<PAGE> 1
EXHIBIT 10.17
FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Agreement" or this "Fourth
Amendment") dated as of September __, 2000, 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
Administrative Agent are parties to a Credit Agreement dated as of March 2,
1998, as amended by First Amendment to Credit Agreement dated as of March 18,
1998, Second Amendment to Credit Agreement dated as of June 29, 1998 and Third
Amendment to Credit Agreement dated as of December 21, 1998 (said Credit
Agreement, as so amended and as the 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 $150,000,000 to finance the operations of the
Obligors for the Permitted Uses.
B. The parties hereto desire to amend the Credit Agreement.
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 definition of "Applicable Margin" is amended and restated in
its entirety as follows:
"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.
<PAGE> 2
<TABLE>
<CAPTION>
Base Rate Loan Margin Eurodollar Loan Margin Commitment Fee Rate
<C> <C> <C>
1.50% 2.75% 0.25%
</TABLE>
(b) The definition of "Borrowing Base Leverage Ratio" is amended and
restated as follows:
"Borrowing Base Leverage Ratio" means, at any time, the ratio of (a)
the sum of (i) the portion of Total Indebtedness which is unsecured by any
Lien plus (ii) Indebtedness outstanding under the Agreement to (b) the
Borrowing Base Value.
(c) The definition of "Borrowing Base Value" is amended by (i)
deleting clause (b) thereof and changing the reference to "(c)" in the 7th
line thereof to "(b)" and (ii) adding prior to the period at the end
thereof the following: "; provided, however, that from and after the date
of the Fourth Amendment until the effective date of the approved plan of
reorganization of Edwards Theatres Circuit, Inc, the Borrowing Base Value
for the Aliso Viejo Property (as defined in the Fourth Amendment) shall be
reduced to an amount equal to the product of (x) the Borrowing Base Value
for the Aliso Viejo Property as otherwise determined pursuant to this
definition multiplied by (y) 66% (0.66)".
(d) The definition of "Loan Documents" is amended and restated as
follows:
"Loan Documents" means, collectively, the Agreement, the Notes, the
Letter of Credit Documents, the Mortgages and the Stock Pledge Agreement.
(e) The following defined terms are added to Section 1.01 of the
Credit Agreement.
"Capital Stock" means, (a) in the case of a corporation, any equity
security issued by that corporation; (b) in the case of any other entity,
any share, membership, partnership or other percentage interest, unit of
participation or other equivalent (however designated) of a corporate
equity security; and (c) any and all warrants, rights or options to
purchase any of the foregoing.
"Development Activity" means the acquisition, development or leasing
of Real Estate Properties by the Borrower or any Subsidiary.
"Disposition" means the sale, lease, conveyance or other disposition
of assets by the Borrower or any Subsidiary to any Person (other than
between the Borrower or any Subsidiary), including Sale and Leaseback
Transactions, and the sale or transfer by the Borrower or any Subsidiary of
any Capital Stock issued by any Subsidiary held by such transferor Person
to any Person (other than between the Borrower or any Subsidiary).
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"Event of Loss" means with respect to any fee or leasehold interest in
real property by the Borrower or any Subsidiary of any of the following:
(a) any loss, destruction or damage of such property; (b) any sale,
transfer, conveyance or other Disposition of such property in lieu of or in
settlement of any pending or threatened institution of any proceedings for
the condemnation or seizure of such property or for the exercise of any
right of eminent domain or (c) any actual condemnation, seizure or taking,
by exercise of the power of eminent domain or otherwise, of such property,
or confiscation of such property or the requisition of the use of such
property.
"Fourth Amendment" means, the Fourth Amendment to Credit Agreement
dated as of September __, 2000 among the Borrower, the Subsidiary
Guarantor, the Lenders and the Administrative Agent.
"Net Issuance Proceeds" means, as to any issuance of debt or equity by
any Person, cash proceeds received or receivable by such Person in
connection therewith, net of reasonable out-of-pocket costs and expenses
(including underwriting fees and commissions) paid or incurred in
connection therewith in favor of any Person not an Affiliate of such
Person.
"Mortgage" or "Mortgages" shall have the meaning set forth in Section
3 of the Fourth Amendment.
