such site or
facility to such Liens and none of the Borrower or any of
its Subsidiaries has been required to place any notice or
restriction relating to the presence of Hazardous Materials
at any site or facility owned by it in any deed to the real
property on which such site or facility is located.
(g) Full Disclosure. All environmental
investigations, studies, audits, tests, reviews or other
analyses that are in the possession of the Borrower, any of
its Subsidiaries or any of its Partially-Owned Entities in
relation to facts, circumstances or conditions at or
affecting any site or facility now or previously owned,
operated or leased by the Borrower or any of its
Subsidiaries have been made available to the Lenders.
8.09 Compliance with Laws and Agreements. Each of the
Borrower, its Subsidiaries and the Borrowing Base Properties is
in compliance with all laws, regulations and orders of any
Governmental Authority or regulatory authority or agency
applicable to it or its Property and all indentures, agreements
and other instruments binding upon it or its Property, except
where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect.
8.10 Investment Company Act. Neither the Borrower nor
any of its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
8.11 Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or
an "affiliate" of a "holding company" or a "subsidiary company" of
a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
8.12 Taxes. The Borrower and its Subsidiaries have
filed all Federal income tax returns and all other tax returns
that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received
by the Borrower or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes and other governmental charges
are, in the opinion of the Borrower, adequate. The Borrower has
not given or been requested to give a waiver of the statute of
limitations relating to the payment of any Federal, state, local
and foreign taxes or other impositions.
<PAGE>
8.13 ERISA. Each Plan, and, to the knowledge of the
Borrower, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material
respects in compliance with, the applicable provisions of ERISA,
the Code and any other Federal or State law, and no ERISA Event
has occurred and is continuing as to which the Borrower would be
under an obligation to furnish a report to the Lenders under
Section 9.02(c).
8.14 True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules, including,
without limitation, the Prospectus, furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender
in connection with the negotiation, preparation or delivery of
this Agreement and the other Loan Documents or included herein or
therein or delivered pursuant hereto or thereto, when taken as a
whole do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements
herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished
after the date hereof by the Borrower and its Subsidiaries to the
Administrative Agent and the Lenders in connection with this
Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby will be true, complete and
accurate in every material respect, or (in the case of
projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact
known to the Borrower that could have a Material Adverse Effect
that has not been disclosed herein, in the Prospectus, in the
other Loan Documents or in a report, financial statement,
exhibit, schedule, disclosure letter or other writing furnished
to the Lenders for use in connection with the transactions
contemplated hereby or thereby. Notwithstanding anything to the
contrary contained herein, with respect to (a) materials,
information or other matters contained in the Prospectus relating
to AMC or AMCE, (b) any information furnished to the Lenders by
AMC or AMCE, (c) any information furnished to the Borrower by AMC
or AMCE and delivered by any Obligor to the Lenders and (d) any
representations and warranties by AMC or AMCE contained in their
respective estoppel certificates delivered to the Lenders, each
Obligor only represents and warrants that it has received no
information that would lead it to believe that any of such
materials, repreentations and warranties is false or misleading
in any material respect.
8.15 Use of Credit. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or
carrying Margin Stock, and no part of the proceeds of any
extension of credit hereunder will be used to buy or carry any
Margin Stock.
<PAGE>
8.16 Material Agreements and Liens.
(a) Material Agreements. Except for the transactions
contemplated by this Agreement, Part A of Schedule I is a
complete and correct list of each credit agreement, loan
agreement, indenture, purchase agreement, guarantee, letter of
credit or other arrangement providing for or otherwise relating
to any Indebtedness or any extension of credit (or commitment for
any extension of credit) to, or guaranteed by, the Borrower or
any of its Subsidiaries outstanding on the date hereof, or that
(after giving effect to the transactions contemplated to occur on
or before the Effective Date) will be outstanding on the
Effective Date, the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $1,000,000, and the
aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in
Part A of Schedule I.
(b) Liens. Except for the transactions contemplated
by this Agreement, Part B of Schedule I is a complete and correct
list of each Lien securing Indebtedness of the Borrower
outstanding on the date hereof, or that (after giving effect to
the transactions contemplated to occur on or before the Effective
Date) will be outstanding, the aggregate principal or face amount
of which equals or exceeds (or may equal or exceed) $500,000 and
covering any Property of the Borrower or any of its Subsidiaries,
and the aggregate Indebtedness secured (or that may be secured)
by each such Lien and the Property covered by each such Lien is
correctly described in Part B of Schedule I.
8.17 Capitalization. The authorized capital stock of
the Borrower will consist, on the Effective Date (after giving
effect to the transactions contemplated to occur on or before the
Effective Date), of an aggregate of 55,000,000 shares consisting
of (i) 50,000,000 shares of common stock, par value $0.01 per
share, of which, after giving effect to the transactions
contemplated to occur on the Effective Date, 13,680,100 shares
will be duly and validly issued and outstanding, each of which
shares will be fully paid and nonassessable and (ii) 5,000,000
shares of preferred stock, with terms to be established by the
board of trustees of the Borrower, of which, after giving effect
to the transactions contemplated to occur on the Effective Date,
no shares will be issued and outstanding. As of the Effective
Date (after giving effect to the transactions contemplated to
occur on or before the Effective Date and with the exception of
incentive stock options or other options granted or to be granted
to trustees, officers and employees of the Borrower), (x) there
will be no outstanding Equity Rights with respect to the Borrower
and (y) there will be no outstanding obligations of the Borrower
or any of its Subsidiaries to repurchase, redeem, or otherwise
acquire any shares of capital stock of the Borrower nor will
there be any outstanding obligations of the Borrower or any of
its Subsidiaries to make payments to any Person, such as "phantom
stock" payments, where the amount thereof is <PAGE> calculated with
reference to the fair market value or equity value of the
Borrower or any of its Subsidiaries. Lenders acknowledge that
cash bonuses payable to officers and employees of the Borrower,
while discretionary, may be influenced by such factors, among
others.
8.18 Subsidiaries, Etc.
(a) Subsidiaries. Set forth in Part A of Schedule III
is a complete and correct list of all of the Subsidiaries of the
Borrower as of the date hereof, and as of the Effective Date
(after giving effect to the transactions contemplated to occur on
or before the Effective Date), together with, for each such
Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding ownership interests in such
Subsidiary and (iii) the nature of the ownership interests held
by each such Person and the percentage of ownership of such
Subsidiary represented by such ownership interests. Except as
disclosed in Part A of Schedule III, (x) each of the Borrower and
its Subsidiaries owns, or will own on the Effective Date (after
giving effect to the transactions contemplated to occur on or
before the Effective Date), free and clear of Liens (other than
Permitted Liens), and has the unencumbered right to vote, all
outstanding ownership interests in each Person shown to be held
by it in Part A of Schedule III, (y) all of the issued and
outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and
(z) there are no outstanding Equity Rights with respect to such
Person not otherwise shown on Part A of Schedule III.
(b) Investments. Set forth in Schedule III is a
complete and correct list of all Investments (other than
Investments disclosed in Part A of Schedule III) held by the
Borrower or any of its Subsidiaries in any Person on the date
hereof or that will be held on the Effective Date (after giving
effect to the transactions contemplated to occur on or before the
Effective Date) and, for each such Investment, (x) the identity
of the Person or Persons holding such Investment and (y) the
nature of such Investment. Except as disclosed in Part B of
Schedule III, each of the Borrower and its Subsidiaries owns (or
will own, after giving effect to the transactions contemplated to
occur on or before the Effective Date), free and clear of all
Liens, all such Investments.
(c) Subsidiaries Not Subject to Certain Restrictions.
None of the Subsidiaries of the Borrower is, on the date hereof,
subject to any indenture, agreement, instrument or other
arrangement of the type described in Section 9.14.
8.19 REIT Status. The Borrower has not taken any
action that would prevent it from maintaining its qualification
as a REIT for its tax year ended December 31, 1997 or from
maintaining such qualification at all times during the term of
the Loans.
<PAGE>
8.20 Real Estate Investment Trust Structure. The
Borrower has heretofore delivered to the Administrative Agent
true and complete copies of its declaration of trust and by-laws.
8.21 Ground Leases. The Borrower has heretofore
delivered to the Administrative Agent a true and complete copy of
each Qualified Ground Lease which applies to any Borrowing Base
Property and such Qualified Ground Lease has not been further
amended, modified or terminated. Each Qualified Ground Lease is
in full force and effect and the Borrower is not in default
thereunder. To the best of the Borrower's knowledge, no ground
lessor under a Qualified Ground Lease is in default under any
material covenant or obligation set forth in any Qualified Ground
Lease.
8.22 Leases. Each Borrowing Base Property is subject
to a Qualified Lease. Each Qualified Lease (including, without
limitation, each applicable AMCE Guarantee or third party
guaranty) applicable to a Borrowing Base Property is in full
force and effect and there exists no default by the Borrower, or
to the best of the Borrower's knowledge, AMC, AMCE, any lessee
under a Qualified Third-Party Lease or any guarantor of a
Qualified Third-Party Lease in connection with their respective
obligations thereunder, nor any condition which, given notice or
the passage of time, or both, would constitute a default or event
of default by any of the Borrower, AMC, AMCE, any lessee under a
Qualified Third-Party Lease or any guarantor of a Qualified
Third-Party Lease, in connection with their respective
obligations thereunder. Neither AMC nor any lessee under a
Qualified Third-Party Lease has exercised any termination option
under an AMC Lease or a Qualified Third-Party Lease,
respectively.
8.23 Option Agreements and Right of First Refusal
Agreement. Each of the Option Agreements and the Right of First
Refusal Agreement is in full force and effect and there exists no
default by the Borrower, or to the best of the Borrower's
knowledge, AMCE, any of the AMCE Subsidiaries or CLIP in
connection with their respective obligations thereunder, nor any
condition which, given notice or the passage of time, or both,
would constitute a default or event of default by any of the
Borrower, AMCE, any of the AMCE Subsidiaries or CLIP in
connection with their respective obligations thereunder. The
Borrower has not assigned any of its rights or interest in either
the Option Agreements or the Right of First Refusal Agreement.
8.24 Defaults. There is no Default by any Obligor or,
to the best of the Borrower's knowledge, CLIP, AMC, AMCE or any
of their Affiliates under this Agreement or any of the other
Basic Documents.
<PAGE>
8.25 Absence of Liens. Except for Permitted Liens,
the Borrowing Base Properties are not subject to any Liens.
8.26 No Materially Adverse Contracts, Etc.. Except as
disclosed in the Prospectus, neither the Borrower nor any of its
Subsidiaries is subject to any declaration of trust, charter,
corporate, partnership or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is
reasonably expected in the future to have a Material Adverse
Effect on the respective businesses, assets or financial
conditions of the Borrower or any of its Subsidiaries. Neither
the Borrower nor any of its Subsidiaries is a party to any
contract or agreement that has or is expected, in the judgment of
their respective officers, to have any Material Adverse Effect on
the respective businesses of the Borrower or any of its
Subsidiaries.
8.27 Initial Public Offering Registration Statement.
(a) The Registration Statement has been declared effective
by the Commission. There has been delivered to the
Administrative Agent copies of the Registration Statement, as
amended, together with copies of each exhibit filed therewith.
