UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 4, 2012
Entertainment Properties Trust
(Exact name of registrant as specified in its charter)
Maryland | 1-13561 | 43-1790877 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
909 Walnut Street, Suite 200
Kansas City, Missouri 64106
(Address of principal executive office)(Zip Code)
(816) 472-1700
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Definitive Material Agreement. |
Underwriting Agreement
On October 4, 2012, Entertainment Properties Trust (the Company) entered into an underwriting agreement (the Underwriting Agreement) with Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and RBC Capital Markets, LLC, for themselves and as representatives of the several underwriters named therein, in connection with a public offering of 5,000,000 shares of the Companys 6.625% Series F cumulative redeemable preferred shares of beneficial interest, par value $0.01 per share (the Series F Preferred Shares). Settlement for the offering of the Series F Preferred Shares is expected to occur on October 12, 2012. The Company has filed a prospectus supplement with the Securities and Exchange Commission in connection with this public offering.
The Underwriting Agreement contains customary representations, warranties and covenants and includes the terms and conditions for the sale of the Series F Preferred Shares, indemnification and contribution obligations and other terms and conditions customary in agreements of this type.
Unsecured Revolving Credit Facility Joinder Agreement
On October 11, 2012, Flik, Inc., EPT Gulf Pointe, Inc., EPT Mesquite, Inc. and EPT South Barrington, Inc. (each a subsidiary of the Company and collectively referred to herein as the New Borrowers) entered into a Joinder Agreement (the Revolver Joinder Agreement) with Keybank National Association, in its capacity as administrative agent under the Unsecured Revolving Credit Facility referred to below, whereby the New Borrowers agreed to join in and become co-borrowers under the Amended and Restated Credit Agreement, dated as of October 31, 2011, among the Company, certain subsidiaries of the Company, the lenders referred to therein, Keybank National Association, as administrative agent for such lenders, and certain other parties thereto (the Unsecured Revolving Credit Facility). The joinder of the New Borrowers to the Unsecured Revolving Credit Facility enables certain qualifying unencumbered assets of the respective New Borrowers to be included in the borrowing availability thereunder.
Unsecured Term Loan Facility Joinder Agreement
On October 11, 2012, the New Borrowers referred to above entered into a Joinder Agreement (the Term Loan Joinder Agreement) with Keybank National Association, in its capacity as administrative agent under the Unsecured Term Loan Facility referred to below, whereby the New Borrowers agreed to join in and become co-borrowers under the Credit Agreement, dated as of January 5, 2012, among the Company, certain subsidiaries of the Company, the lenders referred to therein, Keybank National Association, as administrative agent for such lenders, and certain other parties thereto (the Unsecured Term Loan Facility). The joinder of the New Borrowers to the Unsecured Term Loan Facility enables certain qualifying unencumbered assets of the respective New Borrowers to be included in the credit availability thereunder.
Supplemental Indenture to Indenture dated June 30, 2010 relating to the Companys 7.750% Senior Notes due 2020
On October 11, 2012, Flik, Inc., EPT Gulf Pointe, Inc., EPT Mesquite, Inc. and EPT South Barrington, Inc. (each a subsidiary of the Company and collectively referred to herein as the Joining Guarantors), the Company and certain other subsidiaries of the Company that are existing guarantors under the 2010 Indenture referred to below, entered into a Supplemental Indenture (the 7.750% Senior Notes Supplemental Indenture) with UMB Bank, n.a., as trustee under the 2010 Indenture, whereby the Joining Guarantors agreed to fully and unconditionally guarantee all of the Companys obligations under the Indenture, dated as of June 30, 2010, relating to the Companys 7.750% Senior Notes due 2020 (the 2010 Indenture), on the terms set forth therein.
Supplemental Indenture to Indenture dated August 8, 2012 relating to the Companys 5.750% Senior Notes due 2022
On October 11, 2012, the Joining Guarantors referred to above, the Company and certain other subsidiaries of the Company that are existing guarantors under the 2012 Indenture referred to below, entered into a Supplemental Indenture (the 5.750% Senior Notes Supplemental Indenture) with U.S. Bank National Association, as trustee under the 2012 Indenture, whereby the Joining Guarantors agreed to fully and unconditionally guarantee all of the Companys obligations under the Indenture, dated as of August 8, 2012, relating to the Companys 5.750% Senior Notes due 2022 (the 2012 Indenture), on the terms set forth therein.
The foregoing summary of the Underwriting Agreement, Revolver Joinder Agreement, Term Loan Joinder Agreement, 7.750% Senior Notes Supplemental Indenture and 5.750% Senior Notes Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Underwriting Agreement, 7.750% Senior Notes Supplemental Indenture, 5.750% Senior Notes Supplemental Indenture, Revolver Joinder Agreement and Term Loan Joinder Agreement which are attached hereto as Exhibits 1.1, 4.1, 4.2, 10.1 and 10.2, respectively, and are incorporated herein by reference.
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 above is incorporated herein by reference as if fully set forth herein.
Item 8.01. | Other Events. |
On October 4, 2012, the Company entered into an Agreement Regarding Ownership Limit Waiver (the Waiver Agreement) with CBRE Clarion Securities LLC (CBRE) in connection with the public offering of the Series F Preferred Shares referenced in Item 1.01 above. The Waiver Agreement, authorized by the Companys Board of Trustees, waives the ownership limit set forth in the Companys Amended and Restated Declaration of Trust, as amended, to permit CBRE, on behalf of certain accounts and institutions, to acquire up to 25% of the Series F Preferred Shares in the public offering. The Company conditioned the waiver upon the receipt of certain undertakings and representations from CBRE, which the Company deemed reasonably necessary in order to determine that the waiver did not adversely affect the Companys qualification as a real estate investment trust.
The foregoing description of the Waiver Agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the Waiver Agreement, which is attached as Exhibit 4.3 hereto, and is incorporated herein by reference.
WARNING CONCERNING FORWARD LOOKING STATEMENTS
THIS REPORT CONTAINS STATEMENTS WHICH CONSTITUTE FORWARD LOOKING STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND OTHER FEDERAL SECURITIES LAWS, INCLUDING WITH RESPECT TO THE COMPANYS PLANNED ISSUANCE OF THE SERIES F PREFERRED SHARES. THESE FORWARD LOOKING STATEMENTS ARE BASED UPON THE COMPANYS PRESENT INTENT, BELIEFS OR EXPECTATIONS, BUT FORWARD LOOKING STATEMENTS ARE NOT GUARANTEED TO OCCUR AND MAY NOT OCCUR. ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE CONTAINED IN OR IMPLIED BY THE COMPANYS FORWARD LOOKING STATEMENTS AS A RESULT OF VARIOUS FACTORS. YOU SHOULD NOT PLACE UNDUE RELIANCE UPON FORWARD LOOKING STATEMENTS.
Item 9.01 | Financial Statements and Exhibits. |
Exhibit No. | Description | |
1.1 | Underwriting Agreement, dated October 4, 2012, among Entertainment Properties Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and RBC Capital Markets, LLC, for themselves and as representatives of the several underwriters named therein. | |
4.1 | Supplemental Indenture, dated as of October 11, 2012, among the Company, the Joining Guarantors, certain other subsidiaries of the Company and UMB Bank, n.a., in its capacity as trustee under the Indenture, dated as of June 30, 2010, relating to the Companys 7.750% Senior Notes due 2020. |
4.2 | Supplemental Indenture, dated as of October 11, 2012, among the Company, the Joining Guarantors, certain other subsidiaries of the Company and U.S. Bank National Association, in its capacity as trustee under the Indenture, dated as of August 8, 2012, relating to the Companys 5.750% Senior Notes due 2022. | |
4.3 | Agreement Regarding Ownership Limited Waiver, dated October 4, 2012, between Entertainment Properties Trust and CBRE Clarion Securities LLC. | |
10.1 | Joinder Agreement, dated as of October 11, 2012, among the Joining Borrowers and Keybank National Association, in its capacity as administrative agent under the Amended and Restated Credit Agreement, dated as of October 31, 2011, among the Company, certain subsidiaries of the company, the Lenders referred to therein, Keybank National Association, as administrative agent, and certain other parties thereto. | |
10.2 | Joinder Agreement, dated as of October 11, 2012, among the Joining Borrowers and Keybank National Association, in its capacity as administrative agent under the Credit Agreement, dated as of January 5, 2012, among the Company, certain subsidiaries of the company, the Lenders referred to therein, Keybank National Association, as administrative agent, and certain other parties thereto. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
ENTERTAINMENT PROPERTIES TRUST | ||
By: | /s/ Mark A. Peterson | |
Name: | Mark A. Peterson | |
Title: | Senior Vice President, Treasurer and Chief Financial Officer |
Date: October 11, 2012
INDEX TO EXHIBITS
Exhibit |
Description | |
1.1 | Underwriting Agreement, dated October 4, 2012, among Entertainment Properties Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and RBC Capital Markets, LLC, for themselves and as representatives of the several underwriters named therein. | |
4.1 | Supplemental Indenture, dated as of October 11, 2012, among the Company, the Joining Guarantors, certain other subsidiaries of the Company and UMB Bank, n.a., in its capacity as trustee under the Indenture, dated as of June 30, 2010, relating to the Companys 7.750% Senior Notes due 2020. | |
4.2 | Supplemental Indenture, dated as of October 11, 2012, among the Company, the Joining Guarantors, certain other subsidiaries of the Company and U.S. Bank National Association, in its capacity as trustee under the Indenture, dated as of August 8, 2012, relating to the Companys 5.750% Senior Notes due 2022. | |
4.3 | Agreement Regarding Ownership Limited Waiver, dated October 4, 2012, between Entertainment Properties Trust and CBRE Clarion Securities LLC. | |
10.1 | Joinder Agreement, dated as of October 11, 2012, among the Joining Borrowers and Keybank National Association, in its capacity as administrative agent under the Amended and Restated Credit Agreement, dated as of October 31, 2011, among the Company, certain subsidiaries of the company, the Lenders referred to therein, Keybank National Association, as administrative agent, and certain other parties thereto. | |
10.2 | Joinder Agreement, dated as of October 11, 2012, among the Joining Borrowers and Keybank National Association, in its capacity as administrative agent under the Credit Agreement, dated as of January 5, 2012, among the Company, certain subsidiaries of the company, the Lenders referred to therein, Keybank National Association, as administrative agent, and certain other parties thereto. |
Exhibit 1.1
EXECUTION VERSION
5,000,000 Shares
6.625% Series F Cumulative Redeemable Preferred Shares
(Liquidation Preference $25.00 Per Share)
ENTERTAINMENT PROPERTIES TRUST
October 4, 2012
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
RBC Capital Markets, LLC
2 World Financial Center
200 Vesey Street
8th Floor
New York, NY 10281
as Representatives of the several Underwriters
Ladies/Gentlemen:
Entertainment Properties Trust, a Maryland real estate investment trust (the Company), proposes, subject to the terms and conditions stated herein, to issue and sell to Citigroup Global Markets Inc. (Citigroup), Merrill Lynch, Pierce, Fenner & Smith Incorporated (BAML), J.P. Morgan Securities LLC (JPM), RBC Capital Markets, LLC (RBC) and each of the underwriters named in Schedule I hereto (collectively the Underwriters, which term shall also include any underwriter substituted hereinafter provided in Section 2(c) hereof) for which BAML, Citigroup, JPM and RBC are acting as representatives (in such capacity, the Representatives) an aggregate of 5,000,000 shares (the Shares) of its 6.625% Series F Cumulative Redeemable Preferred Shares, par value $0.01 per share (liquidation preference $25.00 per share) (the Series F Preferred Shares), as set forth on Schedule I hereto. In certain circumstances, the Series F Preferred Shares will be convertible into the Companys common
shares of beneficial interest, par value $0.01 per share (the Common Shares), plus cash in lieu of fractional shares (the shares of Common Stock into which the Preferred Shares are convertible, the Conversion Shares).The dividend payment dates, redemption provisions, rank and other terms of the Series F Preferred Shares are set forth in the Articles Supplementary relating to the Series F Preferred Shares (the Articles Supplementary) to be filed with the State Department of Assessments and Taxation of the State of Maryland (the SDAT). The Representatives are acting as joint book-running managers in connection with the public offering of the Shares that the Underwriters intend to conduct (the Offering).
1. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, each of the Underwriters as of the date hereof, as of the Applicable Time (as defined below) and as of the Closing Date (as defined below) that:
(a) The Company has filed with the Securities and Exchange Commission (the Commission) an automatic shelf registration statement on Form S-3 (No. 333-165523) for the registration of common shares, preferred shares, depositary shares, warrants and debt securities, including the Shares, under the Securities Act of 1933, as amended (the Securities Act), and the offering thereof from time to time in accordance with Rule 430A or Rule 415 of the rules and regulations of the Commission under the Securities Act (the Securities Act Rules and Regulations), and the Company has filed such post-effective amendments thereto as may be required prior to the execution of this Agreement, including Post-Effective Amendment No. 1 to the Form S-3 filed on August 1, 2012. Such registration statement (as so amended, if applicable) automatically became effective under the Securities Act upon filing with the Commission. The registration statement and prospectus may have been amended or supplemented prior to the date of this Agreement; any such amendment or supplement was prepared and filed, and any such amendment, filed after the effective date of such registration statement has automatically become effective. No stop order suspending the effectiveness of the registration statement has been issued, and, to the knowledge of the Company, no proceeding for that purpose has been instituted or threatened by the Commission. A prospectus supplement (the Prospectus Supplement) to the base prospectus dated March 16, 2010 included as part of the registration statement (the Base Prospectus) setting forth the terms of the offering, sale and plan of distribution of the Shares and additional information concerning the Company and its business has been or will be prepared and filed (together with the prospectus included in the registration statement) in accordance with the provisions of Rule 430B of the Securities Act Rules and Regulations and pursuant to Rule 424(b) of the Securities Act Rules and Regulations on or before the second business day after the date hereof (or such earlier time as may be required by the Rules and Regulations). The registration statement, as it may have heretofore been amended at the time it became effective, including the information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the Securities Act Rules and Regulations or Rule 430B of the Securities Act Rules and Regulations, is referred to herein as the Registration Statement. Any Registration Statement filed by the Company pursuant to Rule 462(b) of the Securities Act is hereinafter called the Rule 462(b) Registration Statement and from and after the date and time of filing the Rule 462(b) Registration Statement, the term Registration Statement shall include the Rule 462(b) Registration Statement. The Base Prospectus, and the final Prospectus
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Supplement, in the form first furnished (electronically or otherwise) to the Underwriters for use in connection with the offering of the Shares (whether to meet the requests of purchasers pursuant to Rule 173 of the Securities Act Rules and Regulations or otherwise) or, if not furnished to the Underwriters, in the form first filed by the Company pursuant to Rule 424(b) of the Securities Act Rules and Regulations, together with the documents incorporated by reference therein pursuant to Item 12 of Form S-3 of the Securities Act, are herein called, collectively, the Prospectus. Copies of the Registration Statement and the Prospectus, any amendments or supplements thereto and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement (including one fully executed copy of the Registration Statement and of each amendment thereto) have been delivered to the Underwriters and their counsel. The Base Prospectus, and any preliminary Prospectus Supplement relating to the offering of the Shares (a Preliminary Prospectus Supplement), preliminary prospectus or prospectus subject to completion, in the form first furnished (electronically or otherwise) to the Underwriters for use in connection with the offering of the Shares or, if not furnished to the Underwriters, in the form filed as part of the Registration Statement as originally filed or first filed by the Company pursuant to Rule 424(b) under the Securities Act Rules and Regulations, together with the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, is hereafter called a Preliminary Prospectus. Issuer Free Writing Prospectus means any issuer free writing prospectus, as defined in Rule 433 of the Securities Act Rules and Regulations, relating to the Shares in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Companys records pursuant to Rule 433(g) of the Securities Act Rules and Regulations. General Use Issuer Free Writing Prospectus means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified as such in Schedule II to this Agreement, including the Final Term Sheet (as defined in Section 4(a) of this Agreement) included in Schedule II. Limited Use Issuer Free Writing Prospectus means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus. The Company has not used any issuer free writing prospectus, as defined in Rule 433 of the Securities Act Rules and Regulations, other than the General Use Issuer Free Writing Prospectus specified as such in Schedule II to this Agreement. Applicable Time means 5:15 p.m. (Eastern time) on October 4, 2012, or such other date and time agreed to by the Company and the Representatives. Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), on or before the effective date of the Registration Statement, the date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, and any reference herein to the terms amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the effective date of the Registration Statement, the date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, which is incorporated therein by reference and (ii) any such document so filed. For purposes of this Agreement, all references to the Registration Statement, the Prospectus, Prospectus Supplement, Preliminary Prospectus Supplement, Preliminary Prospectus or Issuer Free Writing Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Electronic Data Gathering Analysis and Retrieval System (EDGAR), and such copy shall be identical in content to any Prospectus delivered to the Underwriters for use in connection with the Offering.
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(b) Each part of the Registration Statement and any post-effective amendment thereto, when such part became or becomes effective (including at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations), at the date of the filing of the Companys most recent Annual Report on Form 10-K and at the Closing Date (as hereinafter defined), and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission, at the Closing Date, conformed or will conform in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations; each part of the Registration Statement and any post-effective amendment thereto, when such part became or becomes effective (including at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations), or when such part was or is filed with the Commission, or at the date of the filing of the Companys most recent Annual Report on Form 10-K, did not or will not contain an 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; the Prospectus and any amendment or supplement thereto, on the date of the filing thereof with the Commission and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. When any related Preliminary Prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) under the Securities Act) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the Rules and Regulations and did not contain an untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation and warranty is made in this subsection (b) however, with respect to any information contained in or omitted from the Registration Statement or the Prospectus or any related Preliminary Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters through the Representatives specifically for use therein. The parties acknowledge and agree that such information provided by or on behalf of the Underwriters through the Representatives consists solely of the fifth paragraph of the Underwriting section in the Prospectus Supplement (the Specified Information). The Company has not distributed, and prior to the later of the Closing Date and the completion of the distribution of the Shares, will not distribute, any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Preliminary Prospectus Supplement, the Prospectus or any other materials, if any, permitted by the Securities Act (which were disclosed to the Underwriters and Underwriter Counsel and are listed on Schedule II hereof other than documents referred to in clause (C) of Section 1(d)).
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(c) (i) (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto, if any, for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act Rules and Regulations) made any offer relating to the Shares in reliance on the exemption provided by Rule 163 of the Securities Act Rules and Regulations and (D) at the date hereof, the Company was and is a well-known seasoned issuer as defined in Rule 405 of the Securities Act Rules and Regulations (Rule 405). At the time of filing the Registration Statement and at the date of this Agreement, the Company was not and is not an ineligible issuer as defined in Rule 405, including as a result of (x) the Company or any subsidiary of the Company in the preceding three years having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (y) the Company in the preceding three years having been the subject of a bankruptcy petition or insolvency or similar proceeding, having had a registration statement be the subject of a proceeding under Section 8 of the Securities Act or being the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares, all as described in Rule 405. The Company has not received from the Commission any notice pursuant to the Securities Act Rules and Regulations objecting to the use of the automatic shelf registration statement form. The Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on an automatic shelf registration statement as defined under Rule 405.
(d) As of the Applicable Time, neither (i) (A) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, (B) the Preliminary Prospectus or latest prospectus supplement included in the Registration Statement and (C) the documents mutually agreed to by the Company and the Representatives in a writing specifically referencing this clause (C) of Section 1(d) considered together (collectively, the General Disclosure Package), nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements contained in or omitted from any prospectus included in the Registration Statement or any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters through the Representatives specifically for use therein. The parties acknowledge and agree that such information provided by or on behalf of the Underwriters through the Representatives consists solely of the Specified Information.
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(e) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Shares or until any earlier date that the Company notified or notifies the Underwriters as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement or the Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) the Company has promptly notified or will promptly notify the Underwriters and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements contained in or omitted from any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters through the Representatives specifically for use therein. The parties acknowledge and agree that such information provided by or on behalf of the Underwriters through the Representatives consists solely of the Specified Information.
(f) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, at the time they became or become effective or were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission under the Exchange Act (the Exchange Act Rules and Regulations and, together with the Securities Act Rules and Regulations, the Rules and Regulations) and, when read together with the other information in the Preliminary Prospectus and the Prospectus, at the time the Registration Statement and any amendments thereto become effective, at the Applicable Time, at the date of the Prospectus and at the Closing Date, did not and will not contain an 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, in the light of the circumstances under which they were made, not misleading.
(g) KPMG LLP, which has certified certain of the financial statements and supporting schedules and information incorporated by reference in the Registration Statement is and, during the periods covered by their reports incorporated by reference in the Registration Statement, was an independent registered public accounting firm as required by the Securities Act, the Exchange Act, the Rules and Regulations and the PCAOB, except to the extent that registration with the PCAOB was not required thereunder during an applicable period, in which case KPMG LLP consisted of independent public accountants as required by the Securities Act, the Exchange Act and the Rules and Regulations then in effect. KPMG LLP has not notified the Company, the Companys board of trustees or the audit committee of the board of trustees of any illegal acts that are required to be reported pursuant to Section 10A of the Exchange Act.