"Net Proceeds" means, as to any Disposition by a Person, proceeds in
cash, checks or other cash equivalent financial instruments as and when
received by such Person, net of: (a) the direct costs relating to such
Disposition excluding amounts payable to such Person or any Affiliate of
such Person to the extent in excess of arms' length costs, (b) sale, use or
other transaction taxes paid or payable by such Person as a direct result
thereof, (c) a reasonable reserve for taxes payable incident to such
Disposition (without duplication of taxes included in clause (b)) and (d)
amounts required to be applied to repay principal, interest and prepayment
premiums and penalties on Indebtedness secured by a Lien on the asset which
is the subject of such Disposition. "Net Proceeds" shall also include
proceeds in cash, checks or other cash equivalent financial instruments
paid on account of any Event of Loss, net of (i) so long as no Event of
Default has occurred and is continuing, all money actually applied to
repair, replace or reconstruct the damaged property or property affected by
the condemnation or taking, (ii) so long as no Event of Default has
occurred and is continuing, all of the costs and expenses reasonably
incurred in connection with the collection of such proceeds, award or other
payments, and (iii) any amounts retained by or paid to parties having
superior rights to such proceeds, awards or other payments. Notwithstanding
the foregoing, "Net Proceeds" shall not include fair market monthly rental
payments not prepaid more than one month in advance arising out leases of
Property by Borrower or any Subsidiary in the ordinary course of such
Person's business.
"Sale and Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person whereby a seller or transferor shall sell or
otherwise transfer any real or personal property and then or thereafter
lease, or repurchase under an extended purchase contract, condition sales
or other title retention agreement, the same or similar property.
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"Stock Pledge Agreement" means the collective reference to the Stock
Pledge Agreements executed and delivered by Borrower to Administrative
Agent for the benefit of the Lenders pursuant to Section 2 of the Fourth
Amendment.
(f) The Commitments are permanently reduced from $150,000,000 to
$127,000,000. Such reduction shall be effective as of the date of this
Fourth Amendment. Notwithstanding anything to the contrary in clause (a) of
Section 4.02 of the Credit Agreement, the respective Commitments of the
Lenders are hereby changed as follows:
<TABLE>
<CAPTION>
Lender Previous Commitment New Commitment
------ ------------------- --------------
<S> <C> <C>
The Bank of New York .................... $ 25,012,500.00 $ 21,177,250.00
The Bank of Nova Scotia ................. $ 20,468,750.00 $ 17,330,208.33
Goldman Sachs Mortgage Company .......... $ 25,468,750.00 $ 21,563,541.67
Bank Leumi USA .......................... $ 7,500,000.00 $ 6,350,000.00
International Commercial Bank of China .. $ 11,250,000.00 $ 9,525,000.00
Israel Discount Bank of New York ........ $ 7,500,000.00 $ 6,350,000.00
Compass Bank ............................ $ 17,800,000.00 $ 15,070,666.67
Citizens Bank of Rhode Island ........... $ 20,000,000.00 $ 16,933,333.33
Bank United ............................. $ 15,000,000.00 $ 12,700,000.00
Total ................................... $150,000,000.00 $127,000,000.00
</TABLE>
(g) Section 2.10 of the Credit Agreement is modified by adding the
following subparagraph (c).
"(c) Capital Events. (i) Dispositions. If the Borrower or any
Subsidiary shall, subject to the terms of the Loan Documents, at any time
or from time to time make a Disposition or shall suffer an Event of Loss,
then the Borrower shall promptly notify the Administrative Agent of such
proposed Disposition or Event of Loss (including the amount of estimated
Net Proceeds to be received by the Borrower or applicable Subsidiary) and
shall promptly after consummation thereof, and in no event later than two
(2) Business Days after such receipt of the Net Proceeds in respect of such
Disposition or Event of Loss, apply toward prepayment of the Loans and
reduction of the Commitments an amount equal to the Net Proceeds in respect
thereof.
(ii) Equity Issuance. If the Borrower or any Subsidiary shall, subject
to the terms of the Loan Documents, issue and sell any of its Capital Stock
to any Person other than to the Borrower, the Borrower shall promptly
notify the Administrative Agent
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of the estimated Net Issuance Proceeds of such issuance and sale to be
received by the issuer of such Capital Stock in respect thereof. Promptly
upon, and in no event later than two (2) Business Days after, receipt by
the applicable issuer of Net Issuance Proceeds in respect of such issuance,
the Borrower shall apply toward prepayment of the Loans and reduction of
the Commitments an amount equal to such Net Issuance Proceeds.