(b) The Commission has not issued any order preventing or
suspending the use of the Prospectus, and the Prospectus has
conformed in all material respects to the requirements of the
1933 Act and the SEC Rules and Regulations; and, as of its
respective date, neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto, includes any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. Notwithstanding the
foregoing, any representation with respect to the truth, accuracy
or completeness of any information contained in the Registration
Statement concerning AMC or AMCE is limited to a representation
by the Borrower that it has received no information that would
lead it to believe that any of such information is false or
misleading in any material respect.
8.28 Year 2000 Issues. The Borrower has reviewed its
operations and those of its major commercial counterparties with
a view to assessing whether its business will, in the receipt,
transmission, processing, storage or other utilization of data,
be vulnerable to a significant risk that the hardware or software
used in its business will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates and time periods occurring
prior to December 31, 1999. The Borrower has no reason to
believe that a Material Adverse Effect with respect to it will
result from such a year 2000 problem.
<PAGE>
Section 9. Covenants of the Borrower. The Borrower
covenants and agrees with the Lenders and the Administrative
Agent that, so long as any Commitment, Loan or Letter of Credit
Liability is outstanding and until payment in full of all amounts
payable by the Borrower hereunder:
9.01 Financial Statements and Other Information. The
Borrower shall deliver to the Administrative Agent and each of
the Lenders:
(a) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower,
consolidated and consolidating statements of income,
retained earnings and cash flows of the Borrower and its
Subsidiaries for such fiscal year and the related
consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the
preceding fiscal year, and accompanied (i) in the case of
such consolidated statements and balance sheet of the
Borrower, by an opinion thereon of independent certified
public accountants of recognized national standing, which
opinion shall state that such consolidated financial
statements fairly present the consolidated financial
condition and results of operations of the Borrower and its
Subsidiaries as at the end of, and for, such fiscal year in
accordance with generally accepted accounting principles,
and a statement of such accountants to the effect that, in
making the examination necessary for their opinion, nothing
came to their attention that caused them to believe that the
Borrower was not in compliance with Section 9.10, insofar as
such Section relates to accounting matters, and (ii) in the
case of such consolidating statements and balance sheets, by
a certificate of a Financial Officer of the Borrower, which
certificate shall state that such consolidating financial
statements fairly present the respective individual
unconsolidated financial condition and results of operations
of the Borrower and of each of its Subsidiaries, in each
case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for,
such fiscal year;
(b) as soon as available and in any event within 45
days after the end of each quarterly fiscal period of each
fiscal year of the Borrower, unaudited consolidated and
consolidating statements of income, retained earnings and
cash flows of the Borrower and its Subsidiaries for such
period and for the period from the beginning of the
respective fiscal year to the end of such period, and the
related consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such period,
setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the
corresponding periods in the preceding fiscal year (except
that, in the case <PAGE> of balance sheets, such comparison shall
be to the last day of the prior fiscal year), accompanied by
a certificate of a Financial Officer of the Borrower, which
certificate shall state that such consolidated financial
statements fairly present the consolidated financial
condition and results of operations of the Borrower and its
Subsidiaries, and such consolidating financial statements
fairly present the respective individual unconsolidated
financial condition and results of operations of the
Borrower and of each of its Subsidiaries, in each case in
accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(c) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower,
statements of Net Operating Income and outstanding
Indebtedness as at the end of such fiscal year and for the
fiscal year then ended for the Borrower and each Real Estate
Property (including, without limitation, each Borrowing Base
Property), in each case certified by a Financial Officer as
true and correct in all material respects;
(d) as soon as available and in any event within 45
days after the end of each fiscal quarter of the Borrower,
unaudited statements of Net Operating Income and outstanding
Indebtedness as at the end of such fiscal quarter and for
the portion of the fiscal year then elapsed for the Borrower
and each Real Estate Property (including, without
limitation, each Borrowing Base Property), in each case
certified by a Financial Officer as true and correct in all
material respects;
(e) concurrently with any delivery of financial
statements under clause (a) or (b) of this Section 9.01, a
certificate of a Financial Officer of the Borrower (i) to
the effect that no Default has occurred and is continuing
(or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the
action that the Borrower has taken or proposes to take with
respect thereto) and (ii) setting forth in reasonable detail
the computations necessary to determine whether the Borrower
is in compliance with Sections 9.07, 9.08(f), 9.09, 9.10 and
9.22 as of the end of the respective quarterly fiscal period
or fiscal year;
(f) as soon as available and in any event within ten
(10) Business Days after the end of each monthly accounting
period (ending on the last day of each calendar month) of
the Borrower, a Borrowing Base Certificate as at the last
day of such accounting period;
(g) promptly upon their becoming available, copies of
all registration statements and regular periodic reports, if
any, that the Borrower shall have filed with the <PAGE> 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;
(h) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(i) contemporaneously with (or promptly after) the
filing or mailing thereof, copies of all material of a
financial nature sent to the holders of any Indebtedness of
the Borrower (other than the Loans) for borrowed money, to
the extent that the information or disclosure contained in
such material refers to or could reasonably be expected to
have a Material Adverse Effect;
(j) in the event that the Borrower becomes apprised
that the definition of FFO has been revised by the Board of
Governors of the National Association of Real Estate
Investment Trusts, a report, certified by a Financial
Officer, of the FFO of the Borrower based on the definition
as in effect on the date of this Agreement and based on the
definition as so revised;
(k) from time to time such other information regarding
the financial condition, operations, business or prospects
of the Borrower, any of its Subsidiaries, the Real Estate
Properties and any Partially-Owned Entity (including,
without limitation, any Plan or Multiemployer Plan and any
reports or other information required to be filed under
ERISA), or compliance with the terms of this Agreement and
the other Loan Documents, as any Lender or the
Administrative Agent may reasonably request; provided,
however, the Borrower's obligation to deliver any
information with respect to a lessee of any Real Estate
Property shall be limited to the information which the
Borrower or any other Obligor actually has in its
possession; and
(l) from time to time to the extent any of the
Borrower's Real Estate Properties leased to third parties
represents more than 10% of of Total Market Value of Real
Estate, such financial information with respect to such
lessee as any Lender or the Administrative Agent may
reasonably request.
<PAGE>
9.02 Notices of Material Events. The Borrower will
furnish the following to the Administrative Agent and each Lender
in writing:
(a) promptly after the Borrower knows or has reason to
believe that any Default has occurred, notice of such
Default;
(b) prompt notice of all legal or arbitral
proceedings, and of all proceedings by or before any
Governmental Authority or regulatory authority or agency,
and of any material development in respect of such legal or
other proceedings, affecting the Borrower, any of its
Subsidiaries or the Borrowing Base Properties, except
proceedings that, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse
Effect;
(c) as soon as possible, and in any event within ten
days after the Borrower knows or has reason to believe that
any ERISA Event has occurred or exists with respect to any
Plan of Borrower, notice of the occurrence of such ERISA
Event and a copy of any report or notice required to be
filed with or given to the PBGC by the Borrower or an ERISA
Affiliate with respect to such ERISA Event;
(d) prompt notice of (i) any Environmental Defect with
respect to a Borrowing Base Property, (ii) the assertion of
any Environmental Claim by any Person against, or with
respect to the activities of, the Borrower, any of its
Subsidiaries or any Real Estate Property and (iii) any
alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or
authorizations, other than, in the case of clause (ii) or
(iii), any Environmental Claim or alleged violation that, if
adversely determined, would not (either individually or in
the aggregate) have a Material Adverse Effect, including,
without limitation, copies of any related Environmental
Report;
(e) prompt notice of any Structural Defect which
constitutes a Disqualifying Condition, including, without
limitation, copies of any Engineering Reports related
thereto;
(f) prompt notice of any other development that
results in, or could reasonably be expected to result in, a
Material Adverse Effect; and
(g) notice of any acquisition of a Real Estate
Property by the Borrower or any of its Subsidiaries within
15 days after such acquisition; and, at the Administrative
Agent's or any Lender's request, the Borrower shall deliver
to the Administrative Agent and such <PAGE> requesting Lender, with
respect to such Real Estate Property, a brief description
and recent photograph, a rent roll summary, a pro forma and
historic (if available) income statement and a summary of
the key business terms of such acquisition.
Each notice delivered under this Section 9.02 shall be
accompanied by a statement of a Financial Officer or other
executive officer of the Borrower setting forth the details of
the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
9.03 Existence, REIT Status, Etc.
(a) The Borrower will, and will cause each of its
Subsidiaries to:
(i) preserve and maintain its legal existence and all
of its material rights, privileges, licenses and franchises
(provided that nothing in this Section 9.03 shall prohibit
any transaction expressly permitted under Section 9.05);
(ii) comply with the requirements of all applicable
laws, rules, regulations and orders of any Governmental
Authority or regulatory authorities if failure to comply
with such requirements could (either individually or in the
aggregate) have a Material Adverse Effect;
(iii) pay and discharge, or cause to be paid or
discharged, all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on
any of its Property prior to the date on which interest or
penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
provided that the Borrower shall pay all such taxes,
assessments, charges and levies being contested prior to the
consummation of any proceedings to foreclose any Lien that
may have attached as security therefor.
(iv) maintain, or cause to be maintained, all of its
Properties used or useful in its business in good working
order and condition, ordinary wear and tear excepted;
(v) keep adequate records and books of account, in
which complete entries will be made in accordance with
generally accepted accounting principles consistently
applied; and
<PAGE>
(vi) permit representatives of any Lender or the
Administrative Agent, during normal business hours, to
examine, copy and make extracts from its books and records,
to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative
Agent (as the case may be).
(b) The Borrower shall at all times maintain its
status as a REIT and not take any action which could lead to its
disqualification as a REIT.
(c) The Borrower shall at all times continue to be
listed on one of the major United States stock exchanges,
including, without limitation NASDAQ.
9.04 Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain insurance with insurance
companies rated A- or better, with respect to risks of a
character usually maintained by corporations engaged in the same
or similar business similarly situated, against loss, damage and
liability of the kinds and in the amounts customarily maintained
by such corporations. In addition, the Borrower shall maintain
or cause its tenants to maintain with respect to each Borrowing
Base Property the insurance at least equal to that specified in
the form of Qualified Lease attached as Exhibit E. The Borrower
shall, prior to the expiration of any insurance required
hereunder, deliver to the Administrative Agent certificates of
insurance evidencing the existence of all such insurance, such
certificates to be in form and substance reasonably satisfactory
to the Administrative Agent, it being agreed that such insurance
and certificates may be maintained by the tenant under its
applicable lease.
9.05 Prohibition of Fundamental Changes.
(a) The Borrower will not, nor will it permit any of
its Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution).