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(h) Subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package (including as of the Applicable Time) and the Prospectus, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, (i) there has been no change in the earnings, assets, properties, business, results of operations, shareholders equity, prospects, affairs or condition (financial or otherwise) of the Company and each subsidiary of the Company listed on Exhibit A hereto (the Subsidiaries), taken as a whole, which has had or would reasonably be expected to have a Material Adverse Effect (as defined in Section 1(n) below), (ii) there has been no casualty, loss, condemnation or other adverse event with respect to any property or interest therein owned, directly or indirectly, by the Company or any Subsidiary which has had or would reasonably be expected to have a Material Adverse Effect, (iii) there have been no transactions entered into by the Company or any Subsidiary, other than those in the ordinary course of business, which are material with respect to the Company and the Subsidiaries taken as a whole, (iv) except for regular quarterly distributions on the Common Shares, 5.75% Series C Cumulative Convertible Preferred Shares of Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the Series C Preferred Shares), 7.375% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the Series D Preferred Shares) and 9.00% Series E Cumulative Convertible Preferred Shares of Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the Series E Preferred Shares), which have been publicly announced through the date of this Agreement, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares of beneficial interest, and (v) there has been no material increase in long-term debt or decrease in the capital of the Company or the Subsidiaries, taken as a whole, other than in the ordinary course of their businesses (each, a Material Adverse Change). Since the date of the latest balance sheet presented in the Registration Statement, Preliminary Prospectus and the Prospectus, neither the Company nor any of the Subsidiaries has incurred or undertaken any liabilities or obligations, direct or contingent, or entered into any transactions which are material to the Company and the Subsidiaries, taken as a whole, except for liabilities, obligations and transactions which are reflected in the Registration Statement, the General Disclosure Package and the Prospectus.
(i) This Agreement and the transactions contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by the Company and this Agreement has been duly and validly executed and delivered by the Company.
(j) The Articles Supplementary has been, or by the Closing Date will be, duly authorized and executed by the Company and filed by the Company with the SDAT.
(k) The execution, delivery, and performance of this Agreement and the Articles Supplementary by the Company and the consummation of the transactions contemplated by this Agreement, the Articles Supplementary, the Registration Statement and the Prospectus (including the issuance and sale of the Shares, the issuance of any Conversion Shares
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initially issuable by the Company upon conversion of the Preferred Shares in accordance with the terms of the Articles Supplementary and the use of proceeds from the sale of the Shares as described under the caption Use of Proceeds) do not and will not (i) conflict with, require consent under or result in a breach of any of the terms and provisions of, or constitute a Repayment Event (as defined below) or default (or an event which with notice or lapse of time, or both, would constitute a Repayment Event or default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement, instrument, franchise, license or permit to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or their respective properties, operations or assets may be bound or (ii) violate or conflict with (A) any provision of the declaration of trust, certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, partnership agreement or any other organizational document of the Company or any of the Subsidiaries or (B) any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body, domestic or foreign, having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties, operations or assets, except, with respect to clause (i) and clause (ii)(B), for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect. As used herein, Repayment Event means any event or condition that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary. No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency or body, domestic or foreign, having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties, operations or assets, or any third party, is required for the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement, the Registration Statement and the Prospectus, including the issuance, sale and delivery of the Shares to be issued, sold and delivered hereunder, the issuance of any Conversion Shares initially issuable by the Company upon conversion of the Preferred Shares in accordance with the terms of the Articles Supplementary, and compliance with the provisions of the Articles Supplementary, except the registration under the Securities Act of the Shares, filings with the New York Stock Exchange and the Commission of the Prospectus, and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, each of which has been obtained.
(l) The authorized, issued and outstanding shares of beneficial interest of the Company is as set forth in the General Disclosure Package and the Prospectus in the columns entitled Actual and As Adjusted under the caption Capitalization and, after giving effect to the Offering and the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus, will be, as of the date indicated and as set forth in the column entitled As Further Adjusted under the caption Capitalization. There is no class or series of shares of beneficial interest of the Company authorized other than the Common Shares,
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9.50% Series A Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share), 7.75% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share), Series C Preferred Shares, Series D Preferred Shares and Series E Preferred Shares. There is no class or series of shares of beneficial interest of the Company issued or outstanding other than the Common Shares, Series C Preferred Shares, Series D Preferred Shares and Series E Preferred Shares. All of the issued and outstanding shares of beneficial interest of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and were not issued in violation of or subject to any preemptive or similar rights arising by operation of law under the organizational documents of the Company or under any agreement to which the Company or any of its subsidiaries is a party or otherwise that entitle or will entitle any person to acquire from the Company or any Subsidiary upon the issuance or sale thereof any Common Shares, Series C Preferred Shares, Series D Preferred Shares, Series E Preferred Shares, any other equity security of the Company or any Subsidiaries and any security convertible into, or exercisable or exchangeable for, any Common Shares, Series C Preferred Shares Series D Preferred Shares, Series E Preferred Shares or other such equity security (any Relevant Security). The Shares to be delivered on the Closing Date have been duly and validly authorized for issuance and sale pursuant to this Agreement and, when delivered in accordance with this Agreement against payment of the consideration therefor specified in this Agreement, will be duly and validly issued, fully paid and non-assessable, and will not have been issued in violation of or subject to any preemptive or similar rights that entitle or will entitle any person to acquire any Relevant Security from the Company or any Subsidiary upon issuance or sale of Shares in the Offering. The Conversion Shares initially issuable upon the conversion of the Series F Preferred Shares in accordance with the Articles Supplementary have been duly authorized and reserved for issuance and, if and to the extent that the Conversion Shares are issued upon the conversion of such Shares in accordance with the terms of the Articles Supplementary, the Conversion Shares will be duly and validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights that entitle or will entitle any person to acquire any Relevant Security from the Company or any Subsidiary. The Common Shares, Series C Preferred Shares, Series D Preferred Shares and Series E Preferred Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus, and such description conforms to the rights set forth in the instruments defining the same. The Shares conform to the provisions of the Articles Supplementary and the relative rights, preferences, interests and powers of such Shares are as set forth in the Articles Supplementary. The Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus. The forms of share certificate to be used to evidence the Shares and the Conversion Shares will be in due and proper form and will comply with all applicable legal requirements. Except as disclosed in or specifically contemplated by the General Disclosure Package and the Prospectus, and except for restricted Common Shares or options to purchase Common Shares to be granted to the Companys non-employee trustees pursuant to the Companys 1997 Share Incentive Plan and 2007 Equity Incentive Plan and Common Shares to be issued in respect thereof, there are no shares of beneficial interest of the Company reserved for any purpose and there are no
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outstanding securities convertible into or exchangeable for any shares of beneficial interest of the Company and neither the Company nor any Subsidiary has outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, or any contracts or commitments to issue or sell, any Relevant Security. The holders of the Shares or the Conversion Shares will not be subject to liability by reason of being such holders.
(m) The Subsidiaries listed on Exhibit A hereto are the only subsidiaries of the Company within the meaning of Rule 405. Except for the Subsidiaries and Atlantic-EPR I, a Delaware general partnership (in which the Company owned a 42.1% interest at June 30, 2012), Atlantic-EPR II, a Delaware general partnership (in which the Company owned a 29.6% interest at June 30, 2012), Cantera 30 Theatre, L.P. (in which AtlanticEPR I holds a 99% limited partner interest) and Tampa Veterans 24, L.P. (in which AtlanticEPR II holds a 99.9% limited partner interest), the Company owns no ownership or other beneficial interest, directly or indirectly, in any corporation, partnership, joint venture or other business entity. All of the issued shares of capital stock of or other ownership interest in each of the Subsidiaries have been duly and validly authorized and issued and are fully paid and non-assessable and, except as set forth on Exhibit A hereto, are owned directly or indirectly by the Company free and clear of all liens, encumbrances, equities or claims.
(n) Each of the Company and the Subsidiaries has been duly organized and validly exists as a real estate investment trust, corporation, business trust, partnership or limited liability company in good standing under the laws of its jurisdiction of organization. Each of the Company and the Subsidiaries is duly qualified to do business and is in good standing as a foreign trust, corporation, partnership or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which could not reasonably be expected to (individually or when aggregated with other such instances) have a material adverse effect on (i) the earnings, assets, business, condition (financial or otherwise), results of operations, shareholders equity, properties, affairs or prospects of the Company and the Subsidiaries, taken as a whole; (ii) the long-term debt, shares of beneficial interest or capital stock of the Company and any of its Subsidiaries, taken as a whole; or (iii) the Offering or consummation of any of the other transactions contemplated by this Agreement, the Registration Statement and the Prospectus (a Material Adverse Effect). Each of the Company and the Subsidiaries has all requisite power and authority, and all necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits (collectively, the Consents) of and from all public, regulatory or governmental agencies and bodies and third parties, foreign and domestic, to own, hold, lease and operate its properties and conduct its business as it is now being conducted and as described in the Registration Statement, the General Disclosure Package and the Prospectus, except where the failure to possess such Consent could not reasonably be expected to have a Material Adverse Effect, and each such Consent is valid and in full force and effect, and neither the Company nor any of the Subsidiaries has received notice of any investigation or proceedings which could result in the revocation of any such Consent. Each of the Company and the Subsidiaries is in compliance with all applicable laws, rules, regulations, ordinances and
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directives, except where failure to be in compliance could not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of its declaration of trust, certificate or articles of incorporation, by-laws, certificate of formation, limited liability company agreement, partnership agreement or any other organizational document. The Company and Subsidiaries are not in default (or with notice or lapse of time, or both, would be in default) under any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or evidence of indebtedness, lease, contract or other agreement or instrument to which they are a party or by which they or any of their properties or other assets are bound, violation of which would individually or in the aggregate have a Material Adverse Effect, and, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, no other party under any such agreement or instrument to which the Company or the Subsidiaries are a party is, to the knowledge of the Company, in default (or with notice or lapse of time, or both, would be in default) in any material respect thereunder.
(o) Except as described in the General Disclosure Package and the Prospectus, there is no litigation or legal, governmental or regulatory proceeding or, to the knowledge of the Company, any legal, governmental or regulatory investigation to which the Company or any of the Subsidiaries or any of their respective officers or trustees/directors is a party or of which any property or operations of the Company or any of the Subsidiaries is the subject which, individually or in the aggregate, if determined adversely to the Company or any of the Subsidiaries (or any of their respective officers or trustees/directors), could reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company, no such proceeding or litigation is threatened or contemplated by any legal, governmental or regulatory authority or other third party, foreign or domestic.
(p) The consolidated financial statements of the Company, included or incorporated by reference, in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, as well as those financial statements, schedules or notes of any other entity included therein, present fairly, in all material respects, the financial position as of the dates indicated and the results of operations, changes in shareholders equity and cash flows for the periods therein specified of the Company and its consolidated Subsidiaries or of the respective entity or entities or group presented therein; except as otherwise stated in the Registration Statement, the General Disclosure Package and the Prospectus, said financial statements, notes and schedules have been prepared in conformity with generally accepted accounting principles (GAAP) applied on a consistent basis throughout the periods involved and present fairly the information required to be stated therein. The other financial and statistical information and data included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus present fairly, in all material respects, the information included therein and have been prepared on a basis consistent with that of the financial statements that are included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus and the books and records of the respective entities presented therein, and comply with the applicable requirements of Regulation G of the Commission. The interactive data in eXtensbile Business Reporting Language included
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or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package fairly presents the information called for in all material respects and is prepared, in all material respects, in accordance with the Commissions rules and guidelines applicable thereto.
(q) Any pro forma or as adjusted financial information and the related notes thereto included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commissions rules and the guidelines of the American Institute of Certified Public Accountants with respect to pro forma information and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are, in the opinion of the Company, reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All historical financial statements and information and all pro forma financial statements and information required by the Securities Act, the Exchange Act and the Rules and Regulations are included, or incorporated by reference, in the Registration Statement, the General Disclosure Package and the Prospectus.