(iii) Debt Issuance. If the Borrower or any Subsidiary shall, subject
to the terms of the Loan Documents incur or permit the incurrence of any
Indebtedness otherwise permitted under Section 9.07 hereof, the Borrower
shall promptly notify the Administrative Agent of the estimated Net
Issuance Proceeds of such Indebtedness to be received by the applicable
borrower in respect thereof. Promptly upon, and in no event later than five
days after, receipt by the applicable borrower of Net Issuance Proceeds in
respect of such Indebtedness, the Borrower shall apply toward prepayment of
the Loans and reduction of the Commitments an amount equal to the amount of
such Net Issuance Proceeds.
(iv) General. All prepayments of principal under this Section 2.10 (c)
shall be applied to repay the Loans and, in connection with such
prepayments the Commitments shall be permanently reduced by an amount equal
to the loans so repaid. Any prepayments pursuant to this Section 2.10 (c)
shall be applied first to any Base Rate Loans then outstanding and then to
Eurodollar Rate Loans with the shortest Interest Periods remaining;
provided, however, that if the amount of Base Rate Loans then outstanding
is not sufficient to satisfy the entire prepayment requirement, the
Borrower may, at its option, place any amounts which it would otherwise be
required to use to prepay Eurodollar Rate Loans on a day other than the
last day of the Interest Period therefor in an interest-bearing account
pledged to the Administrative Agent for the benefit of the Lenders until
the end of such Interest Period at which time such pledged amounts will be
applied to prepay such Eurodollar Rate Loans. The Borrower shall pay,
together with each prepayment under this Section 2.10 (c), accrued interest
on the amount prepaid and any amounts required pursuant to Section 5.05.
(v) Reduction of Commitment. Upon the making of any mandatory
prepayment pursuant to this Section 2.10 (c), the Commitment of each Lender
shall automatically be reduced by an amount equal to such Lender's ratable
share of the aggregate of principal of such Loans repaid, effective as of
the earlier of the date that such prepayment is made or the date by which
such prepayment is due and payable hereunder. All accrued commitment fees
to, but not including the effective date of any such reduction, shall be
paid on the effective date of such reduction."
(h) Section 9.01 of the Credit Agreement is amended by (i) deleting
the word "and" at the end of clause (k) thereof, (ii) deleting the period at the
end of clause (l) thereof and substituting a semicolon therefor and (iii) by
adding the following as new clauses "(m)" and "(n)" thereto:
"(m) simultaneously with the Borrowing Base Certificate delivered
pursuant to clause (f) above, a status report on Borrower's efforts to
refinance the Loans on or before the Commitment Termination
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Date (a "Refinancing Report"), which Refinancing Report shall be in form
and substance satisfactory to Administrative Agent and shall be accompanied
by such supporting documentation as Administrative Agent may reasonably
request; and
(n) simultaneously with the financial statement delivered pursuant to
clause (b) above, an operating statement for each Borrowing Base Property
and each Mortgaged Property (without duplication) for the most recently
completed fiscal quarter, to the extent available from the operator or
lessee of such Borrowing Base Property or Mortgaged Property, as
applicable, and received by the Borrower, in each case in form and
substance satisfactory to the Administrative Agent."
(i) Section 9.06(a) of the Credit Agreement is amended by (i) deleting
the word "and" at the end of clause (ii) thereof, (ii) deleting the period at
the end of clause (vii) thereof and substituting "; and" therefor and (iii) by
adding the following as new clause (viii) thereto:
"(viii) Liens in favor of the Administrative Agent for the benefit of
the Lenders created pursuant to the Fourth Amendment."