Notwithstanding the foregoing provisions of this Section 9.05:
(i) any Subsidiary of the Borrower may be merged or
consolidated with or into: (i) the Borrower if the Borrower
shall be the continuing or surviving entity or (ii) any
other such Subsidiary; provided that (A) if any such
transaction shall be between a Subsidiary and a Wholly Owned
Subsidiary, the Wholly Owned Subsidiary shall be the
continuing or surviving entity and (B) if any such
transaction shall be between a Subsidiary Guarantor and a
Subsidiary not a Subsidiary Guarantor, and such Subsidiary
Guarantor is not the continuing or surviving entity, then
the continuing or surviving entity shall have <PAGE> assumed all of
the obligations of such Subsidiary Guarantor hereunder and
under the other Loan Documents;
(ii) any Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its Property
(upon voluntary liquidation or otherwise) to the Borrower or
a Wholly Owned Subsidiary of the Borrower; provided that if
any such sale is by a Subsidiary Guarantor to a Subsidiary
of the Borrower not a Subsidiary Guarantor, then such
Subsidiary shall have assumed all of the obligations of such
Subsidiary Guarantor hereunder and under the other Loan
Documents; and
(iii) the Borrower or any Subsidiary of the Borrower
may merge or consolidate with any other Person in connection
with the acquisition of Real Estate Properties if (i) in the
case of a merger or consolidation of the Borrower, the
Borrower is the surviving entity and, in any other case, the
surviving entity is a Subsidiary of the Borrower and
(ii) after giving effect thereto no Default would exist
hereunder, provided that prior to such merger or
consolidation, the Borrower shall provide to the
Administrative Agent a certificate signed by a Financial
Officer setting forth in reasonable detail computations
evidencing compliance with the covenants contained in
Sections 9.08(f), 9.10 and 9.22, and certifying that no
Default has occurred and is continuing, or would occur and
be continuing after giving effect to such merger or
consolidation and all liabilities, fixed or contingent,
pursuant thereto.
(b) The Borrower will not, nor will it permit any of
its Subsidiaries to, dispose of any Real Estate Properties in any
single transaction having a sales price (net of any Indebtedness
secured by a Lien on such Real Estate Properties, if any) in
excess of $50,000,000 or grant a Lien to secure Indebtedness in
any single transaction in an amount in excess of $25,000,000
unless, in each such event, the Borrower has provided to the
Administrative Agent a certificate signed by a Financial Officer
setting forth in reasonable detail computations evidencing
compliance with the covenants contained in Sections 9.08(f), 9.10
and 9.22, and certifying that no Default has occurred and is
continuing, or would occur and be continuing after giving effect
to such proposed sale or Lien, taking into account any Loans to
be prepaid from the proceeds of such transaction.
9.06 Liens.
(a) The Borrower will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of the Borrowing Base Properties, whether now owned
or hereafter acquired, except the following (collectively,
"Permitted Liens"):
<PAGE>
(i) Liens imposed by any Governmental Authority for
taxes, assessments or charges not yet due or that are being
contested in good faith and by appropriate proceedings if,
unless the amount thereof is not material with respect to it
or its financial condition, adequate reserves with respect
thereto are maintained on the books of the Borrower or the
affected Subsidiaries, as the case may be, in accordance
with GAAP;
(ii) carriers', warehousemen's, mechanics' (other than
mechanic's liens shown in the title policies and title
reports listed on Schedule VIII, which shall be deemed
Permitted Liens), materialmen's, repairmen's or other like
Liens arising in the ordinary course of business that are
not overdue for a period of more than 60 days or that are
being contested in good faith and by appropriate proceedings
and Liens securing judgments but only to the extent for an
amount and for a period not resulting in an Event of Default
under clause (k) of Section 10;
(iii) pledges or deposits under worker's compensation,
unemployment insurance and other social security
legislation;
(iv) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(v) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Property or
minor imperfections in title thereto or other encumbrances
listed in title reports approved by the Administrative Agent
pursuant to Section 7.03 that, in the aggregate, are not
material in amount, and that do not in any case materially
detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(vi) Qualified Leases permitted under the terms of
this Agreement; and
(vii) Qualified Ground Leases permitted under the
terms of this Agreement.
(b) The Borrower will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its other Property, whether now owned or
hereafter acquired, which would cause a Default hereunder.
<PAGE>
9.07 Indebtedness. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur or suffer to
exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Recourse Indebtedness (including (i) dividends
declared but not yet paid, (ii) trade payables in the
ordinary course of business so long as such trade payables
are payable within 90 days after the date of the original
invoice and (iii) equipment leases having rental of no more
than $500,000 in the aggregate) which (i) is unsecured by a
Lien and (ii) does not otherwise cause a Default under the
terms of this Agreement; and
(c) Non-Recourse Indebtedness which does not otherwise
cause a Default under the terms of this Agreement.
Notwithstanding anything to the contrary contained herein, the
Borrower will not, nor will it permit any of its Subsidiaries to,
incur Indebtedness for borrowed money in any single transaction
which exceeds $10,000,000 unless, in each such event, the
Borrower has provided to the Administrative Agent a certificate
signed by a Financial Officer setting forth in reasonable detail
computations evidencing compliance with the covenants contained
in Sections 9.08(f), 9.10 and 9.22 and certifying that no Default
has occurred and is continuing, or would occur and be continuing
after giving effect to such Indebtedness.
9.08 Investments. The Borrower will not, nor will it
permit any of its Subsidiaries to, make or permit to remain
outstanding any Investments except:
(a) Investments outstanding on the date hereof and
identified in Part B of Schedule III;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Subsidiaries
in the Borrower and its Subsidiaries for Permitted Uses;
(e) Subject to the provisions of Section 9.22,
Investments in Real Estate Properties (including investments
in down REIT's);
<PAGE>
(f) Provided no Event of Default shall have occurred
and be continuing, Investments in connection with Mortgages,
provided that (A) no more than 25% of the aggregate fair
market value of the Obligors' Real Estate Properties and
Mortgages held by the Obligors may be leased to, or made by,
as applicable, the same Person (and such Person's
Affiliates) (other than AMC) and (B) such Investment does
not otherwise cause a Default hereunder; and
(g) Hedging Agreements required under Section 9.11.
9.09 Restricted Payments. The Borrower will not, nor
will it permit any of its Subsidiaries to, as determined on an
aggregate annual basis, declare or make any Restricted Payment
(a) in excess of (i) 95% of Funds Available for Distribution
during the first year of this Agreement or (ii) 90% of Funds
Available for Distribution in any year thereafter or (b) during
any period when an Event of Default shall have occurred and be
continuing; provided, however, that the Borrower may make
Restricted Payments during such period when an Event of Default
exists, or at any other time, to the extent required to maintain
its status as a REIT. Notwithstanding the foregoing sentence,
the Borrower's Subsidiaries may distribute up to 100% of FFO to
the Borrower (or a pro rata portion thereof based on the
Borrower's ownership interest in its respective Subsidiaries).
9.10 Certain Financial Covenants.
(a) Maximum Borrowing Base Leverage Ratio. As at the
end of any fiscal quarter or any other date of measurement, the
Borrower will not permit the Borrowing Base Leverage Ratio to
exceed 50% at any time.
(b) Maximum Total Leverage Ratio. As at the end of
each fiscal quarter, the Total Leverage Ratio shall not exceed
50%.
(c) Maximum Non-Recourse Secured Leverage Ratio. As
at the end of each fiscal quarter, the Non-Recourse Secured
Leverage Ratio shall not exceed 15% at any time.
(d) Minimum Unencumbered Total Asset Value Ratio. As
at the end of each fiscal quarter, the Unencumbered Total Asset
Value Ratio shall not be less than 2.00 to 1.
(e) Minimum Fixed Charges Ratio. As at the end of
each fiscal quarter, the Fixed Charges Ratio shall not be less
than 2.00 to 1.
<PAGE>
(f) Minimum Interest Coverage Ratio. As at the end of
each fiscal quarter, the Interest Coverage Ratio shall not be
less than 2.25 to 1.
(g) Minimum Tangible Net Worth. As at the end of each
fiscal quarter, the Borrower will not permit its Tangible Net
Worth to be less than the sum of (i) 90% of its Tangible Net
Worth as of the date of this Agreement plus (ii) 75% of the net
proceeds of future equity offerings of the Borrower and its
Subsidiaries.
(h) Maximum Non-Conforming Assets Ratio. The Borrower
will not permit the Non-Conforming Assets Ratio to exceed 10%.
(i) Total Market Value of Real Estate. The Total
Market Value of Real Estate which is attributable to Borrowing
Base Properties leased to AMC for use as megaplex theaters shall
not be less than 40% of the Total Market Value of Real Estate;
and the Total Market Value of Real Estate which is attributable
in the aggregate to (i) Borrowing Base Properties leased to AMC
for use as megaplex theaters and (ii) Borrowing Base Properties
leased to lessees for entertainment-related uses having a senior
subordinated credit rating (or having guarantors satisfying such
credit rating) equal to or better than B2/B from Moody's or the
equivalent for S&P, for senior subordinated notes shall not be
less than 50% of the Total Market Value of Real Estate.
(j) Development Costs. The aggregate amount of
Development Costs shall not exceed 10% of the Total Market Value
of Real Estate at any time.
(k) Undeveloped Land. The fair market value of Real
Estate Properties that constitute undeveloped land or non-revenue
producing pad sites shall not exceed an aggregate amount of
$20,000,000 at any time.
9.11 Hedging Agreements. The Borrower will from time
to time within ninety (90) days of the incurrence of any
Indebtedness by the Borrower or any of its Subsidiaries,
including, without limitation, any Loans under this Agreement
enter into, and thereafter maintain in full force and effect, one
or more Hedging Agreements with one or more of the Lenders
(and/or with a bank or other financial institution having
capital, surplus and undivided profits of at least $500,000,000),
that effectively enables the Borrower (in a form and manner
reasonably satisfactory to the Administrative Agent) to protect
itself against interest rates exceeding 11% per annum as to a
notional principal amount at least equal to fifty percent of the
then Total Indebtedness for a period through the Commitment
Termination Date so long as the weighted average lease rate of
all leases for which the Borrower is the lessor is equal to or
less than 13.5% <PAGE> per annum; provided, however, that if the
weighted average lease rate of all leases for which the Borrower
is the lessor is greater than 13.5% per annum, as demonstrated to
the Administrative Agent with a certificate certified by a
Financial Officer of the Borrower, the maximum interest rate that
the Borrower and its Subsidiaries may pay in subsequent interest
rate protection agreements will be the sum of (a) 11% per annum
and (b) the amount by which the weighted average lease rate of
all leases for which the Borrower is the lessor exceeds 13.5% per
annum; provided, further, however, that the maximum interest rate
payable with respect to Hedging Agreements may not exceed 15%.
9.12 Lines of Business. The Borrower will not, nor
will it permit any of its Subsidiaries to, engage to any
substantial extent in any line or lines of business activity
other than the businesses contemplated by the definition of
Permitted Uses and Investments permitted under Section 9.08.