(r) The statistical and market-related data included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate, and such data agree with the sources from which they are derived.
(s) There are no contracts or other documents (including, without limitation, any voting agreement), which are required to be described in the Registration Statement, the General Disclosure Package and the Prospectus or filed as exhibits to the Registration Statement by the Securities Act, the Exchange Act or the Rules and Regulations and which have not been so described or filed. All of the contracts to which any of the Company or the Subsidiaries is a party and which are material to the business and operations of the Company and the Subsidiaries, taken as a whole, (i) have been duly authorized, executed and delivered by such entity, constitute valid and binding agreements of such entity and are enforceable against such entity in accordance with the terms thereof, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization or similar other laws affecting creditors rights generally and (B) general equity principles and limitations on the availability of equitable relief, or (ii) in the case of any contract to be executed on or before the Closing Date, will on the Closing Date be duly authorized, executed and delivered by the Company and/or a Subsidiary, and constitute valid and binding agreements of such entity enforceable against each entity in accordance with the terms thereof, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization or similar other laws affecting creditors rights generally and (B) general equity principles and limitations on the availability of equitable relief.
(t) The Common Shares, Series C Preferred Shares, Series D Preferred Shares and Series E Preferred Shares are registered pursuant to Section 12(b) of the Exchange Act and the outstanding Common Shares, Series C Preferred Shares, Series D Preferred Shares and Series E Preferred Shares are listed on The New York Stock Exchange and
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the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Shares, Series C Preferred Shares, Series D Preferred Shares or Series E Preferred Shares under the Exchange Act or de-listing the Common Shares, Series C Preferred Shares, Series D Preferred Shares or Series E Preferred Shares from The New York Stock Exchange, nor has the Company received any notification that the Commission or The New York Stock Exchange is contemplating terminating such registrations or listings. The Shares have been submitted for listing on The New York Stock Exchange, subject to official notice of issuance.
(u) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no holder of securities of the Company has any registration or similar rights to require registration of any debt or equity security of the Company as part or on account of, or otherwise in connection with, the sale of the Shares contemplated hereby, and any such rights so disclosed have either been fully complied with by the Company or effectively waived by the holders thereof, and any such waivers remain in full force and effect.
(v) Neither the Company nor any of its affiliates has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act, or that is designed to cause or result in, or which might reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(w) Neither the Company nor its affiliates (as defined in Rule 501(b) of Regulation D) has prior to the date hereof offered or sold any securities which would be integrated with the offer and sale of the Shares pursuant to the Registration Statement. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus (and pursuant to the Companys dividend reinvestment plan, as in effect on the date hereof), the Company and any affiliate has not sold or issued any Relevant Security during the six-month period preceding the date of the Prospectus, including but not limited to any sales pursuant to Rule 144A or Regulation D or S under the Securities Act, other than Common Shares issued pursuant to employee benefit plans, qualified stock option plans or the employee compensation plans or pursuant to outstanding options, rights or warrants as described in the General Disclosure Package and the Prospectus.
(x) There are no direct or indirect business relationships or related party transactions (including those contemplated by Item 404 of Regulation S-K under the Securities Act) involving the Company or any subsidiary or affiliate or any other person required by the Securities Act, the Exchange Act, the Rules and Regulations or the rules and regulations of The New York Stock Exchange or the FINRA (as defined below) to be described in the Registration Statement, the General Disclosure Package or the Prospectus which is not so described or is not described as required. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers, directors or trustees of the Company or its subsidiaries which are required to by the Securities Act, the Exchange Act or
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the Rules and Regulations to be described in the Registration Statement, the General Disclosure Package or the Prospectus which are not so described or not described as required. Neither the Company nor any of its subsidiaries has, in violation of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act), directly or indirectly, extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director, trustee or executive officer (or any family member or affiliate thereof) of the Company or any Subsidiary.
(y) The Company and its Subsidiaries (i) make and keep accurate books and records, and (ii) maintain systems of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting. The Company and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with managements general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets, (C) access to assets is permitted only in accordance with managements general or specific authorization, (D) the recorded accounting for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (E) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared, in all material respects, in accordance with the Commissions rules and guidelines applicable thereto. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the Exchange Act) that (i) are designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Companys Chief Executive Officer and its Chief Financial Officer, (ii) are effective to perform the functions for which they were established, and (iii) have been evaluated for effectiveness as of the end of the period covered by the Companys most recent Annual Report on Form 10-K filed with the Commission. The principal executive officers (or their equivalents) and principal financial officers (or their equivalents) of the Company have made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act and any related rules and regulations of the Commission, and the statements contained in any such certification were correct when made. Based on an evaluation of its disclosure controls and procedures, the Company is not aware of (i) any significant deficiency in the design or operation of internal controls which could adversely affect the Companys ability to record, process, summarize and report financial data or any material weakness in internal controls; or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal controls. Since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
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(z) The conditions for use of Form S-3, as set forth in the General Instructions thereto, have been satisfied.
(aa) Each of the Company and the Subsidiaries is not and, at all times up to and including consummation of the transactions contemplated by this Agreement, the Registration Statement and the Prospectus, and after giving effect to the application of the net proceeds of the Offering, will not be, subject to registration as an investment company under the Investment Company Act of 1940, as amended (the 40 Act), and is not and will not be an entity controlled by an investment company within the meaning of the 1940 Act.
(bb) The Company and the Subsidiaries have good and marketable title in fee simple to, or a valid and enforceable ground leasehold interest in, all real property and good title to all personal property owned by the Company and the Subsidiaries, in each case free and clear of all liens, encumbrances and defects (Liens) except (i) such Liens that are described in the Registration Statement, the General Disclosure Package and the Prospectus, (ii) such Liens that do not (individually or in the aggregate) materially interfere with the use made or proposed to be made of such property by the Company and the Subsidiaries, (iii) such Liens permitted under the Companys existing credit facilities and loan documents, or (iv) such Liens that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and any real property and buildings held under lease or sublease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Subsidiaries. Neither the Company nor any of the Subsidiaries has received any notice of any claim adverse to its ownership or leasing of any real or personal property or of any claim against the continued possession of any real property, whether owned or held under lease or sublease by the Company or any of the Subsidiaries that has had or would reasonably be expected to have a Material Adverse Effect. All liens, charges, encumbrances, claims or restrictions on or affecting any of the properties or the assets of the Company and the Subsidiaries which are required to be disclosed in the General Disclosure Package and the Prospectus are disclosed therein. No tenant under any of the leases pursuant to which the Company or any Subsidiary leases its property has an option or right of first refusal to purchase the premises demised under such lease, the exercise of which would have a Material Adverse Effect. The use and occupancy of each of the properties of the Company and the Subsidiaries comply in all material respects with all applicable codes and zoning laws and regulations. The Company and the Subsidiaries have no knowledge of any pending or threatened condemnation or zoning change that will in any material respect affect the size of, use of, improvement of, construction on, or access to any of the properties of the Company or the Subsidiaries. The Company and the Subsidiaries have no knowledge of any pending or threatened proceeding or action that will in any manner materially affect the size of, use of, improvements or construction on, or access to any of the properties of the Company or the Subsidiaries. The property purchase agreements described in the General Disclosure Package and the Prospectus have been duly authorized, executed and delivered by the Company, have been executed by the other parties thereto, and constitute binding obligations of the Company. The descriptions of the property purchase agreements contained in the General Disclosure Package and the Prospectus are accurate in all material respects.
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(cc) The Company and each of the Subsidiaries owns or possesses adequate right to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, formulae, customer lists, and know-how and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as being conducted and as described in the Registration Statement, the General Disclosure Package and Prospectus and have no reason to believe that the conduct of their respective businesses does or will conflict with, and have not received any notice of any claim of conflict with, any such right of others. There is no infringement by third parties of any such intellectual property; there is no pending or, to the Companys knowledge, threatened action, suit, proceeding or claim by others challenging the Companys or any Subsidiarys rights in or to any such intellectual property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; and there is no pending or, to the Companys knowledge, threatened action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would form a reasonable basis for any such claim.
(dd) Except for (i) the failure to pay any taxes that are currently being contested in good faith by appropriate proceedings and for which the Company has adequate reserves in accordance with GAAP or (ii) the failure to file any tax returns or the failure to pay any taxes which would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, each of the Company and the Subsidiaries has accurately prepared and timely filed all federal, state and other tax returns that are required to be filed by it and has paid or made provision for the payment of all taxes, assessments, governmental or other similar charges, including without limitation, all sales and use taxes and all taxes which the Company and each of the Subsidiaries is obligated to withhold from amounts owing to employees, creditors and third parties, with respect to the periods covered by such tax returns (whether or not such amounts are shown as due on any tax return). No deficiency assessment with respect to a proposed adjustment of the Companys or any of the Subsidiaries federal, state, or other taxes that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect is pending or, to the knowledge of the Company, threatened. There is no tax lien, whether imposed by any federal, state or other taxing authority, that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect outstanding against the assets, properties or business of the Company or any of the Subsidiaries. To the knowledge of the Company, there are no tax returns of the Company or any of the Subsidiaries that are currently being audited by state, local or Federal taxing authorities or agencies which would have a Material Adverse Effect.
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(ee) Neither the Company nor any of the Subsidiaries nor, to the Companys knowledge, any of their employees or agents has at any time during the last five years (i) made, on behalf of the Company, any unlawful contribution to any candidate for foreign office, or failed to disclose fully any contribution in violation of law or (ii) made any payment to any federal or state governmental officer or official, or other person charged with similar public or quasi-public duties, other than payments required or permitted by the laws of the United States of any jurisdiction thereof.
(ff) No labor disturbance by the employees of the Company or any of the Subsidiaries exists or, to the Companys knowledge, is imminent and the Company is not aware of any existing or imminent labor disturbance by the employees of any of the Companys or any Subsidiarys principal suppliers, manufacturers, customers or contractors, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(gg) No prohibited transaction (as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (ERISA), or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the Code), or a failure to satisfy the minimum funding standard under Section 412 of the Code, whether or not waived, or any of the events set forth in Section 4043(b) of ERISA (other than events with respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) has occurred with respect to any employee benefit plan which could reasonably be expected to have a Material Adverse Effect; each employee benefit plan is in compliance in all material respects with applicable law; including ERISA (to the extent applicable) and the Code; the Company has not incurred and does not expect to incur liability under Title IV of ERISA with respect to the termination of, or withdrawal from any pension plan; and each pension plan (as defined in ERISA) for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which could cause the loss of such qualification.