(j) Section 9.09 of the Credit Agreement is amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, (i) for each of the fiscal quarters of
the Borrower ending September 30, 2000 and December 31, 2000, Restricted
Payments made by Borrower and its Subsidiaries shall not exceed an
aggregate amount equal to the product of (x) $0.44 multiplied by (y) the
number of shares of Capital Stock of the Borrower outstanding on the date
of the Fourth Amendment (such amount to be adjusted pro rata to the extent
of any increases or decreases in the number of shares of Capital Stock of
the Borrower after the date of the Fourth Amendment to the extent permitted
hereunder) except to the extent required for Borrower to maintain its
status as a REIT, and (ii) from and after the date of the Fourth Amendment,
the Borrower will not, nor permit any of its Subsidiaries to, purchase,
repurchase, redeem, retire or otherwise acquire any shares of any class of
stock of the Borrower or of any warrants, options or other rights to
acquire same."
(k) Section 9.10(c) of the Credit Agreement is deleted in its entirety
as of June 30, 2000, and all references thereto in the Loan Documents are
deleted.
(l) Section 9.10(d) of the Credit Agreement is deleted in its entirety
as of June 30, 2000, and all references thereto in the Loan Documents are
deleted.
(m) Section 9.10(i) of the Credit Agreement is deleted in its entirety
as of June 30, 2000, and all references thereto in the Loan Documents are
deleted.
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(n) Section 9.22 of the Credit Agreement is modified by adding at the
end thereof, the following:
"Notwithstanding the foregoing, except for such Development Activity listed
on Schedule 1 to the Fourth Amendment, which the Borrower represents to the
Lenders and the Administrative Agent to have commenced prior to the date of
the Fourth Amendment and which is actively being pursued to completion as
of the date of the Fourth Amendment, from and after the date of the Fourth
Amendment, Borrower may engage in, pursue or invest in new Development
Activities only to the extent such Development Activity is financed
entirely by the issuance of Capital Stock of the Borrower or a Subsidiary
or is otherwise approved by the Administrative Agent and the Majority
Lenders."
(o) Section 10 of the Credit Agreement is amended by (i) deleting the
period at the end of clause (l) therefor, (ii) deleting the period at the end of
clause (m) thereof and substituting a semicolon therefor and (iii) adding the
following as new clauses "(n)" and "(o)" thereto:
"(n) any "Event of Default" (as defined in the Mortgages) shall occur
and be continuing or Borrower or the applicable Subsidiary shall default in
the performance of any other covenant or agreement under the Mortgages and
such default shall continue beyond any applicable notice or cure period; or
(o) The Borrower shall default in its obligations under Section 3 of
the Fourth Amendment."
Section 2. Pledge of Stock of Subsidiaries. Simultaneously with the
execution of this Fourth Amendment the Borrower shall execute and deliver to
Administrative Agent a Stock Pledge Agreement in the form attached hereto as
Exhibit A, together with such other documents as shall be reasonably required by
the Administrative Agent in order to obtain and confirm a first priority Lien on
the stock pledged thereunder (including, without limitation, an opinion of
counsel to the Borrower in form and substance satisfactory to the Administrative
Agent), pursuant to which the Borrower shall pledge to the Administrative Agent,
for the benefit of the Lenders, all of the capital stock of the Subsidiaries
listed on Part I of Schedule 2 hereto (the "Pledged Subsidiaries") as security
for repayment of the Loans. The Borrower hereby represents to the Lenders and
Administrative Agent that the Pledged Subsidiaries and the Subsidiaries listed
on Part II of Schedule 2 hereto (the "Other Subsidiaries") are all of the
existing Subsidiaries of Borrower (whether direct or indirect).