9.13 Transactions with Affiliates. Except as
expressly permitted by this Agreement or as described in the
Prospectus, including the transactions with AMC and AMCE
described herein or therein, the Borrower will not, nor will it
permit any of its Subsidiaries to, directly or indirectly:
(a) make any Investment in an Affiliate; (b) transfer, sell,
lease, assign or otherwise dispose of any Property to an
Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other
transaction directly or indirectly with or for the benefit of an
Affiliate (including, without limitation, Guarantees and
assumptions of obligations of an Affiliate, but excluding
investments in Subsidiaries, acquisitions or dispositions of
Property from or to its Subsidiaries or the obligation of
Subsidiaries as lessors under Qualified Leases); provided that
(x) any Affiliate who is an individual may serve as a director,
trustee, officer or employee of the Borrower or any of its
Subsidiaries and receive reasonable compensation for his or her
services in such capacity and (y) the Borrower and its
Subsidiaries may enter into transactions (other than extensions
of credit by the Borrower or any of its Subsidiaries to an
Affiliate) providing for the purchase and/or leasing of Property,
the rendering or receipt of services or the purchase or sale of
inventory and other Property in the ordinary course of business
if the monetary or business consideration arising therefrom would
be substantially as advantageous to the Borrower and its
Subsidiaries as the monetary or business consideration that would
obtain in a comparable transaction with a Person not an
Affiliate.
9.14 Restrictive Agreements. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or
indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its
Properties, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its <PAGE> capital
stock or to make or repay loans or advances to the Borrower or
any other Subsidiary or to Guarantee Indebtedness of the Borrower
or any other Subsidiary; provided that (i) the foregoing shall
not apply to restrictions and conditions imposed by law or by
this Agreement, (ii) clause (a) of the foregoing shall not apply
to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets
securing such Indebtedness and (iii) clause (a) of the foregoing
shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
9.15 Use of Proceeds. The Borrower will use the
proceeds of the Loans hereunder solely for (a) working capital
purposes, (b) the acquisition, leasing, development and expansion
of Real Estate Properties for Permitted Uses (including, without
limitation, Development Costs; and such development and expansion
uses shall be deemed Development Costs and be subject to Section
9.10(j)), (c) to finance the payment of fees, expenses, and other
costs payable in connection with this Agreement, and (d)
Investments (including Mortgages) permitted under Section 9.08
and uses ancillary to any of the foregoing, all of the foregoing
subject, however, to the terms and conditions of this Agreement.
No part of the proceeds of any Loan will be used, directly or
indirectly, for any purpose that entails a violation of
Regulations G, T, U and X, the 1933 Act, the Securities Exchange
Act of 1934 or the SEC Rules and Regulations.
9.16 Ownership of Subsidiaries.
(a) Ownership of Subsidiaries. The Borrower will, and
will cause each of its Subsidiaries to, take such action from
time to time as shall be necessary to ensure that each of its
Subsidiaries remains a Subsidiary.
(b) Certain Restrictions. The Borrower will not
permit any of its Subsidiaries to enter into, after the date
hereof, any indenture, agreement, instrument or other arrangement
that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially
adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment
of dividends, the making of loans, advances or Investments or the
sale, assignment, transfer or other disposition of Property.
9.17 Modifications of Certain Documents. No Obligor
will consent to any modification, supplement or waiver of any of
the provisions of (a) any Basic Document or (b) its declaration
of trust, by-laws or other charter documents if, in the case of
this clause (b) such changes would adversely affect the
Borrower's REIT status or otherwise materially and adversely
affect any of the rights of the Administrative Agent and/or the
Lenders under any Loan <PAGE> Document, without, in the case of either
clause (a) or (b), the prior consent of the Administrative Agent
(with the authorization of the Majority Lenders) which shall not
be unreasonably withheld or delayed. The Borrower shall not
assign any of its rights or interest in any of the Option
Agreements or the Right of First Refusal Agreement.
9.18 Further Assurances. Each Obligor will cooperate
with the Administrative Agent and the Lenders and will execute
any and all further documents, agreements and instruments, and
take all such further actions which may be required under any
applicable law, or which either the Administrative Agent or the
Majority Lenders may reasonably request, to effectuate the
transactions contemplated by the Loan Documents.
9.19 Environmental Compliance.
(a) The Obligors covenant and agree that (i) the uses
and operations on or of the Real Estate Properties, shall be in
material compliance with all Environmental Laws and permits
issued pursuant thereto, (ii) they shall use diligent efforts to
enforce the provisions of each Qualified Lease relative to
compliance with all applicable Environmental Laws and permits and
(iii) in the event that any Hazardous Materials are present on,
under or emanate from the Real Estate Properties, or migrate onto
or into the Real Estate Properties, the Borrower shall, if
required by any Governmental Authority, cause (or use diligent
efforts to cause the lessee under any Qualified Lease to cause)
the Remediation of such Hazardous Materials, in accordance with
applicable Environmental Laws.
(b) If the Administrative Agent or any Lender has
reasonable grounds to believe that an Environmental Defect has
occurred with respect to any one or more of the Borrowing Base
Properties which would cost in excess of $1,000,000 to remediate,
whether or not a Default shall have occurred, the Administrative
Agent may, from time to time, for the purpose of assessing and
determining whether an Environmental Defect has in fact occurred,
cause the Borrower to obtain one or more environmental
assessments or audits of such Borrowing Base Property prepared by
a hydrogeologist, an independent engineer or other qualified
consultant or expert approved by the Administrative Agent to
(i) evaluate or confirm (A) whether any Hazardous Materials are
present in the soil or water at such Borrowing Base Property and
(B) whether the use and operation of such Borrowing Base Property
including, without limitation, any and all storage areas, storage
tanks, drains, dry wells and leaching areas, and (ii) if and to
the extent reasonable, appropriate and required pursuant to
applicable Environmental Laws, the taking of soil samples,
surface water samples and ground water samples, as well as such
other investigations or analyses as the Majority Lenders
reasonably deem appropriate. All such environmental assessments
shall be at the sole cost and expense of the Borrower.
<PAGE>
9.20 Qualified Ground Leases.
(a) The Obligors shall (i) pay or cause to be paid all
rents, additional rents and other sums required to be paid by any
Obligor, as tenant under and pursuant to the provisions of any
Qualified Ground Lease related to a Borrowing Base Property on or
before the date on which such rent or other charge becomes
overdue, (ii) diligently perform and observe all of the terms,
covenants and conditions of any such Qualified Ground Lease on
the part of any Obligor, as tenant thereunder, to be performed
and observed prior to the expiration of any applicable grace
period therein provided, (iii) promptly notify the Administrative
Agent of the giving of any notice by the landlord under any such
Qualified Ground Lease to any Obligor of any default by such
Obligor, as tenant thereunder, to be performed or observed and
promptly deliver to the Administrative Agent a true copy of each
such notice, (iv) take all necessary action to prevent the
termination of any such Qualified Ground Lease and (v) enforce
each material covenant or obligation of any such Qualified Ground
Lease in accordance with its terms.
(b) The Obligors shall not surrender the leasehold
estate created by any Qualified Ground Lease relating to a
Borrowing Base Property, or terminate or cancel such Qualified
Ground Lease. The Obligors shall not, without the prior written
consent of the Majority Lenders modify, change, supplement, alter
or amend any such Qualified Ground Lease, in any respect, either
orally or in writing, in any manner; provided, however, the
Lenders shall not unreasonably withhold or delay their consent to
any proposed modification, change, supplementation, alteration or
amendment provided same does not in any manner adversely affect
the Lenders or in any manner adversely impair the collateral
value of the leasehold created by such Qualified Ground Lease.
9.21 Qualified Leases.
(a) Each Obligor shall (i) promptly perform and
fulfill, or cause to be performed and fulfilled, each and every
material term and provision of such Obligor's obligations under
any Qualified Lease relating to a Borrowing Base Property, (ii)
give to the Administrative Agent a duplicate notice of default of
each default by any lessee under any such Qualified Lease, (iii)
cause each Qualified Lease executed after the date hereof to
require the lessee thereunder to agree to give to the
Administrative Agent written notice of each and every notice of
default given by such lessee to such Obligor under its respective
Qualified Lease and (iv) enforce each material covenant or
obligation of any such Qualified Lease in accordance with its
terms.
(b) The Obligors shall not (i) amend, extend, cancel,
abridge, or otherwise modify, or accept surrender of, or renew,
any Qualified Lease relating to a Borrowing Base Property, now
<PAGE>
existing or hereafter made, in such a manner as to cause same to
be materially changed from the terms and conditions contained in
Exhibit E without the consent of the Majority Lenders, which
consent shall not be unreasonably withheld or delayed, (ii)
assign, transfer, pledge, subordinate or mortgage any such
Qualified Lease or any rent due thereunder, (iii) waive, excuse,
release or condone any nonperformance of any covenant of any such
Qualified Lease by any lessee thereunder or (iv) release any
guarantor from its obligations under any guaranty of any such
Qualified Lease; provided, however, clause (iv) shall apply to
Qualified Third Party Leases only to the extent clause (c) of the
definition of Qualified Third Party Lease is applicable.
9.22 Real Estate Properties. Provided no Event of
Default shall have occurred and be continuing, the Borrower may
invest in connection with the acquisition, development and
leasing of Real Estate Properties (including, without limitation,
interests in Partially-Owned Entities), provided that (a) no more
than 25% of the aggregate fair market value of the Obligors' Real
Estate Properties and Mortgages held by the Obligors may be
leased to or made by, as applicable, the same Person (other than
AMC) or its Affiliates, (b) the population density with respect
to such Real Estate Property shall not be less than 10,000 people
per statistical metropolitan sampling area for each screen
located at such Real Estate Property and (c) such investment does
not otherwise cause a Default hereunder.
9.23 Borrowing Base Properties; Additional Subsidiary
Guarantors.
(a) If after the Effective Date, the Borrower desires
to designate as a Borrowing Base Property a Real Estate Property
that is owned by a Subsidiary, the Borrower shall, prior to such
Real Estate Property becoming a Borrowing Base Property, comply
(i) with the requirements of Section 7.03 and (ii) cause such
Subsidiary to:
(A) become a "Subsidiary Guarantor" hereunder pursuant
to a Guarantee Assumption Agreement, and
(ii) deliver such proof of corporate action (or
equivalent organizational action), incumbency of officers,
opinions of counsel and other documents as is required
pursuant to Section 7.03.
(b) At any time and from time to time, but only for so
long as no Default shall then exist, the Borrower may notify the
Administrative Agent (each, a "Removal Notice") that one (1) or
more Borrowing Base Properties are to be removed from the
Borrowing Base. Such Removal Notice shall be given to the
Administrative Agent at least seven (7) Business Days prior to
the proposed removal date contained in the Release Notice and
shall be accompanied by a <PAGE> Borrowing Base Certificate (completed
and signed by a Financial Officer) evidencing the Borrower's
continuing compliance with the provisions set forth in Sections
9.08(f), 9.10 and 9.22 after giving effect to the proposed
release of the applicable Borrowing Base Properties. Upon the
Borrower's compliance with the foregoing, (i) such Borrowing Base
Properties (each, a "Removed Property") shall be removed from the
Borrowing Base on the scheduled removal date contained in the
Removal Notice and (ii) any Subsidiary Guarantor which was the
owner or ground lessee of a Removed Property shall be released
from its obligations under this Agreement; provided, however,
that any such release of a Subsidiary Guarantor shall only be
effective as to Guaranteed Obligations arising after the
applicable removal date.