(hh) Except as would not, singularly or in the aggregate, have a Material Adverse Effect, (i) to the Companys knowledge, there does not exist on any of the properties described in the General Disclosure Package and the Prospectus any Hazardous Materials (as hereinafter defined) in unlawful quantities, (ii) to the Companys knowledge, there has not occurred on or from such properties any unlawful spills, releases, discharges or disposal of Hazardous Materials, (iii) the Company and the Subsidiaries have not failed to comply with all applicable local, state and Federal laws, regulations, ordinances and administrative and judicial orders relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of Hazardous Materials or to the generation, manufacture, processing, recycling, distribution, use, treatment, sale, storage, disposal, transport or handling of Hazardous Materials (collectively, Environmental Laws), (iv) the Company and its Subsidiaries have (to the extent not maintained by the applicable tenants) all permits, authorizations and approvals required under any applicable Environmental Laws and all are in compliance with their requirements, (v) there are no pending administrative, regulatory or judicial actions, suits, demands, demand
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letters, claims, liens, notices of noncompliance or violation, or proceedings or, to the Companys knowledge, investigations or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, or proceedings pursuant to any Environmental Law against the Company or any of its Subsidiaries, and (vi) to the Companys knowledge, there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against the Company, any Subsidiary or any of their assets relating to any Hazardous Materials or the violation of any Environmental Laws.
As used herein, Hazardous Material shall include, without limitation, any flammable explosives, radioactive materials, oil, petroleum, petroleum products, hazardous materials, hazardous wastes, hazardous or toxic substances, asbestos or any material as defined by any environmental laws, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) (CERCLA), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901, et seq.), and in the regulations adopted pursuant to each of the foregoing or by any Federal, state or local governmental authority having jurisdiction over the properties as described in the Prospectus.
All of the properties of the Company and the Subsidiaries have been, and it is contemplated that all future acquisitions will be, subjected to a Phase I or similar environmental assessment (which generally includes a site inspection, interviews and a records review, but no subsurface sampling). These assessments and follow-up investigations, if any, of the properties (including, as appropriate, asbestos, radon and lead surveys, additional public record review, subsurface sampling and other testing), of the properties have not revealed any environmental liability that the Company believes would have a Material Adverse Effect. The Company has not agreed to assume, undertake or provide indemnification (except as may extend to lenders to the Company who finance the acquisition of real property or the refinancing thereof) for any liability of any other person under any environmental law, including any obligation for cleanup or remedial action, except as could not reasonably be expected to have a Material Adverse Effect.
(ii) The Company is organized in conformity with the requirements for qualification as a real estate investment trust (REIT) under the Code, and the Companys current and proposed method of operation enables it to meet the requirements for qualification and taxation as a real estate investment trust under the Code. The Company has qualified and continues to qualify and has taken all necessary action to be treated, effective beginning with the year ended December 31, 1997, as a REIT under the Code, and the Companys organization and current and proposed method of operation will enable it to continue to qualify as a REIT for its taxable year ending December 31, 2012, and in the future. All subsidiary partnerships, joint ventures, limited liability companies and entities intended to qualify as qualified REIT subsidiaries within the meaning of Section 856(i)(2) of the Code (excluding taxable REIT
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subsidiaries) have been since their respective formations, and continue to be, treated as partnerships, disregarded entities or qualified REIT subsidiaries for federal income tax purposes and not as corporations or associations taxable as corporations or publicly traded partnerships. The Company has no present intention of changing its operations or engaging in activities which would cause it to fail to qualify, or make economically undesirable its continued qualification, as a REIT.
(jj) Title insurance in favor of the Company and the Subsidiaries is maintained with respect to each of the properties described in the General Disclosure Package and the Prospectus in an amount at least equal to the cost of acquisition of such property.
(kk) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and any amendment or supplement thereto, there are no mortgages or deeds of trust encumbering any of the properties described in the General Disclosure Package and the Prospectus. The mortgages encumbering the properties are not convertible into any equity securities of the Company, nor does the Company or any of the Subsidiaries hold a participating interest therein and, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and any amendment or supplement thereto, such mortgages are not cross defaulted to or cross-collateralized by any party other than the Company and the Subsidiaries.
(ll) The Company has and maintains, or its tenants are required to have and maintain, property and casualty insurance in favor of the Company and the Subsidiaries with respect to such entities and each of the properties owned, directly or indirectly, by the Company, in an amount and on such terms as is reasonable and customary for the businesses of the type proposed to be conducted by the Company and the Subsidiaries. Neither the Company nor any of the Subsidiaries has received from any insurance company written notice of any material defects or deficiencies affecting the insurability of any such properties or written notice that any property or casualty insurance provided by tenants is subject to any material defects or deficiencies affecting the insurability of any such properties or has been cancelled or suspended.
(mm) Except as otherwise disclosed in or incorporated by reference in the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness by the Company or any of the Subsidiaries to or for the benefit of any of the officers, trustees or directors of the Company or any of the Subsidiaries or any of the members of the families of any of them.
(nn) To the knowledge of the Company, each of the properties described in the General Disclosure Package and the Prospectus is in compliance with all presently applicable provisions of the Americans with Disabilities Act, except for any failures to comply which would not, singly or in the aggregate, result in a Material Adverse Effect.
(oo) The Company has not incurred any liability for any finders fees or similar payments in connection with the transactions herein contemplated except as may otherwise exist with respect to the Underwriters pursuant to this Agreement.
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(pp) No person who is a trustee of the Company or is an officer of the Company, and to the Companys knowledge, no person who in the aggregate beneficially owns 5% or more of the Companys Common Shares (a Beneficial Owner), is a member of the Financial Industry Regulatory Authority (FINRA), a controlling stockholder of a member, or an affiliate of a member, or of an underwriter or related person of a member or underwriter, in each case with respect to any proposed offering under this Agreement. No beneficial owner of the Companys unregistered securities acquired within the 12 months prior to the filing of the Registration Statement, or any amendments thereto, or to the filing of the General Disclosure Package, the Prospectus, or any amendment or supplement thereto, has any direct or indirect affiliation or association with any FINRA member.
(qq) The Company and its directors and officers are in compliance with all presently applicable provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder and is actively taking steps to ensure that it will be in compliance with other applicable provisions of the Sarbanes-Oxley Act upon the effectiveness of such provisions.
(rr) The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of the Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ss) None of the Company, any of the Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and the Company will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(tt) Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the FCPA), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any
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candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(uu) No Subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such Subsidiarys capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiarys properties or assets to the Company or any other Subsidiary of the Company.
(vv) Neither the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the Company as described in each of the General Disclosure Package and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(ww) No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in any of the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
Any certificate signed by or on behalf of the Company and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter severally and not jointly, and each Underwriter severally and not jointly agrees to purchase from the Company at a purchase price per share of $24.2125, the number of Shares set forth in Schedule I opposite the name of such Underwriter, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 2(c) hereof.
(b) Payment of the purchase price for, and delivery of (including any certificates representing), the Shares shall be made at the office of Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004 (Underwriter Counsel), or at such other place as shall be agreed upon by the Representatives and the Company, at 10:00 A.M., New York City time, on the fifth business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the terms of this Agreement) following the effective date of this Agreement or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of
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payment and delivery being herein called the Closing Date). It is understood that each Underwriter has authorized the Representatives, for its own account, to accept delivery of, receipt for, and make payment of the purchase price for the Shares which it has agreed to purchase.
Payment of the purchase price for the Shares shall be made by wire transfer in same day funds to the Company at the bank account designated in writing by the Company at least one business day prior to the Closing Date, upon delivery of the Shares to the Representatives through the facilities of The Depository Trust Company (DTC) for the respective accounts of the Underwriters. The Shares (including the certificates representing the Shares, if any) shall be registered in such name or names and shall be in such denominations as the Representatives may request at least two business days before the Closing Date. The Company will permit the Representatives to examine and package the certificates representing the Shares, if any, for delivery at least one full business day prior to the Closing Date.
(c) If one of the Underwriters shall fail at the Closing Date to purchase the Shares which it is obligated to purchase under this Agreement (the Defaulted Shares), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for itself, or the non-defaulting Underwriter, or any other Underwriter, to purchase all, but not less than all, of the Defaulted Shares in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(i) if the number of the Defaulted Shares does not exceed 10% of the number of Shares to be purchased on such date, the non-defaulting Underwriters shall be obligated to purchase the full amount thereof (in proportion to the number of Shares set forth opposite their respective names in Schedule I hereto); or
(ii) if the number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 2(c) shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in termination of this Agreement, either the non-defaulting Underwriter or the Company shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the opinion of Underwriter Counsel, may thereby be made necessary or advisable. The term Underwriter as used in this Agreement shall include any party substituted under this Section 2(c) with like effect as if it had originally been a party to this Agreement with respect to such Shares.
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3. Offering. Upon authorization of the release of the Shares by the Representatives, the Underwriters propose to offer the Shares for sale to the public upon the terms and conditions set forth in the General Disclosure Package and the Prospectus Supplement.
4. Covenants of the Company. The Company covenants and agrees with each Underwriter that:
(a) The Company will cause the Prospectus (including any Preliminary Prospectus Supplement and Prospectus Supplement) to be prepared and filed as required by Section 1(a) hereof (but only if the Underwriters or Underwriter Counsel have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify the Underwriters promptly of such filing. The Company will prepare a final term sheet (the Final Term Sheet) reflecting the final terms of the Shares, in form and substance satisfactory to the Underwriters, and shall file such Final Term Sheet as an issuer free writing prospectus pursuant to Rule 433 as soon as practicable following the execution of this Agreement; provided that the Company shall furnish the Underwriters with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Underwriters or Underwriter Counsel shall object.
(b) During the period (beginning on the Applicable Time) in which a prospectus relating to the Shares is required to be delivered under the Securities Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriters promptly of the time when any subsequent amendment to the Registration Statement has become effective or any Preliminary Prospectus Supplement or Prospectus Supplement or other amendment or supplement to the Prospectus or any Issuer Free Writing Prospectus has been filed, or of any request by the Commission for any amendment or supplement to the Registration Statement, the Preliminary Prospectus Supplement or the Prospectus or for additional information. The Company will prepare and file with the Commission, promptly upon the Underwriters request, any amendments or supplements to the Registration Statement, the General Disclosure Package or the Prospectus that, in the Underwriters opinion, may be necessary or advisable in connection with the Underwriters distribution of the Shares; and the Company will file no Issuer Free Writing Prospectus or any amendment or supplement to the Registration Statement, the General Disclosure Package or the Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the Representatives or Underwriter Counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(c) The Company will advise the Underwriters, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification or registration of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
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(d) The Company shall comply with the Securities Act, the Exchange Act and the Rules and Regulations to permit completion of the distribution as contemplated in this Agreement, the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act or the Exchange Act in connection with the sales of Shares, any event shall have occurred or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an 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, to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or to amend or supplement the General Disclosure Package or any Limited Use Issuer Free Writing Prospectus in order that the General Disclosure Package and any Limited Use Issuer Free Writing Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances, or if it shall be necessary, in the reasonable opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus, the General Disclosure Package or any Limited Use Issuer Free Writing Prospectus in order to comply with the requirements of the Securities Act, Exchange Act or the Rules and Regulations, the Company will promptly notify the Underwriters and prepare and file with the Commission (to the extent required by applicable law), subject to Sections 4(a) and (b), such amendment or supplement (in form and substance reasonably satisfactory to Underwriter Counsel) as may be necessary to correct such statement or omission or to make the Registration Statement, the Prospectus, the General Disclosure Package or any Limited Use Issuer Free Writing Prospectus comply with such requirements. The Company will use its best efforts to have any amendment to the Registration Statement be declared effective as soon as possible, and the Company will furnish to the Underwriters and Underwriter Counsel, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(e) The Company will promptly deliver to each of you and Underwriter Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Companys files manually signed copies of such documents for at least five years after the date of filing. The Company will promptly deliver to each Underwriter such number of copies of any Issuer Free Writing Prospectus, Preliminary Prospectus, Preliminary Prospectus Supplement, the Prospectus Supplement, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as such Underwriter may reasonably request. Prior to 10:00 A.M., New York time, on the business day
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next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish each Underwriter with copies of the Prospectus in New York City in such quantities as such Underwriter may reasonably request. If applicable, copies of any Issuer Free Writing Prospectus and the Preliminary Prospectus, Preliminary Prospectus Supplement, Prospectus, Registration Statement and General Disclosure Package, and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f) The Company will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the date that the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158) covering a period of twelve months beginning on the date that the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act.