Section 3. Mortgages. As soon as practicable after the date of the
Fourth Amendment, but in no event later than October 31, 2000, Borrower shall
deliver or cause to be delivered to Administrative Agent the following, in each
case in form and substance satisfactory to Administrative Agent:
(a) a first lien mortgage or deed of trust, assignment of leases and
rents and security agreement in respect of each of the Real Estate
Properties listed on Part I of
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Schedule 3 hereto (each a "Mortgaged Property" and collectively, the
"Mortgaged Properties") made by Borrower (or such subsidiary of Borrower
owning the applicable Mortgaged Property) in favor of, or for the benefit
of, the Administrative Agent for the benefit of the Lenders and encumbering
each Mortgaged Property, in each case in form appropriate for filing in the
applicable jurisdiction and otherwise satisfactory to the Administrative
Agent (each such mortgage or deed of trust, together with all amendments,
supplements or modifications thereto as may be approved by the
Administrative Agent from time to time, a "Mortgage", and collectively, the
"Mortgages"); together with Uniform Commercial Code financing statements in
appropriate form for recording covering all fixtures and other personal
property in respect of the Mortgaged Properties;
(b) one or more mortgagee policies of title insurance on forms of
(including endorsements thereto) and issued by the title company
satisfactory to the Administrative Agent (the "Title Company"), insuring
the validity and priority of the Liens created under the Mortgages for and
in the aggregate amount of the Commitments;
(c) as-built survey of each Mortgaged Property showing such matters as
may be required by the Title Company to omit the standard survey exception
from the mortgagee title policy for such Mortgaged Property, and, if
available, certified to the Administrative Agent and to each Lender and the
Title Company, prepared by a registered surveyor;
(d) copies of certificates of occupancy for the Mortgaged Properties;
(e) certificates of insurance evidencing the existence of all
insurance required to be maintained by the Borrower pursuant to the
Mortgages, such certificates to be in such form and contain such
information as is specified in Mortgage;
(f) a Phase I environmental survey and assessment in respect of each
Mortgaged Property prepared by a firm of licensed engineers (familiar with
the identification of toxic and hazardous substances) in form and substance
satisfactory to the Administrative Agent;
(g) an opinion of counsel to the Borrower addressed to the Agent and
the Lenders addressing the due execution, authorization, delivery and
enforceability of the Mortgages, and such other matters as the
Administrative Agent shall require; and
(h) evidence that all other actions necessary or, in the opinion of
the Administrative Agent, desirable to perfect and protect the first
priority Lien created by the Mortgages, and to enhance the Administrative
Agent's ability to preserve and protect its interest in and access to the
Mortgaged Property and the other collateral related thereto, have been
taken.
In addition, the Borrower shall have paid to the Title Company all expenses and
premiums of the Title Company in connection with the issuance of the title
policies referred to in clause (b) above and in addition shall have paid to the
Title Company an amount equal to the recording and stamp
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taxes payable in connection with recording the Mortgages in the appropriate
county land office(s).
Section 4. Waiver of Default. The parties acknowledge that as a result
of the bankruptcy filing of Edwards Theatres Circuit, Inc. ("Edwards") on August
23, 2000, which bankruptcy filing triggered an event of default under the
Qualified Third Party Lease with Edwards (the "Edwards Lease") at the Real
Estate Property known as Aliso Viejo Stadium 20 located in Aliso Viejo,
California (the "Aliso Viejo Property"), the Aliso Viejo Property no longer
satisfies the qualifications of a Borrowing Base Property (the "Edwards
Default"). Notwithstanding the foregoing, so long as (x) (1) Edwards continues
to pay all scheduled rent on a current basis in accordance with the terms of the
Edwards Lease (provided, however, that Edwards shall have until October 31, 2000
to pay any existing rent arrearages), (2) the Borrower shall take all necessary
and otherwise prudent actions to make a claim in the Edwards bankruptcy
proceeding for all rents due or to become due to Borrower in connection with the
Edwards Lease and (3) the Edwards Lease is not rejected in the bankruptcy
proceeding and (y) no other default or event of default shall occur and be
continuing under the Edwards Lease other than the event of default triggered
solely by the bankruptcy filing of Edwards (but not any other default arising
out of the effects of the Edwards bankruptcy filing), the Edwards Default is
hereby and shall remain waived. If at any time, however, (i) Edwards shall fail
to pay rent in accordance with the terms the Edwards Lease (subject to the
foregoing right to bring existing rent arrearages into compliance by October 31,
2000), regardless of whether a court of competent jurisdiction, including the
court in which the Edwards bankruptcy is pending, determines that Edwards owes a
different amount or that different rent terms should apply, (ii) the Borrower
shall fail to make the necessary or prudent claims in the Edwards bankruptcy
proceeding for all rents due or to become due to Borrower in connection with the
Edwards Lease, (iii) the Edwards Lease shall be rejected in the bankruptcy
proceeding or (iv) any other default or event of default shall occur and be
continuing under the Edwards Lease other than the event of default triggered
solely by the Edwards' bankruptcy filing (but not any other default arising out
of the effects of the Edwards bankruptcy filing), an Event of Default shall be
deemed to have occurred under Section 10(n) of the Credit Agreement (subject to
the cure right described herein); provided, however, that notwithstanding the
first two lines of Section 10(n) of the Credit Agreement granting the Borrower
up to thirty (30) days to cure such default by removing the Aliso Viejo
Property, the Borrower shall have not more than two (2) Business Days to cause a
cure of such Event of Default by removing the Aliso Viejo Property from the
Borrowing Base. The foregoing waiver shall not otherwise effect the Borrower's
rights under the Credit Agreement prior to an Event of Default to remove the
Aliso Viejo Property as a Borrowing Base Property (or substitute another
Eligible Property for the Aliso Viejo Property) provided that after such removal
or substitution, the Borrower is otherwise in compliance with all the terms of
the Credit Agreement.