Section 10. Events of Default. If one or more of the
following events (herein called "Events of Default") shall occur
and be continuing:
(a) the Borrower shall default in the payment of any
principal of any Loan or any Reimbursement Obligation when
due (whether at stated maturity or at mandatory or optional
prepayment); or
(b) the Borrower shall default in the payment of any
interest on any Loan, any fee or any other amount (other
than an amount referred to in clause (a) of this Section 10)
payable by it hereunder or under any other Loan Document
when due and such default shall have continued unremedied
for more than 5 Business Days (but not beyond the Commitment
Termination Date); or
(c) any representation, warranty or certification made
or deemed made herein or in any other Loan Document (or in
any modification or supplement hereto or thereto) by the
Borrower or any of its Subsidiaries, or any certificate
furnished by any Obligor, AMC or AMCE to any Lender or the
Administrative Agent pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of
the time made or furnished in any material respect; or
(d) any Obligor shall default in the performance of
any of its obligations under any of Sections 9.01(f), 9.02,
9.03 (as to its legal existence and REIT status), 9.04,
9.05, 9.06, 9.07, 9.08, 9.09, 9.10, 9.11, 9.12, 9.13, 9.14,
9.15, 9.16, 9.17, 9.20(b), 9.21(b) or 9.22; or
(e) any Obligor shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b) or (d) of
this Section 10) or any other Loan Document and such failure
shall continue <PAGE> unremedied for a period of 30 or more days
after notice thereof to the Borrower by the Administrative
Agent or any Lender (through the Administrative Agent); or
(f) the Borrower or any of its Subsidiaries shall
default in the payment when due of any principal of or
interest on any of its other Indebtedness aggregating
$2,500,000 or more; or the Borrower or any of its
Subsidiaries shall default in the payment when due of any
amount aggregating $2,500,000 or more under any Hedging
Agreement and, in either case, shall not have cured such
default within the applicable grace period; or
(g) any event specified in any note, agreement,
indenture or other document evidencing or relating to any
other Indebtedness aggregating $2,500,000 or more of the
Borrower or any of its Subsidiaries shall occur if the
effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit the holder or
holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, such
Indebtedness to become due, or to require that it be prepaid
in full (whether by redemption, purchase, offer to purchase
or otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities
evidencing such Indebtedness trade at a higher level; or any
event specified in any Hedging Agreement shall occur if the
effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit, termination
or liquidation payment or payments aggregating $2,500,000 or
more to become due; or
(h) a proceeding or case shall be commenced, without
the application or consent of the Borrower or its affected
Subsidiary, in any court of competent jurisdiction, seeking
(i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the
like of the Borrower or such Subsidiary or of all or any
substantial part of its Property, or (iii) similar relief in
respect of the Borrower or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in
effect, for a period of 60 or more days; or an order for
relief against the Borrower or any of its Subsidiaries shall
be entered in an involuntary case under the Bankruptcy Code;
or
(i) the Borrower or any of its Subsidiaries shall
(i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general <PAGE> assignment for the
benefit of its creditors, (iii) commence a voluntary case
under the Bankruptcy Code, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code
or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(j) the Borrower or any of its Subsidiaries shall
admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(k) a final judgment or judgments for the payment of
money of $2,500,000 or more in the aggregate (exclusive of
judgment amounts covered by insurance where the insurer has
admitted or failed to deny liability in respect of such
judgment) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction
against the Borrower or any of its Subsidiaries and the same
shall not be discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof or
the Borrower or the relevant Subsidiary shall not, within
such period of 30 days, or such longer period during which
execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed
during such appeal; or
(l) an event or condition shall occur or exist with
respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such
events or conditions, the Borrower or any ERISA Affiliate
shall incur or in the opinion of the Majority Lenders shall
be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the
foregoing) that, in the determination of the Majority
Lenders, would (either individually or in the aggregate)
have a Material Adverse Effect; or
(m) there shall have been asserted against the
Borrower or any of its Subsidiaries an Environmental Claim
that, in the judgment of the Majority Lenders, is reasonably
likely to be determined adversely to the Borrower or any of
its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to
have a Material Adverse Effect (insofar as such amount is
payable by the Borrower or any of its Subsidiaries but after
deducting any portion thereof that is reasonably expected to
be covered by insurance or paid by other creditworthy
Persons jointly and severally liable therefor); or
<PAGE>
(n) subject to the Borrower's right to remove Real
Estate Properties from the Borrowing Base in accordance with
the provisions set forth below in this Section 10, the
failure of any of the Real Estate Properties being included
as Borrowing Base Properties to comply with any of the
conditions set forth in the definition of Borrowing Base
Properties; or
(o) a Change in Control of any Obligor shall occur; or
(p) an AMC Change in Control or AMCE Change in
Control shall occur.
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (h) or (i) of this Section 10 with respect
to any Obligor, the Administrative Agent may, and upon the
request and authorization of the Majority Lenders shall with the
approval of the Majority Lenders, by notice to the Borrower,
terminate the Commitments and/or declare the principal amount
then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the
Obligors hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 or 5.06) to be
forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest
or other formalities of any kind, all of which are hereby
expressly waived by each Obligor; and (2) in the case of the
occurrence of an Event of Default referred to in clause (h)
or (i) of this Section 10 with respect to any Obligor, the
Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the
Loans, the Reimbursement Obligations and all other amounts
payable by the Obligors hereunder and under the Notes (including,
without limitation, any amounts payable under Section 5.05
or 5.06) shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the
continuance of any Event of Default (if the Administrative Agent
has declared the principal amount then outstanding of, and
accrued interest on, the Loans and all other amounts payable by
the Borrower hereunder and under the Notes to be due and
payable), the Borrower agrees that it shall, if requested by the
Administrative Agent or the Majority Lenders through the
Administrative Agent (and, in the case of any Event of Default
referred to in clause (h) or (i) of this Section 10 with respect
to the Borrower, forthwith, without any demand or the taking of
any other action by the Administrative Agent or such Lenders)
provide cover for the Letter of Credit Liabilities by paying to
the Administrative Agent immediately available funds in an amount
equal to the then aggregate undrawn face amount of all Letters of
Credit outstanding, which funds shall be held by the
Administrative Agent as collateral security for the prompt
payment in full when due of the Letter <PAGE> of Credit Liabilities, and
the Borrower hereby grants to the Administrative Agent for the
benefit of the Lenders a security interest in any funds so paid.
Notwithstanding anything to the contrary contained in
this Section 10, in the event (A) a Default or an Event of
Default arises as a result of the inclusion of any Real Estate
Property in the Borrowing Base at any particular time of
reference and (B) such Default or Event of Default is capable of
being cured by the exclusion of such Real Estate Property from
the Borrowing Base, the Borrower shall be permitted a period not
to exceed 30 days to remove such Real Estate Property from the
Borrowing Base by (1) if necessary to remain in compliance with
the terms of this Agreement, simultaneously substituting one or
more additional Eligible Properties for inclusion in the
Borrowing Base (subject to the Borrower's compliance with Section
7.03, but with the 10 Business Day notice requirement thereunder
waived) and (2) submitting to the Administrative Agent a
certificate from a Financial Officer, in form and substance
satisfactory to the Administrative Agent, evidencing compliance
with all of the covenants set forth in Sections 9.08(f), 9.10 and
9.22 (in each case, after excluding the Real Estate Property
causing such Default or Event of Default from such calculations
related to the Borrowing Base and, if necessary including any
substitute Eligible Property), and otherwise certifying that,
after giving effect to the exclusion of such Real Estate Property
(and if applicable, the addition of a substitute Eligible
Property) from the Borrowing Base, no Default or Event of Default
will be continuing.
Section 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities. Each Lender
hereby appoints and authorizes the Administrative Agent to act as
its agent hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent
by the terms of this Agreement and of the other Loan Documents,
together with such other powers as are reasonably incidental
thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of
Section 11.06 shall include reference to its affiliates and its
own and its affiliates' officers, directors, employees and
agents):
(a) shall have no duties or responsibilities except
those expressly set forth in this Agreement and in the other
Loan Documents, and shall not by reason of this Agreement or
any other Loan Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any
recitals, statements, representations or warranties
contained in this Agreement or in any other Loan Document,
or in any certificate or other document referred to or
provided for in, or received by any of <PAGE> them under, this
Agreement or any other Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, any Note or any other Loan
Document or any other document referred to or provided for
herein or therein or for any failure by the Borrower or any
other Person to perform any of its obligations hereunder or
thereunder; and
(c) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other Loan
Document or under any other document or instrument referred
to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence
or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of
any such agents or attorneys-in-fact selected by it in good
faith. The Administrative Agent may deem and treat the payee of
a Note as the holder thereof for all purposes hereof unless and
until a notice of the assignment or transfer thereof shall have
been filed with the Administrative Agent, together with the
consent of the Borrower to such assignment or transfer (to the
extent required by Section 12.06(b)).
11.02 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including, without
limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in
accordance with instructions given by the Majority Lenders, and
such instructions of the Majority Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the
Lenders.
11.03 Defaults. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default
unless the Administrative Agent has received notice from a
Lender, the Borrower or a third party specifying such Default and
stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Section 11.07) take such action with respect to
such Default as shall be directed by the Majority Lenders,
provided that, unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such <PAGE> Default as it shall deem
advisable in the best interest of the Lenders except to the
extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the
authorization of the Majority Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its
Commitment and the Loans made by it, BNY (and any successor
acting as Administrative Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. BNY (and
any successor acting as Administrative Agent) and its affiliates
may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the
Obligors (and any of their Subsidiaries or Affiliates) as if it
were not acting as the Administrative Agent, and BNY and its
affiliates (and any such successor) and its affiliates may accept
fees and other consideration from the Obligors for services in
connection with this Agreement or otherwise without having to
account for the same to the Lenders.
11.05 Indemnification. In performing its duties under
the Loan Documents, the Administrative Agent will exercise the
same degree of care as it normally exercises in connection with
similar loans in which no syndication or participations are
involved. The Lenders agree to indemnify the Administrative
Agent (to the extent not reimbursed under Section 12.04, but
without limiting the obligations of the Borrower under
Section 12.04) ratably in accordance with the aggregate principal
amount of the Loans and Reimbursement Obligations held by the
Lenders (or, if no Loans or Reimbursement Obligations are at the
time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative
Agent (including by any Lender) arising out of or by reason of
any investigation in or in any way relating to or arising out of
this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without
limitation, the costs and expenses that the Borrower is obligated
to pay under Section 12.04, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties
hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to
be indemnified. If any Lenders have indemnified the
Administrative Agent pursuant to this Section 11.05 and the
Administrative Agent shall thereafter be reimbursed by the
Borrower pursuant to Section 12.04 for the same matters, the
<PAGE>
Administrative Agent shall pay such additional reimbursement to
such Lenders ratably in accordance with the aggregate principal
amount of the Loans and Reimbursement Obligations held by such
Lenders (or, if no Loans or Reimbursement Obligations are at the
time outstanding, ratably in accordance with their respective
Commitments).
11.06 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender agrees that it has, independently and
without reliance on the Administrative Agent or any other Lender,
and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its
Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking
or not taking action under this Agreement or under any other Loan
Document. The Administrative Agent shall not be required to keep
itself informed as to the performance or observance by any
Obligor of this Agreement or any of the other Loan Documents or
any other document referred to or provided for herein or therein
or to inspect the Properties or books of the Borrower or any of
its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates)
that may come into the possession of the Administrative Agent or
any of its affiliates.