(g) During the period of five years from the Closing Date, the Company will furnish to the Underwriters copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to the Underwriters as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; provided, however, that the Company shall not be required to provide the Underwriters with any such reports that have been filed with the Commission by electronic transmission pursuant to EDGAR.
(h) The Company will apply the net proceeds from the sale of the Shares as set forth under the caption Use of Proceeds in the Prospectus.
(i) The Company will use its best efforts to list the Shares and the Conversion Shares on The New York Stock Exchange within 30 days after the Closing Date and, upon such listing, will use its best efforts to maintain such listing and satisfy the requirements for such continued listing.
(j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby. The Company has given the Underwriters notice of any filings made pursuant to the Rules and Regulations within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Underwriters or Underwriter Counsel shall object.
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(k) The Company will not at any time, directly or indirectly, take any action designed to, or which might reasonably be expected to, cause or result in, or which has constituted or which might reasonably be expected to constitute, a violation of Regulation M under the Exchange Act, or the stabilization of the price of its shares of beneficial interest to facilitate the sale or resale of any of the Shares.
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code for each of its taxable years for so long as the board of trustees deems it in the best interests of the Companys shareholders to remain so qualified.
(m) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an investment company, as such term is defined in the 40 Act.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company, a Registrar for its Common Shares, Series C Preferred Shares, Series D Preferred Shares, Series E Preferred Shares and Series F Preferred Shares.
(o) During a period of 90 days from the date of this Agreement, the Company will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or lend or otherwise transfer or dispose of, the Shares or any securities that are substantially similar to the Shares, whether owned as of the date hereof or hereafter acquired or with respect to which such person has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Shares or such other securities, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of any Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the Shares to be sold hereunder.
(p) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Shares and the Conversion Shares for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify or register as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or registered, or to subject itself to taxation in respect of doing business in any jurisdiction in which
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it is not otherwise so subject. In each jurisdiction in which the Shares have been so qualified or registered, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Shares. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares and the Conversion Shares, as contemplated by the provisions hereof, the Registration Statement, the Prospectus and the General Disclosure Package.
(q) The Company will use its best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(r) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act
(s) The Company will will reserve and keep available at all times, free of preemptive or similar rights, the maximum number of Conversion Shares into which the Shares may be converted.
5. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, subject to the last sentence of this Section, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a free writing prospectus, as defined in Rule 405. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a Permitted Free Writing Prospectus. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an issuer free writing prospectus, as defined in Rule 433 of the Securities Act Rules and Regulations, and has complied and will comply with the requirements of Rule 433 of the Securities Act Rules and Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. Notwithstanding the foregoing, the Underwriters may use a free writing prospectus that contains no issuer information (as defined in Rule 433 of the Securities Act Rules and Regulations) that was not included (including through incorporation by reference) in the Preliminary Prospectus, the Prospectus or a previously filed Issuer Free Writing Prospectus and, prior to the preparation of the Final Term Sheet, may use the information with respect to the final terms of the Shares in communications conveying information relating to the offering to investors.
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6. Payment of Expenses. Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder, including the following: (i) all expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the fees, disbursements and expenses of the Companys counsel and accountants in connection with the registration of the Shares and the Conversion Shares under the Securities Act and the Offering; (iii) the cost of producing each of this Agreement and any agreement among underwriters, blue sky survey, closing documents and other instruments, agreements or documents (including any compilations thereof) in connection with the Offering; (iv) all expenses in connection with the qualification of the Shares and the Conversion Shares for offering and sale under state securities laws, if required, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with any blue sky survey; (v) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the FINRA of the terms of the Offering; (vi) all fees and expenses in connection with the preparation and filing of the Registration Statement on Form 8-A relating to the Shares and all fees and expenses in connection with listing the Shares and the Conversion Shares on The New York Stock Exchange; (vii) all travel expenses of the Companys officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Shares; (viii) any stock transfer taxes incurred in connection with this Agreement or the Offering; and (ix) the costs and expenses (including without limitation any damages) associated with the reforming of any contracts for sale of the Shares made by the Underwriters caused by a breach of the representation contained in Section 1(d) hereof. The Company also will pay or cause to be paid: (x) the cost of preparing stock certificates, if any, representing the Shares (and the Conversion Shares); (y) the cost and charges of any transfer agent or registrar for the Shares; and (z) all other costs and expenses incident to the performance by the Company of its obligations hereunder which are not otherwise specifically provided for in this Section 6. It is understood, however, that except as provided in this Section, and Sections 8, 9 and 11 hereof, each Underwriter will pay all of its own costs and expenses, including the fees of its counsel and transfer taxes on resale of any of the Shares by such Underwriter. Notwithstanding anything to the contrary in this Section 6, in the event that this Agreement is terminated pursuant to Section 7 or 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of counsel to the Underwriters) incurred in connection herewith.
7. Conditions of Each Underwriters Obligations. The obligations of the Underwriters to purchase and pay for the Shares, as provided herein, shall be subject to the accuracy of the representations and warranties of the Company herein contained, as of the date hereof, as of the Applicable Time and as of the Closing Date (for purposes of this Section 7 Closing Date shall refer to the Closing Date for the Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Underwriter Counsel pursuant to this Section 7 of any material misstatement or omission, to the performance by the Company of its obligations hereunder, and to each of the following additional conditions:
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(a) The Registration Statement shall have become effective and all necessary regulatory approvals shall have been received not later than the Applicable Time, on the date of this Agreement, or at such later time and date as shall have been consented to in writing by the Representatives; the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) in accordance with Section 4(a) hereof; and, at or prior to the Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and, to the knowledge of the Company, no proceedings therefor shall have been initiated or threatened by the Commission, nor has any state securities authority suspended the qualification or registration of the Shares for offering or sale in any jurisdiction and any request of the Commission for additional information (to be included in the Registration Statement, the General Disclosure Package or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Underwriters and Underwriter Counsel. Each Issuer Free Writing Prospectus shall have been timely filed with the Commission under Rule 433 or 164 of the Securities Act Rules and Regulations (to the extent required by Rule 433 of the Securities Act Rules and Regulations).
(b) The Underwriters shall not have advised the Company that the Registration Statement or any amendment thereto contains an untrue statement of fact that in the opinion of the Underwriters or Underwriter Counsel is material or omits to state a fact that in the opinion of the Underwriters or Underwriter Counsel is material and is required to be stated therein or is necessary to make the statements therein not misleading, that the General Disclosure Package (at the Applicable Time and at the Closing Date) or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the opinion of the Underwriters or Underwriter Counsel is material or omits to state a fact that in the opinion of the Underwriters or Underwriter Counsel is material and is necessary, in the light of the circumstances under which they were made, to make the statements therein not misleading.
(c) At the Closing Date you shall have received the favorable written opinion of Stinson Morrison Hecker LLP, counsel for the Company, dated the Closing Date addressed to the Underwriters substantially in the form attached hereto as Annex I.
(d) All proceedings taken in connection with the sale of the Shares as herein contemplated shall be satisfactory in form and substance to the Representatives and to Underwriter Counsel, and the Underwriters shall have received from Underwriter Counsel a favorable written opinion, dated as of the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the General Disclosure Package and the Prospectus and such other related matters as the Representatives may require, and the Company shall have furnished to Underwriter Counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the Closing Date, the Underwriters shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Date to the effect that (A) the condition set forth in subsection (a) of this Section 7 has
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been satisfied, (B) as of the date hereof and as of the Closing Date, the representations and warranties of the Company set forth in Section 1 hereof are accurate, (C) as of the Closing Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (D) the Company and the Subsidiaries have not sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (E) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and, to the knowledge of the Company, no proceedings therefor have been initiated or threatened by the Commission and (F) subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus there has not been any Material Adverse Change or Material Adverse Effect, or any development involving a prospective Material Adverse Change or Material Adverse Effect, whether or not arising from transactions in the ordinary course of business.
(f) At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter from KPMG LLP, independent public accountants for the Company dated as of the date of this Agreement and as of the Closing Date addressed to the Representatives and in form and substance reasonably satisfactory to the Underwriters and Underwriter Counsel.
(g) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the General Disclosure Package and the Prospectus and through the Closing, there shall not have been any material change in the shares of beneficial interest or capital stock (except pursuant to the Companys dividend reinvestment plan, as in effect on the date hereof, or the exercise of vested options), or material increase in long-term debt of the Company or any of the Subsidiaries or any change or development involving a change, whether or not arising from transactions in the ordinary course of business, in the business, condition (financial or otherwise), results of operations, shareholders equity, properties, affairs or prospects of the Company and the Subsidiaries, taken as a whole, including but not limited to the occurrence of any fire, flood, explosion or other calamity at any of the properties owned or leased by the Company or any of its Subsidiaries, the effect of which, in any such case described above, is, in the reasonable judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus (exclusive of any supplement).
(h) At the Closing Date, the Company shall have taken all necessary action for listing of the Shares on The New York Stock Exchange within 30 days after the Closing Date. The Shares shall be eligible for clearance and settlement through DTC.
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(i) Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no downgrading or adverse change shall have occurred in the rating accorded any security of the Company by any nationally recognized statistical rating organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any security of the Company, that, in either event, makes it impractical or inadvisable, in the Underwriters judgment, to offer or deliver the Shares on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(j) Prior to the Closing Date, the Articles Supplementary for the Securities shall have been duly filed with the SDAT and shall be in full force and effect.
(k) Prior to the Closing Date, the Company shall have delivered to the Representatives letters from Moodys Investors Service, Inc., Standard & Poors Ratings Services, a division of The McGraw Hill Companies, Inc. and Fitch, Inc. assigning a rating to the Securities of Ba1, B and BB, respectively.
(l) The Company shall have furnished the Underwriters and Underwriter Counsel with such other certificates, opinions or other documents as they may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Underwriters or to Underwriter Counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Representatives and Underwriter Counsel, acting reasonably, all obligations of the Underwriters hereunder may be cancelled by the Representatives at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Company in writing, or by telephone. Any such telephone notice shall be confirmed promptly thereafter in writing.
8. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all losses, liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to attorneys fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, as originally filed or any amendment thereof, or any related Preliminary Prospectus, any Issuer Free Writing
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Prospectus (including any General Use Issuer Free Writing Prospectus or Limited Use Issuer Free Writing Prospectus), the General Disclosure Package or the Prospectus, or in any supplement thereto or amendment thereof, or any issuer information (as defined in Rule 433 of the Securities Act Rules and Regulations) filed or required to be filed under Rule 433 of the Securities Act Rules and Regulations, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company will not be liable in any such case to the extent but only to the extent that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriters through the Representatives expressly for use therein. The parties agree that such information provided by or on behalf of the Underwriters through the Representatives consists solely of the material referred to in the second to last sentence of Section 1(b) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have, including but not limited to other liability under this Agreement.
(b) Each Underwriter shall severally and not jointly indemnify and hold harmless the Company, each of the trustees and officers of the Company and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, liabilities, claims, damages and expenses whatsoever as incurred (including but not limited to attorneys fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation), joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, as originally filed or any amendment thereof, or any related Preliminary Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that any such loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters through the Representatives specifically for use therein; provided, however, that in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discount or commission applicable to the Shares to be purchased by the Underwriters hereunder. This indemnity will be in addition to any liability which the Underwriters may otherwise have, including but not limited to other liability under this Agreement. The parties acknowledge and agree that such information provided by or on behalf of the Underwriters through the Representatives consists solely of the material referred to in the second to last sentence of Section 1(b) hereof.
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(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of any claims or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify each party against whom indemnification is to be sought in writing of the claim or the commencement thereof, but the failure so to notify an indemnifying party shall not relieve the indemnifying party from any liability which it may have under this Section 8. In case any such claim or action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate, at its own expense in the defense of such action, and to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party; provided, however, that counsel to the indemnifying party shall not (except with the written consent of the indemnified party) also be counsel to the indemnified party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by one of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying parties shall not have employed counsel to have charge of the defense of such action within a reasonable time after notice of commencement of the action, (iii) the indemnifying party does not diligently defend the action after assumption of the defense, or (iv) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to one or all of the indemnifying parties (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying parties. No indemnifying party shall, without the prior written consent of the indemnified parties, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened claim, investigation, action or proceeding in respect of which indemnity or contribution may be or could have been sought by an indemnified party under this Section 8 or Section 9 hereof (whether or not the indemnified party is an actual or potential party thereto), unless (x) such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such claim, investigation, action or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or any failure to act, by or on behalf of the indemnified party, and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.
9. Contribution. In order to provide for contribution in circumstances in which the indemnification provided for in Section 8 hereof is for any reason held to be unavailable from any indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages, liabilities and expenses of the nature contemplated by such indemnification provision (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted, but after
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deducting in the case of losses, claims, damages, liabilities and expenses suffered by the Company any contribution received by the Company from persons, other than the Underwriters, who may also be liable for contribution, including persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and trustees of the Company) as incurred to which the Company and the Underwriters may be subject, in such proportions as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the Offering or, if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to above but also the relative fault of the Company on the one hand and the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as (x) the total proceeds from the Offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company bears to (y) the underwriting discount or commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and of the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 9. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 9 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 9, (i) no Underwriter shall be required to contribute any amount in excess of the amount of the underwriting discount or commissions applicable to the Shares purchased by such Underwriter hereunder and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person, if any, who controls any of the Underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Underwriters, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each trustee of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately preceding sentence. The Underwriters respective obligations to contribute pursuant to this Section 9 are several in proportion to the
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number of Shares set forth opposite their respective names in Schedule I hereto and not joint. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 9 or otherwise.
10. Survival of Representations and Agreements. All representations and warranties, covenants and agreements of the Underwriters and the Company contained in this Agreement or in certificates of officers of the Company or any Subsidiary submitted pursuant hereto, including the agreements contained in Section 6, the indemnity agreements contained in Section 8 and the contribution agreements contained in Section 9, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters or any controlling person thereof or by or on behalf of the Company, any of its officers and trustees or any controlling person thereof, and shall survive delivery of and payment for the Shares to and by the Underwriters. The representations and agreements contained in Sections 1, 5, 6, 8, 9, 10, 11 and 12 through 18, inclusive, hereof shall survive any termination of this Agreement, including termination pursuant to Section 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of this Agreement by the parties hereto. Notwithstanding any termination of this Agreement, the provisions of this Section 11 and of Sections 1, 5, 6, 8, 9, 10 and 12 through 18, inclusive, shall be in full force and effect at all times after the execution hereof.
(b) The Representatives shall have the right to terminate this Agreement at any time prior to the Closing Date if (A) there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the General Disclosure Package and the Prospectus (exclusive of any supplement thereto), any Material Adverse Change or Material Adverse Effect, whether or not arising in the ordinary course of business, (B) any domestic or international event or act or occurrence has materially disrupted, or in the opinion of the Representatives will in the immediate future materially disrupt, the market for the Companys securities or securities in general; or (C) if trading in any of the Companys securities, or if trading on The New York Stock Exchange generally, shall have been suspended or been made subject to material limitations, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on The New York Stock Exchange or by order of the Commission or any other governmental authority having jurisdiction; or (D) if a banking moratorium has been declared by any state or federal authority or if any material disruption in commercial banking or securities settlement or clearance services shall have occurred; or (E) any downgrading shall have occurred in the Companys corporate credit rating or the rating accorded the Companys debt securities or preferred stock by any nationally recognized statistical rating organization (as defined for
35
purposes of Rule 436(g) under the Securities Act) or if any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companys debt securities; or (F) (i) if there shall have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States or there is a declaration of a national emergency or war by the United States or (ii) if there shall have been any other calamity or crisis or any change in political, financial or economic conditions if the effect of any such event in (i) or (ii), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering, sale and delivery of the Shares on the terms and in the manner contemplated by the General Disclosure Package and the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be in writing.
(d) If this Agreement shall be terminated pursuant to any of the provisions hereof, or if the sale of the Shares provided for herein is not consummated because any condition to the obligations of the Underwriters set forth herein is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof, the Company will, subject to demand by the Representatives, reimburse the Underwriters for all out-of-pocket expenses (including the fees and expenses of their counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or faxed and confirmed in writing, to the Representatives c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated, 50 Rockefeller Plaza, NY1-050-12-02, New York, New York 10020, Attention: High Grade Transaction Management/Legal, c/o Citigroup Global Markets Inc., 388 Greenwich Street, New York, NY 10013 (fax: (212) 816-7912), Attention: General Counsel, c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: High Grade Syndicate Desk 3rd Floor (tel: (212) 834-5724), and c/o RBC Capital Markets, LLC, 2 World Financial Center, 200 Vesey Street, 8th Floor, New York, NY 10281.
(b) if sent to the Company, shall be mailed, delivered, or faxed and confirmed in writing to the Company and its counsel at the addresses set forth in the Registration Statement, Attention: Chief Financial Officer.
Any such notices and other communications shall take effect at the time of receipt thereof.
13. Parties. This Agreement shall inure solely to the benefit of, and shall be binding upon, the Underwriters and the Company and the controlling persons, directors, trustees, officers, employees and agents referred to in Sections 8 and 9 hereof, and their respective successors and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any
36
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and said controlling persons and their respective successors, officers, directors, trustees, employees, agents, heirs and legal representatives, and it is not for the benefit of any other person, firm or corporation. The term successors and assigns shall not include a purchaser, in its capacity as such, of Shares from the Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company irrevocably (a) submits to the jurisdiction of any court of the State of New York or the United States District Court for the Southern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated by this Agreement, the Registration Statement and the Prospectus (each, a Proceeding), (b) agrees that all claims in respect of any Proceeding may be heard and determined in any such court, (c) waives, to the fullest extent permitted by law, any immunity from jurisdiction of any such court or from any legal process therein, (d) agrees not to commence any Proceeding other than in such courts, and (e) waives, to the fullest extent permitted by law, any claim that such Proceeding is brought in an inconvenient forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Absence of Fiduciary Relationship; Patriot Act Compliance. The Company acknowledges and agrees that:
(a) the Underwriters have been retained solely to act in the capacity of an arms length contractual counterparty to the Company as underwriter in connection with the sale of the Companys securities and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person; and that no fiduciary, advisory or agency relationship between the Company and the Underwriters have been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Underwriters have advised or is advising the Company on other matters;
(b) neither the Representatives nor any Underwriter is advising the Company as to any legal, tax, investment, accounting or regulator matters in any jurisdiction; the Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto; and any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company;
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(c) the price of the securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Underwriters, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(d) it has been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of Company and that the Underwriters have no obligation to disclose such interests and transactions to Company by virtue of any fiduciary, advisory or agency relationship;
(e) it waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in respect of the transactions contemplated by this Agreement and agrees that the Underwriters shall have no liability (whether direct or indirect) to Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders, employees or creditors of the Company; and
(f) in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16. Authority of Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
17. Non-Exclusive Remedies. The remedies provided for in Sections 8 and 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified person at law or in equity.
18. Integration. This Agreement supersedes all prior agreements and understanding (whether written or oral) between the Company and all the Underwriters, or any of them, with respect to the subject matter hereof.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile transmission shall constitute valid and sufficient delivery thereof.
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20. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
21. Time is of the Essence. Time shall be of the essence in this Agreement. As used herein, the term business day shall mean any day when the Commissions office in Washington, D.C. is open for business.
[signature page follows]
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If the foregoing correctly sets forth your understanding, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among us.
Very truly yours, | ||||
ENTERTAINMENT PROPERTIES TRUST | ||||
By: | /s/ Mark A. Peterson | |||
Name: | Mark A. Peterson | |||
Title: | Senior Vice President, Treasurer and Chief Financial Officer |
[Signature page to Underwriting Agreement]
Accepted as of the date first above
written, for itself and as Representative of
the several Underwriters named on
Schedule I hereto:
MERRILL LYNCH, PIERCE, FENNER & SMITH | ||
INCORPORATED |
By: | /s/ Chris Djoganopoulos | |||
Name: | Chris Djoganopoulos | |||
Title: | Managing Director |
[Signature page to Underwriting Agreement]
Accepted as of the date first above
written, for itself and as Representative of
the several Underwriters named on
Schedule I hereto:
CITIGROUP GLOBAL MARKETS INC. | ||||
By: | /s/ Philip Tedeschi | |||
Name: | Philip Tedeschi | |||
Title: | Vice President |
[Signature page to Underwriting Agreement]
Accepted as of the date first above
written, for itself and as Representative of
the several Underwriters named on
Schedule I hereto:
J.P. MORGAN SECURITIES LLC | ||||
By: | /s/ Robert Bottamedi | |||
Name: | Robert Bottamedi | |||
Title: | Vice President |
[Signature page to Underwriting Agreement]
Accepted as of the date first above
written, for itself and as Representative of
the several Underwriters named on
Schedule I hereto:
RBC CAPITAL MARKETS, LLC | ||||
By: | /s/ John C. Brady | |||
Name: | John C. Brady | |||
Title: | Managing Director, Co-Head, RE Group |
[Signature page to Underwriting Agreement]
Exhibit 4.1
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this Supplemental Indenture), dated as of October 11, 2012, among Flik, Inc., a Delaware corporation, EPT Gulf Pointe, Inc., a Delaware corporation, EPT Mesquite, Inc., a Delaware corporation, EPT Barrington South, Inc., a Delaware corporation (each, a Guaranteeing Subsidiary and, collectively, the Guaranteeing Subsidiaries), Entertainment Properties Trust, a Maryland real estate investment trust (the Issuer), the other Guarantors (as defined in the Indenture referred to below) and UMB Bank, n.a., as trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture, dated as of June 30, 2010, as supplemented by a supplemental indenture dated as of October 13, 2011 (as so supplemented, the Indenture), providing for the issuance of 7.750% Senior Notes due 2020 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Issuers Obligations (as defined in the Indenture) under the Notes and the Indenture on the terms and conditions set forth herein (the Notes Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree as follows:
(a) Subject to Article 10 of the Indenture, the Guaranteeing Subsidiaries hereby, jointly and severally with all other Guarantors, unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
(i) the principal of, and premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, other than payment in full of all Obligations under the Notes.