Section 5. Amendment Fee. The Borrower shall pay to each Lender that
executes and delivers to the Administrative Agent a counterpart of this Fourth
Amendment on or before 3:00 p.m., Eastern Time, on September 8, 2000 a fee (the
"Amendment Fee") in the amount of 0.10% of such Lender's Commitment (as reduced
pursuant to this Fourth Amendment). Such Amendment Fee shall be paid on or
before the date each such Lender executes this Fourth Amendment.
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Section 6. Obligor Representations. Each of the Obligors hereby
represents and warrants to the Administrative 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 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 7. Ratification and Estoppel. Except as modified herein, all
of the Loan Documents are in full force and effect hereby ratified and confirmed
on behalf of the parties hereto. Borrower hereby certifies to the Administrative
Agent and the Lenders that (a) no Default or Event of Default has occurred and
is continuing, (b) to the best knowledge of Borrower, no default or breach has
occurred by the Administrative Agent or any of the Lenders under any of the Loan
Documents and (c) Borrower has no claims of any kind against the Administrative
Agent or any Lender arising out of or related to the Loan Documents.
Section 8. 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 Administrative 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 Administrative 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 Administrative Agent, the Lenders and 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)
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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 Agreements 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
Administrative 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]
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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:
LENDERS
THE BANK OF NEW YORK
By ______________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY
By ______________________________________
Name:
Title:
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GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding
Corp., its General Partner
By ______________________________________
Name:
Title:
BANK LEUMI USA
By ______________________________________
Name:
Title:
INTERNATIONAL COMMERCIAL BANK OF CHINA
By ______________________________________
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK
By ______________________________________
Name:
Title:
COMPASS BANK
By ______________________________________
Name:
Title:
CITIZENS BANK OF RHODE ISLAND
By ______________________________________
Name:
Title:
13
<PAGE> 14
BANK UNITED
By ______________________________________
Name:
Title:
ADMINISTRATIVE AGENT
THE BANK OF NEW YORK,
as Administrative Agent
By ______________________________________
Name:
Title:
14
<PAGE> 15
SCHEDULE 1
CURRENT DEVELOPMENT ACTIVITY
Land Parcels underlying or co-located with the following theatres:
Gulf Pointe-Houston, TX
Mesquite, TX
Cantera, IL
Woodridge, IL
Power Springs, GA
Westminster Promenade-Denver, CO
Oakview,-Omaha, NE
Palm Promenade-San Diego, CA
15
<PAGE> 16
SCHEDULE 2, PART I
PLEDGED SUBSIDIARIES
EPT Downreit Inc., a Missouri corporation
SCHEDULE 2, PART II
OTHER SUBSIDIARIES
EPT Downreit II Inc., a Missouri corporation
3 Theatres, Inc., a Missouri corporation
Canterra 30, Inc., a Missouri corporation
[other]
16
<PAGE> 17
SCHEDULE 3
MORTGAGED PROPERTIES
STATE PROPERTIES
----- ----------
CALIFORNIA PALM PROMENADE
(2 PROPERTIES)
EDWARDS ALISO VIEJO
FLORIDA MUVICO-DAVIE
(2 PROPERTIES)
MUVICO-TAMPA
ILLINOIS SOUTH BARRINGTON
KANSAS LEAWOOD TOWN CENTER
NEBRASKA OAKVIEW
NORTH CAROLINA CONSOLIDATED - CARY
TEXAS FIRST COLONY
(3 PROPERTIES)
GULF POINTE
MESQUITE
VIRGINIA HAMPTON TOWN CENTER
ILLINOIS LOEWS WOODRIDGE
17