11.07 Failure to Act. Except for action expressly
required of the Administrative Agent hereunder and under the
other Loan Documents, the Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification
obligations under Section 11.05 against any and all liability and
expense that may be incurred by it by reason of taking or
continuing to take any such action.
11.08 Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent
may resign at any time by giving notice thereof to the Lenders
and the Borrower. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, that shall be
a bank that has an <PAGE> office in New York, New York with a combined
capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of
this Section 11 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 the Administrative Agent.
Section 12. Miscellaneous.
12.01 Notices. All notices, requests and other
communications provided for herein (including, without
limitation, any modifications of, or waivers or consents under,
this Agreement) shall be given or made in writing (including,
without limitation, by telecopy), delivered to the intended
recipient at the "Address for Notices" specified below its name
on the signature pages hereof (below the name of the Borrower, in
the case of any Subsidiary Guarantor); or, as to any party, at
such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered
or, in the case of a mailed notice, upon receipt, in each case
given or addressed as aforesaid.
12.02 Waiver. No failure on the part of the
Administrative Agent or any Lender to exercise and no delay in
exercising, and no course of dealing with respect to, any right,
power or privilege under this Agreement or any Note shall operate
as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided
by law.
12.03 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may
be modified or supplemented only by an instrument in writing
signed by the Borrower and the Majority Lenders, or by the
Borrower and the Administrative Agent acting with the consent of
the Majority Lenders, and any provision of this Agreement may be
waived by the Majority Lenders or by the Administrative Agent
acting with the consent of the Majority Lenders; provided that:
(a) no modification, supplement or <PAGE> waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative
Agent acting with the consent of all of the Lenders:
(i) increase, or extend the term of the Commitments, or extend
the time or waive any requirement for the reduction or
termination of the Commitments, (ii) extend the date fixed for
the payment of principal of or interest on any Loan, the
Reimbursement Obligations or any fee hereunder, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon or any fee is payable
hereunder, (v) alter the rights or obligations of the Borrower to
prepay Loans, (vi) alter the manner in which payments or
prepayments of principal, interest or other amounts hereunder
shall be applied as between the Lenders or Types of Loans,
(vii) alter the terms of this Section 12.03, (viii) modify the
definition of the term "Majority Lenders", or modify in any other
manner the number or percentage of the Lenders required to make
any determinations or waive any rights hereunder or to modify any
provision hereof, (ix) except as provided in Section 9.23,
release any Subsidiary Guarantor from any of its guarantee
obligations under Section 6, or (x) waive any of the conditions
precedent set forth in Section 7.01; and (b) any modification or
supplement of Section 11, or of any of the rights or duties of
the Administrative Agent hereunder, shall require the consent of
the Administrative Agent.
12.04 Expenses, Etc. The Borrower agrees to pay or
reimburse each of the Lenders and the Administrative Agent for:
(a) all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy,
special New York counsel to BNY) in connection with (i) the
negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents and the extension of
credit hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this
Agreement or any of the other Loan Documents (whether or not
consummated); (b) all reasonable out-of-pocket costs and expenses
of the Lenders and the Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection
proceedings resulting therefrom, including, without limitation,
all manner of participation in or other involvement with
(x) bankruptcy, insolvency, receivership, foreclosure, winding up
or liquidation proceedings, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 12.04; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied
by any Governmental Authority in respect of this Agreement or any
of the other Loan Documents or any other document referred to
herein or therein.
The Borrower hereby agrees to indemnify the Indemnified
Parties from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred <PAGE> by any
of them (including, without limitation, any and all losses,
liabilities, claims, damages or expenses incurred by the
Administrative Agent to any Lender, whether or not the
Administrative Agent or any Lender is a party thereto) arising
out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation
or other proceedings) relating to the extensions of credit
hereunder or any actual or proposed use by the Borrower or any of
its Subsidiaries of the proceeds of any of the extensions of
credit hereunder, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified or such Indemnified
Party's material breach of this Agreement, or claims against such
Indemnified Party arising from its own acts or omissions to the
extent wholly unrelated to this Agreement). Without limiting the
generality of the foregoing, the Borrower will indemnify the
Indemnified Parties, and hold the Indemnified Parties harmless
against, any losses, liabilities, claims, damages or expenses
described in the preceding sentence (but excluding, as provided
in the preceding sentence, any loss, liability, claim, damage or
expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified or such Indemnified
Party's material breach of this Agreement, or claims against such
Indemnified Party arising from its own acts or omissions to the
extent wholly unrelated to this Agreement) arising under any
Environmental Law as a result of the past, present or future
operations of the Borrower or any of its Subsidiaries, or the
past, present or future condition of any site or facility owned,
operated or leased at any time by the Borrower or any of its
Subsidiaries, or any Release or threatened Release of any
Hazardous Materials at or from any such site or facility,
excluding any such Release or threatened Release that shall occur
during any period when the Administrative Agent or any Lender
shall be in possession of any such site or facility following the
exercise by the Administrative Agent or any Lender of any of its
rights and remedies hereunder, but including any such Release or
threatened Release occurring during such period that is a
continuation of conditions previously in existence, or of
practices employed by the Borrower and its Subsidiaries, at such
site or facility.
12.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
12.06 Assignments and Participations.
(a) Consent Required for Assignments by the Obligors.
Except for an assignment to the Borrower, no Obligor may assign
any of its rights or obligations hereunder or under the Notes
without the prior consent of all of the Lenders; provided,
however, any such assignment by <PAGE> an Obligor to the Borrower shall
not release such Obligor from any obligations under this
Agreement which accrued prior to such assignment.
(b) Assignments by the Lenders. Each Lender may
assign any of its Loans, its Note, its Commitment and its Letter
of Credit Interest (but only with the consent of, in the case of
an outstanding Commitment, the Borrower and the Administrative
Agent and, in the case of a Commitment or a Letter of Credit
Interest, the Issuing Lender, such consents not to be
unreasonably withheld or delayed); provided that
(i) no such consent by the Borrower or the
Administrative Agent shall be required in the case of any
assignment to another Lender or to an Affiliate of a Lender;
(ii) except to the extent the Borrower and the
Administrative Agent shall otherwise consent, any such
partial assignment (other than to another Lender) shall be
in an amount at least equal to the lesser or (A) $5,000,000
or (B) the then aggregate remaining balance of such Lender's
Loans, Note, Commitment and Letter of Credit Interest; and
(iii) each such assignment by a Lender of its Loans,
Note, Commitment or Letter of Credit Interest shall be made
in such manner so that the same portion of its Loans, Note,
Commitment and Letter of Credit Interest is assigned to the
respective assignee.
Notwithstanding anything to the contrary contained in this
paragraph, any consent of the Borrower otherwise required under
this paragraph (b) shall not be required if an Event of Default
has occurred and is continuing. Upon execution and delivery by
the assignee to the Borrower, the Administrative Agent and the
Issuing Lender of an Assignment and Acceptance pursuant to which
such assignee agrees to become a "Lender" hereunder (if not
already a Lender) having the Commitment, Loans and, if
applicable, Letter of Credit Interest specified in such
instrument, and upon consent thereto by the Borrower, the
Administrative Agent and the Issuing Lender to the extent
required above, the assignee shall have, to the extent of such
assignment (unless otherwise consented to by the Borrower, the
Administrative Agent and the Issuing Lender), the obligations,
rights and benefits of a Lender hereunder holding the Commitment,
Loans and, if applicable, Letter of Credit Interest (or portions
thereof) assigned to it (in addition to the Commitment, Loans and
Letter of Credit Interest, if any, theretofore held by such
assignee) and the assigning Lender shall, to the extent of such
assignment, be released from the Commitment (or portion thereof)
so assigned. Upon each such assignment the assigning Lender or
its assignee shall pay the Administrative Agent an assignment fee
of $3,500.
<PAGE>
(c) Participations. A Lender may sell or agree to
sell to one or more other Persons (each a "Participant") a
participation in all or any part of any Loans or Letter of Credit
Interest held by it, or in its Commitment, provided that such
Participant shall not have any rights or obligations under this
Agreement or any Note or any other Loan Document (the
Participant's rights against such Lender in respect of such
participation to be those set forth in the agreements executed by
such Lender in favor of the Participant). All amounts payable by
the Borrower to any Lender under Section 5 in respect of Loans
and Letter of Credit Interest held by it and its Commitment shall
be determined as if such Lender had not sold or agreed to sell
any participations in such Loans, Letter of Credit Interest and
Commitment, and as if such Lender were funding each of such
Loans, Letter of Credit Interest and Commitment in the same way
that it is funding the portion of such Loans, Letter of Credit
Interest and Commitment in which no participations have been
sold. In no event shall a Lender that sells a participation
agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that
such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase or
extend the term of such Lender's Commitment, (ii) extend the date
fixed for the payment of principal of or interest on the related
Loan or Loans, Reimbursement Obligations or any portion of any
fee hereunder payable to the Participant, (iii) reduce the amount
of any such payment of principal, (iv) reduce the rate at which
interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee or (v) consent to any
modification, supplement or waiver hereof or of any of the other
Loan Documents to the extent that the same, under Section 12.03,
requires the consent of each Lender.
(d) Pledges. In addition to the assignments and
participations permitted under the foregoing provisions of this
Section 12.06, any Lender may (without notice to the Borrower,
the Administrative Agent or any other Lender and without payment
of any fee) assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank, and such Loans and Note shall be fully
transferable as provided therein. No such assignment shall
release the assigning Lender from its obligations hereunder.
(e) Provision of Information to Assignees and
Participants. A Lender may furnish any information concerning
the Borrower or any of its Subsidiaries in the possession of such
Lender from time to time to assignees and participants (including
prospective assignees and participants),subject, however, to the
provisions of Section 12.12(b) hereof.
(f) No Assignments to the Borrower or Affiliates.
Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or
<PAGE>
Reimbursement Obligation held by it hereunder to the Borrower or
any of its Affiliates or Subsidiaries without the prior consent
of each Lender.
12.07 Survival. The obligations of the Borrower under
Sections 5.01, 5.05, 5.06, 5.07 and 12.04, the obligations of
each Subsidiary Guarantor under Section 6.03, and the obligations
of the Lenders under Section 11.05, shall survive the repayment
of the Loans and Reimbursement Obligations, the expiration or
termination of the Commitments and the termination of this
Agreement or any provision hereof and, in the case of any Lender
that may assign any interest in its Commitment, Loans or Letter
of Credit Interest hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and
warranty made, or deemed to be made by a notice of any extension
of credit (whether by means of a Loan or a Letter of Credit),
herein or pursuant hereto shall survive the making of such
representation and warranty until the Commitment Termination
Date, and no Lender shall be deemed to have waived, by reason of
making any extension of credit hereunder (whether by means of a
Loan or a Letter of Credit), any Default that may arise by reason
of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender or the
Administrative Agent may have had notice or knowledge or reason
to believe that such representation or warranty was false or
misleading at the time such extension of credit was made.
12.08 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
12.09 Governing Law; Submission to Jurisdiction.
(a) Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the law of the
State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be <PAGE> conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement
against such Obligor or its properties in the courts of any
jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably
and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any
court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided
for notices in Section 12.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
12.10 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.11 Captions. The table of contents and captions
and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
12.12 Treatment of Certain Information;
Confidentiality.
(a) The Borrower acknowledges that from time to time
financial advisory, investment banking and other services may be
offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by
any Lender or by one or more subsidiaries or affiliates of such
Lender and the Borrower hereby authorizes each Lender to share
any information delivered to such Lender by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any
such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound
by the provisions of paragraph (b) below as if it <PAGE> were a Lender
hereunder. Such authorization and binding effect shall survive
the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees
(on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable
precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of the
same nature and in accordance with safe and sound banking
practices and shall not use same for any purpose other than in
connection with this Agreement or as permitted in Section
12.12(a) or below, any non-public information supplied to it by
the Borrower pursuant to this Agreement, provided that nothing
herein shall limit the disclosure of any such information (i)
after such information shall have become public (other than
through a violation of this Section 12.12), (ii) to the extent
required by statute, rule, regulation or judicial process,
(iii) to counsel for any of the Lenders or the Administrative
Agent, (iv) to bank examiners (or any other regulatory authority
having jurisdiction over any Lender or the Administrative Agent),
or to auditors or accountants, (v) to the Administrative Agent or
any other Lender, (vi) in connection with any litigation to which
any one or more of the Lenders or the Administrative Agent is a
party, or in connection with the enforcement of rights or
remedies hereunder or under any other Loan Document, (vii) to a
subsidiary or affiliate of such Lender as provided in
paragraph (a) above or (viii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first
executes and delivers to the respective Lender an acknowledgement
to the effect that it is bound by the provisions of this
Section 12.12(b), which acknowledgement may be included as part
of the respective assignment or participation agreement pursuant
to which such assignee or participant acquires an interest in the
Loans or Letter of Credit Interest hereunder). The obligations
of each Lender under this Section 12.12 shall supersede and
replace the obligations of such Lender under any confidentiality
agreement in respect of this financing signed and delivered by
such Lender to the Borrower prior to the date hereof; and in
addition, the obligations of any assignee that has executed an
acknowledgement of this Section 12.12 as required above shall be
superseded by this Section 12.12 upon the date upon which such
assignee becomes a Lender hereunder pursuant to Section 12.06(b)
hereof. The foregoing covenants may be enforced by Borrower by
obtaining injunctive or specific relief from a court of competent
jurisdiction, without the necessity of posting bond or proving
lack of adequate remedy at law, such remedies to be cumulative
and not exclusive of any other remedies available to Borrower at
law or in equity.
12.13 Co-Arrangers. The Syndication Agents and the
Documentation Agents shall have the rights, obligations and
liabilities of Lenders only under this Agreement and no other
rights, obligations or liabilities. Each Lender shall, ratably
in accordance with its Commitments, indemnify the Syndication
Agents and the Documentation Agents, their affiliates and their
<PAGE>
respective directors, officers and agents and employees (to the
extent not reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements), claim,
demand, action, loss or liabilities (except such as result from
such indemnitee's gross negligence or willful misconduct) that
such indemnitees may suffer or incur but solely in connection
with any such claim that may result pursuant to the Syndication
Agents and the Documentation Agents acting in their respective
capacities as Syndication Agents and the Documentation Agents
under this Agreement.
12.14 Interest Rate Limitation. Notwithstanding
anything herein to the contrary, 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 12.14 shall
be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not
above 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.
12.15 Construction of Documents. The parties hereto
acknowledge that they were represented by counsel in connection
with the negotiation and drafting of the loan Documents and that
the loan Documents shall not be subject to the principle of
construing their meaning against the party which drafted same.
[Signature pages follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
ENTERTAINMENT PROPERTIES TRUST
By_________________________
Name:
Title:
Address for Notices:
One Kansas City Place
1200 Main Street
Suite 3250
Kansas City, Missouri 64105
Attention: David Brain
Telecopier No.: (816) 472-5794
Telephone No.: (816) 472-1700
<PAGE>
SUBSIDIARY GUARANTORS
EPT DOWNREIT, INC.
By_________________________
Name:
Title:
Address for Notices:
One Kansas City Place
1200 Main Street
Suite 3250
Kansas City, Missouri 64105
Attention: David Brain
Telecopier No.: (816) 472-5794
Telephone No.: (816) 472-1700
<PAGE>
LENDERS
Commitment THE BANK OF NEW YORK
$66,500,000
By_________________________
Name:
Title:
Lending Office for Base Rate Loans:
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Attention: Michael Pizarro
Telecopier No.: (212) 635-6365
(212) 635-6366
(212) 635-6367
Telephone No.: (212) 635-4697
Lending Office for Eurodollar
Loans:
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Attention: Michael Pizarro
Telecopier No.: (212) 635-6365
(212) 635-6366
(212) 635-6367
Telephone No.: (212) 635-4697
Address for Notices:
One Wall Street
New York, New York 10286
Attention: Jerome Kapelus
Telecopier No.: (212) 635-8595
Telephone No.: (212) 635-8694
<PAGE>
Commitment THE BANK OF NOVA SCOTIA,
NEW YORK AGENCY
$61,750,000
By_________________________
Name:
Title:
Lending Office for Base Rate Loans:
The Bank of Nova Scotia, Atlanta
Agency
600 Peachtree Street, Suite 2900
Atlanta, Georgia 30062
Attention: Craig Subryan
Loan Operations Officer
Telecopier No.: (404) 888-8998
Telephone No.: (404) 877-1547
Lending Office for Eurodollar
Loans:
The Bank of Nova Scotia, Atlanta
Agency
600 Peachtree Street, Suite 2900
Atlanta, Georgia 30062
Attention: Craig Subryan
Loan Operations Officer
Telecopier No.: (404) 888-8998
Telephone No.: (404) 877-1547
Address for Notices:
One Liberty Plaza
New York, New York 10006
Attention: Edward A. Hughes
Relationship Manager
Telecopier No.: (212) 225-5166
Telephone No.: (212) 225-5170
<PAGE>
Commitment GOLDMAN SACHS MORTGAGE COMPANY
$61,750,000 Goldman Sachs Real Estate Funding
Corp.,
its General Partner
By_________________________
Name:
Title:
Lending Office for Base Rate Loans:
Goldman Sachs Mortgage Company
85 Broad Street
26th Floor
New York, New York 10004
Attention: Bruce West
Telecopier No.: (212) 902-1691
Telephone No.: (212) 902-5672
Lending Office for Eurodollar
Loans:
Goldman Sachs Mortgage Company
85 Broad Street
26th Floor
New York, New York 10004
Attention: Bruce West
Telecopier No.: (212) 902-1691
Telephone No.: (212) 902-5672
Address for Notices:
85 Broad Street, 26th Floor
New York , New York 10061
Attention: Roger Boone
Telecopier No.: (212) 902-3684
Telephone No.: (212) 902-0458
<PAGE>
Commitment BANK LEUMI USA
$10,000,000
By_________________________
Name:
Title:
Lending Office for Base Rate Loans:
Bank Leumi USA
16530 Ventura Blvd.
Encino, California 91436
Attention: Bronish Marbury
Telecopier No.: (818) 906-9721
Telephone No.: (818) 906-2715
Lending Office for Eurodollar
Loans:
Bank Leumi USA
16530 Ventura Blvd.
Encino, California 91436
Attention: Bronish Marbury
Telecopier No.: (818) 906-9721
Telephone No.: (818) 906-2715
Address for Notices:
8383 Wilshire Blvd. #400
Beverly Hill, California 90211
Attention: Del Lorimer
Telecopier No.: (213) 655-5933
Telephone No.: (213) 966-4721
<PAGE>
THE BANK OF NEW YORK,
as Administrative Agent
By_________________________
Name:
Title:
Address for Notices to
BNY as Administrative Agent:
BNY Capital Markets, Inc.
1 Wall Street, 18th Floor
New York, New York 10286
Attention: Michael Pizarro
Agency Function
Administration
Telecopier No.: (212) 635-6365
(212) 635-6366
(212) 635-6367
Telephone No.: (212) 635-4697
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$_______________ _______ __, 1998
New York, New York
FOR VALUE RECEIVED, ENTERTAINMENT PROPERTIES TRUST, a
Maryland real estate investment trust (the "Borrower"), hereby
promises to pay to __________________ (the "Lender"), for the
account of its respective Applicable Lending Offices provided for
by the Agreement referred to below, at the principal office of
The Bank of New York at One Wall Street, New York, New York
10286, the principal sum of _______________ Dollars (or such
lesser amount as shall equal the aggregate unpaid principal
amount of the Loans made by the Lender to the Borrower under the
Agreement), in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal
amounts provided in the Agreement, and to pay interest on the
unpaid principal amount of each such Loan, at such office, in
like money and funds, for the period commencing on the date of
such Loan until such Loan shall be paid in full, at the rates per
annum and on the dates provided in the Agreement.
The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan made by the Lender
to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Note, endorsed by the Lender
on the schedule attached hereto or any continuation thereof,
provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing under
the Agreement or hereunder in respect of the Loans made by the
Lender.
This Note is one of the Notes referred to in the Credit
Agreement dated as of _______ __, 1998 (as modified and
supplemented and in effect from time to time, the "Agreement")
between the Borrower, the Subsidiary Guarantors party thereto,
the lenders party thereto (including the Lender) and The Bank of
New York, as Administrative Agent, and <PAGE> evidences Loans made by
the Lender thereunder. Terms used but not defined in this Note
have the respective meanings assigned to them in the Agreement.
The Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and
for prepayments of Loans upon the terms and conditions specified
therein.
Except as permitted by Section 12.06 of the Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in
accordance with, the law of the State of New York.
ENTERTAINMENT PROPERTIES TRUST
By_________________________
Title:
<PAGE>
SCHEDULE OF LOANS
This Note evidences Loans made, Continued or Converted
under the within-described Agreement to the Borrower, on the
dates, in the principal amounts, of the Types, bearing interest
at the rates and having Interest Periods (if applicable) of the
durations set forth below, subject to the payments,
Continuations, Conversions and prepayments of principal set forth
below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of Interest Interest or cipal Notation
Converted Loan Rate Period Converted Amount Made by
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement")
dated as of March 18, 1998, among ENTERTAINMENT PROPERTIES TRUST,
a real estate investment trust duly organized and validly
existing under the laws of the State of Maryland (the
"Borrower"); EPT DOWNREIT, INC., a corporation duly organized and
validly existing under the laws of the State of Missouri (the
"Subsidiary Guarantor"; and together with the Borrower, the
"Obligors"); each of the lenders that is a signatory hereto
identified under the caption "LENDERS" on the signature pages
hereto (individually, a "Lender" and, collectively, the
"Lenders"); and THE BANK OF NEW YORK, a New York banking
corporation, as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Administrative Agent").
RECITALS:
A. The Borrower, the Subsidiary Guarantor, the
Lenders and the Agent are parties to a Credit Agreement dated as
of March 2, 1998 (said Credit Agreement, as so amended and as
same may be further amended, modified and supplemented and in
effect from time to time, being herein called the "Credit
Agreement"; and, except as otherwise herein expressly provided,
all capitalized terms used herein shall have the meaning assigned
to such terms in the Credit Agreement), which Credit Agreement
provides, among other things, for revolving Loans to be made by
the Lenders to the Borrower and Letters of Credit to be issued by
the Issuing Lender on behalf of the Borrower in an aggregate
principal or face amount not exceeding $200,000,000 to finance
the operations of the Obligors for the Permitted Uses.
B. The parties hereto desire to amend the Credit
Agreement in accordance with that certain letter agreement dated
as of March 2, 1998 among the parties hereto.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Amendment of Credit Agreement. The
Credit Agreement is hereby deemed amended as follows:
(a) The definitions of "Applicable Margin", "Total
Indebtedness" and "Total Market Value of Real Estate" in Section
1.01 of the Credit Agreement are hereby deleted in their entirety
and replaced with the following definitions:
""Applicable Margin" means, with respect to any Base
Rate Loan or Eurodollar Loan, or with respect to the
commitment fees payable hereunder, as the case may be,
during any Interest Accrual Period (as defined below), the
rate per annum set forth below under the caption "Base Rate
Margin", "Eurodollar Margin" or "Commitment Fee Rate",
respectively, based on the Total Leverage Ratio for such
Interest Accrual period:
<PAGE>
Total Leverage Base Rate Eurodollar Commitment
Ratio: Loan Margin Loan Margin Fee Rate
>30% 0.500% 1.750% 0.25%
<30% 0.375% 1.625% 0.20%
Notwithstanding the foregoing, in the event the
Borrower obtains an investment grade rating from either S&P or
Moody's, (a) the Applicable Margins for Base Rate Loans and
Eurodollar Loans will be reduced by 0.25% (but not below 0) and
(b) the commitment fee rate will be reduced to 0.175%.
For purposes hereof, an "Interest Accrual Period" means
(i) initially, the period commencing on the Effective Date to but
not including the Quarterly Date falling on or nearest to
March 31, 1998, and (ii) thereafter, the period commencing on a
Quarterly Date to but not including the immediately following
Quarterly Date. The Total Leverage Ratio for the initial
Interest Accrual Period shall be determined on the basis of the
certificate of a Financial Officer of the Borrower delivered
pursuant to Section 7.01(h). The Total Leverage Ratio for any
Interest Accrual Period after the initial Interest Accrual Period
shall be determined on the basis of a certificate of a Financial
Officer of the Borrower setting forth a calculation of the Total
Leverage Ratio as at the last day of the fiscal quarter
immediately preceding such Interest Accrual Period (i.e., the
Total Leverage Ratio for the Interest Accrual Period commencing
April 1, 1998 shall be determined on the basis of the Total
Leverage Ratio as at March 31, 1998, the Total Leverage Ratio for
the Interest Accrual Period commencing July 1, 1998 shall be
determined on the basis of the Total Leverage Ratio as at
June 30, 1998, and so forth), each of which certificates shall be
delivered together with the financial statements for the fiscal
quarter on which such calculation is based.
Anything in this Agreement to the contrary
notwithstanding, the Applicable Margin for Base Rate Loans,
Eurodollar Loans and commitment fees shall be the highest rate
per annum provided for above (i.e., 0.500% with respect to Base
Rate Loans, 1.750% with respect to Eurodollar Loans and 0.25%
with respect to commitment fees) (A) during any period when an
Event of Default shall have occurred and be continuing, including
the determining of the Post-Default Rate, or (B) if a certificate
of a Financial Officer of the Borrower shall not be delivered as
provided above prior to the beginning of any Interest Accrual
Period, for such period commencing on the first day of such
Interest Accrual Period and ending on the date of delivery of
such certificate."
""Total Indebtedness" means, as at any date, the sum,
for the Borrower and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with
GAAP), of the following: (a) all Indebtedness (including,
without limitation, the aggregate amount of Loans and Letter
of Credit Liabilities under this Agreement) and <PAGE> (b) all
other liabilities that should be classified as liabilities
on a balance sheet, including, without limitation, all
reserves (other than general contingency reserves) and all
deferred taxes and other deferred items, but excluding
(i) dividends declared but not yet paid and (ii) trade
payables in the ordinary course of business so long as such
trade payables are payable within 90 days after the date of
the original invoice therefor."
""Total Market Value of Real Estate" means, as of any
date, (a) Net Operating Income for the Borrower's most
recently completed fiscal quarter (less maintenance capital
expenditures) multiplied by (b) four and divided by (c) a
capitalization rate of 10.75%; provided, however, all real
properties that are leased to lessees whose consolidated net
worth, or the consolidated net worth of their respective
guarantors, is less than $25,000,000 shall be capitalized at
a rate of 12.5%; and in the absence of historical financial
information, pro forma financial information shall be used
for the first quarter in the first year of the applicable
lease."
(b) Section 9.10(c) of the Credit Agreement is hereby
deleted in its entirety and replaced with the following
subparagraph (c):
"(c) Maximum Non-Recourse Secured Leverage Ratio. As
at the end of each fiscal quarter, the Non-Recourse Secured
Leverage Ratio shall not exceed 25% at any time."
(c) The text of item no. 9 in Section III(a) and the
text of item no. 10 in Section IV(a) of the form of Borrowing
Base Certificate attached as Exhibit B of the Credit Agreement
are hereby deleted in their entirety and replaced with the
following language in both such sections:
"Other Balance Sheet Liabilities (excluding
trade payables not more than 90 days old and
dividends payable)"
<PAGE>
(d) The table set forth in Section IV(b) of the form
of Borrowing Base Certificate attached as Exhibit B to the Credit
Agreement is hereby deleted in its entirety and replaced with the
following table:
Quarterly Total
Net Capital Capital- Market
Real Estate Operating Improvement ization Owner- Value of
Properties Income Reserve Rate ship % Real Estate
[List each
Real Estate
Property] $ $ ___% ___% $
TOTAL MARKET VALUE OF REAL ESTATE $___________
(e) Sections VII and VIII of the form of Borrowing
Base Certificate attached as Exhibit B to the Credit Agreement
are hereby deleted in their entirety and replaced with the
following:
"VII. FIXED CHARGES RATIO (Section 9.10(e)):
As at the end of [INSERT LAST DATE OF MOST RECENT
FISCAL QUARTER], the Fixed Charges Ratio was ___ to 1,
based on the following computations:
(a) EBITDA, as computed below:
Real Estate Quarterly
Properties EBITDA
[List each Real
Estate Property] $__________
TOTAL $__________
<PAGE>
(b) Total Fixed Charges for such quarter: $
(i) Debt Service: $
(A) [ITEMIZE PRINCIPAL
PAYMENTS]
(B) [ITEMIZE INTEREST
EXPENSE BEFORE
SUBTRACTING
INTEREST INCOME] $
(ii) Capital Improvement Reserves $
(iii) Preferred dividends $_______
Subtotal $
(iv) Less interest income ($______)
TOTAL $
VIII. INTEREST COVERAGE RATIO (Section 9.10(f)):
As at the end of [INSERT LAST DATE OF MOST RECENT
FISCAL QUARTER], the Interest Coverage Ratio was ___ to 1,
based on the following computations:
(a) EBITDA (see total quarterly EBITDA
computation in Section VII (a) above) $
(b) Interest Expense for such quarter,
computed as follows: $
(i) Interest Expense for such quarter
(see computations in
SectionVII(b)(i)(B) above) $
(ii) Less interest income for such
quarter ($______)
TOTAL NET
INTEREST EXPENSE $
<PAGE>
Section 2. Obligor Representations. Each of the
Obligors hereby represents and warrants to the Agent and the
Lenders as follows:
(a) Each of the representations and warranties of the
Obligors contained or incorporated in the Credit Agreement,
as amended by this Agreement, or any of the other Loan
Documents, are true and correct in all material respects on
and as of the date hereof (except if any such representation
or warranty is expressly stated to have been made as of a
specific date, then as of such specific date);
(b) As of the date hereof and immediately after giving
effect to this Agreement and the actions contemplated
thereby, no Default shall have occurred and be continuing;
and
(c) Each Obligor has all necessary real estate
investment trust or corporate, as applicable, power and
authority to execute, deliver and perform its obligations
under this Agreement; each Obligor of this Agreement has
been duly authorized by all necessary real estate investment
trust or corporate, as applicable, action on its part; and
this Agreement has been duly and validly executed and
delivered by each Obligor and constitutes each Obligor's
legal, valid and binding obligation, enforceable in
accordance with their respective terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights
and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
Section 3. Ratification. Except as modified
herein, all of the Loan Documents are hereby ratified and
confirmed on behalf of the parties hereto.
Section 4. Miscellaneous.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(b) Amendments, Etc. The terms of this Agreement may
be waived, modified and amended only by an instrument in writing
duly executed by the Borrower and the Agent (with any required
consent of the Lenders pursuant to the Credit Agreement). Any
such waiver, modification or amendment shall be binding upon each
Obligor, the Agent, each Lender and each holder of any of the
Notes.
(c) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of the Obligors, the Agent, the Lenders
and <PAGE> any holder of any of the Notes (provided, however, that
(a) no Obligor shall assign or transfer its rights or obligations
hereunder except as provided in Section 12.06(a) of the Credit
Agreement and (b) any assignment by the Lenders shall be subject
to the terms of Section 12.06(b) of the Credit Agreement).
(d) Captions. The captions and section headings
appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any
provision of this Agreement.
(e) Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and either of the parties
hereto may execute this Agreement by signing any such
counterpart.
(f) Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (a) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Agent and the Lenders in
order to carry out the intentions of the parties hereto as nearly
as may be possible and (b) the invalidity or unenforceability of
any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
[Signature pages follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
BORROWER
ENTERTAINMENT PROPERTIES TRUST
By___________________________
Name:
Title:
SUBSIDIARY GUARANTORS
EPT DOWNREIT, INC.
By___________________________
Name:
Title:
<PAGE>
LENDERS
THE BANK OF NEW YORK
By___________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
NEW YORK AGENCY
By_____________________
Name:
Title:
GOLDMAN SACHS MORTGAGE COMPANY
Goldman Sachs Real Estate Funding
Corp., its General Partner
By_______________________
Name:
Title:
BANK LEUMI USA
By______________________
Name:
Title:
<PAGE>
ADMINISTRATIVE AGENT
THE BANK OF NEW YORK,
as Administrative Agent
By__________________________
Name:
Title:
Exhibit 21
LIST OF SUBSIDIARIES OF THE COMPANY
1. EPT DownREIT, Inc., a Missouri corporation.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 45,220
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 456
<PP&E> 214,471
<DEPRECIATION> 659
<TOTAL-ASSETS> 259,488
<CURRENT-LIABILITIES> 8,262
<BONDS> 0
0
0
<COMMON> 139
<OTHER-SE> 251,087
<TOTAL-LIABILITY-AND-EQUITY> 259,488
<SALES> 1,887
<TOTAL-REVENUES> 1,887
<CGS> 0
<TOTAL-COSTS> 1,032
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (587)
<INCOME-PRETAX> 1,442
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,442
<EPS-PRIMARY> .10
<EPS-DILUTED> .10
</TABLE>