(c) The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
(d) This Notes Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture, and each Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or such Holder, this Notes Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Notes Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Notes Guarantee.
(h) The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Notes Guarantee.
(i) In accordance with Section 10.02 of the Indenture, after giving effect to any maximum amount and all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy Law or fraudulent conveyance law, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 10 of the Indenture, this Notes Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guarantor under this Notes Guarantee will not constitute a fraudulent transfer or conveyance.
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3. Guaranteeing Subsidiaries may Consolidate, etc., on Certain Terms.
(a) No Guaranteeing Subsidiary may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guaranteeing Subsidiary is the surviving Person) another Person, other than the Issuer or another Guarantor unless:
(i) immediately after giving effect to such transaction, no Default or Event of Default exists; and
(ii) subject to Section 10.05 of the Indenture, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all of the obligations of such Guaranteeing Subsidiary under the Indenture and this Notes Guarantee pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee.
(b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of this Notes Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Guaranteeing Subsidiary, such successor Person shall succeed to and be substituted for the Guaranteeing Subsidiary with the same effect as if it had been named herein as a Guaranteeing Subsidiary. Such successor Person thereupon may cause to be signed any or all of the Notes Guarantees to be endorsed upon all of the Notes issuable under the Indenture which theretofore shall not have been signed by the Issuer and delivered to the Trustee. All the Notes Guarantees so issued shall in all respects have the same legal rank and benefit under the Indenture as the Notes Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Notes Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 10.04 of the Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or in any of the Notes shall prevent any consolidation or merger of a Guaranteeing Subsidiary with or into the Issuer or another Guarantor, or shall prevent any sale or conveyance of the property of a Guaranteeing Subsidiary as an entirety or substantially as an entirety to the Issuer or another Guarantor.
4. Releases.
(a) The Notes Guarantee of a Guaranteeing Subsidiary shall be released, and any Person acquiring assets (including by way of merger or consolidation) or Capital Stock of a Guaranteeing Subsidiary under those circumstances specified in Section 10.05 of the Indenture shall not be required to assume the obligations of such Guaranteeing Subsidiary. Upon delivery by the Issuer to the Trustee of an Officers Certificate and an Opinion of Counsel stating that the provisions of Section 10.05 of the Indenture have been complied with, the Trustee shall execute any documents reasonably required in order to evidence the release of such Guaranteeing Subsidiary from its obligations under this Notes Guarantee.
(b) Any Guarantor not released from its obligations under its Notes Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in Article 10 of the Indenture.
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5. No Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder, equity holder or agent of a Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Issuer or a Guaranteeing Subsidiary under the Notes, this Notes Guarantee, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Issuer.
[signature on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: October 11, 2012
Guaranteeing Subsidiaries: | ||
FLIK, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT GULF POINTE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MESQUITE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT SOUTH BARRINGTON, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
Issuer: | ||
ENTERTAINMENT PROPERTIES TRUST | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President |
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Existing Guarantors: | ||
30 WEST PERSHING, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT DOWNREIT II, Inc. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT HUNTSVILLE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
MEGAPLEX FOUR, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
WESTCOL CENTER, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MELBOURNE, INC. | ||
By: |
/s/ Mark Peterson | |
Mark Peterson, Vice President |
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CROTCHED MOUNTAIN PROPERTIES, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EDUCATION CAPITAL SOLUTIONS, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPR HIALEAH, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT 909, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT CROTCHED MOUNTAIN, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT KALAMAZOO, INC. | ||
By: |
/s/ Mark Peterson | |
Mark Peterson, Vice President |
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EPT MAD RIVER, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MOUNT ATTITASH, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MOUNT SNOW, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT NINETEEN, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT SKI PROPERTIES, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT WATERPARKS, INC. | ||
By: |
/s/ Mark Peterson | |
Mark Peterson, Vice President |
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MEGAPLEX NINE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
ECS DOUGLAS I, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT DALLAS, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT FONTANA, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT TWIN FALLS, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
Trustee: | ||
UMB BANK, N.A., as Trustee | ||
By: |
/s/ Anthony P. Hawkins | |
Name: Anthony P. Hawkins | ||
Title: Vice President |
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Exhibit 4.2
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this Supplemental Indenture), dated as of October 11, 2012, among Flik, Inc., a Delaware corporation, EPT Gulf Pointe, Inc., a Delaware corporation, EPT Mesquite, Inc., a Delaware corporation, EPT Barrington South, Inc., a Delaware corporation (each, a Guaranteeing Subsidiary and, collectively, the Guaranteeing Subsidiaries), Entertainment Properties Trust, a Maryland real estate investment trust (the Issuer), the other Guarantors (as defined in the Indenture referred to below) and U.S. Bank National Association, as trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture, dated as of August 8, 2012 (the Indenture), providing for the issuance of 5.750% Senior Notes due 2022 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Issuers Obligations (as defined in the Indenture) under the Notes and the Indenture on the terms and conditions set forth herein (the Notes Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree as follows:
(a) Subject to Article 10 of the Indenture, the Guaranteeing Subsidiaries hereby, jointly and severally with all other Guarantors, unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
(i) the principal of, and premium, if any, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, other than payment in full of all Obligations under the Notes.
(c) The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
(d) This Notes Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture, and each Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or such Holder, this Notes Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Notes Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Notes Guarantee.
(h) The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Notes Guarantee.
(i) In accordance with Section 10.02 of the Indenture, after giving effect to any maximum amount and all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy Law or fraudulent conveyance law, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 10 of the Indenture, this Notes Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guarantor under this Notes Guarantee will not constitute a fraudulent transfer or conveyance.
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3. Guaranteeing Subsidiaries may Consolidate, etc., on Certain Terms.
(a) No Guaranteeing Subsidiary may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guaranteeing Subsidiary is the surviving Person) another Person, other than the Issuer or another Guarantor unless:
(i) immediately after giving effect to such transaction, no Default or Event of Default exists; and
(ii) subject to Section 10.05 of the Indenture, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all of the obligations of such Guaranteeing Subsidiary under the Indenture and this Notes Guarantee pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee.
(b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of this Notes Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Guaranteeing Subsidiary, such successor Person shall succeed to and be substituted for the Guaranteeing Subsidiary with the same effect as if it had been named herein as a Guaranteeing Subsidiary. Such successor Person thereupon may cause to be signed any or all of the Notes Guarantees to be endorsed upon all of the Notes issuable under the Indenture which theretofore shall not have been signed by the Issuer and delivered to the Trustee. All the Notes Guarantees so issued shall in all respects have the same legal rank and benefit under the Indenture as the Notes Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Notes Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 10.04 of the Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or in any of the Notes shall prevent any consolidation or merger of a Guaranteeing Subsidiary with or into the Issuer or another Guarantor, or shall prevent any sale or conveyance of the property of a Guaranteeing Subsidiary as an entirety or substantially as an entirety to the Issuer or another Guarantor.
4. Releases.
(a) The Notes Guarantee of a Guaranteeing Subsidiary shall be released, and any Person acquiring assets (including by way of merger or consolidation) or Capital Stock of a Guaranteeing Subsidiary under those circumstances specified in Section 10.05 of the Indenture shall not be required to assume the obligations of such Guaranteeing Subsidiary. Upon delivery by the Issuer to the Trustee of an Officers Certificate and an Opinion of Counsel stating that the provisions of Section 10.05 of the Indenture have been complied with, the Trustee shall execute any documents reasonably required in order to evidence the release of such Guaranteeing Subsidiary from its obligations under this Notes Guarantee.
(b) Any Guarantor not released from its obligations under its Notes Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in Article 10 of the Indenture.
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5. No Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder, equity holder or agent of a Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Issuer or a Guaranteeing Subsidiary under the Notes, this Notes Guarantee, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Issuer.
[signature on following pages]
4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: October 11, 2012
Guaranteeing Subsidiaries: | ||
FLIK, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT GULF POINTE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MESQUITE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT SOUTH BARRINGTON, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
Issuer: | ||
ENTERTAINMENT PROPERTIES TRUST | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President |
5
Existing Guarantors: | ||
30 WEST PERSHING, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT DOWNREIT II, Inc. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT HUNTSVILLE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
MEGAPLEX FOUR, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
WESTCOL CENTER, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MELBOURNE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President |
6
CROTCHED MOUNTAIN PROPERTIES, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EDUCATION CAPITAL SOLUTIONS, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPR HIALEAH, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT 909, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT CROTCHED MOUNTAIN, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT KALAMAZOO, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President |
7
EPT MAD RIVER, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MOUNT ATTITASH, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MOUNT SNOW, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT NINETEEN, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT SKI PROPERTIES, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT WATERPARKS, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
MEGAPLEX NINE, INC. | ||
By: |
/s/ Mark Peterson | |
Mark Peterson, Vice President |
8
ECS DOUGLAS I, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT DALLAS, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT FONTANA, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT TWIN FALLS, LLC | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
Trustee: | ||
U.S BANK NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Wally Jones | |
Name: Wally Jones | ||
Title: Vice President |
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Exhibit 4.3
AGREEMENT REGARDING OWNERSHIP LIMIT WAIVER
THIS AGREEMENT is entered into as of October 4, 2012, by Entertainment Properties Trust, a Maryland real estate investment trust (EPR), and CBRE Clarion Securities LLC (Purchaser).
RECITALS
A. EPR has elected, effective for its taxable years ending on and after December 31, 1997, to be treated as a real estate investment trust (REIT) for purposes of the Internal Revenue Code of 1986, as amended (the Code). EPRs Amended and Restated Declaration of Trust (Declaration of Trust) contains certain ownership limitations relating to EPRs qualification as a REIT, including a limitation on the percentage of EPRs outstanding shares of beneficial interest (Shares) that any Person (as defined in the Declaration of Trust) may own (the Ownership Limit).
B. Article Ninth, Section 11 of the Declaration of Trust provides that the Board of Trustees of EPR (the Board), in its sole discretion, may exempt a Person from the Ownership Limit if such Person provides to the Board such representations and undertakings as the Board, in its sole and absolute discretion, may require, and such Person agrees that any violation of such representations and undertakings or any attempted violation thereof will result in an application of the remedies set forth in Article Ninth of the Declaration of Trust (Article Ninth) with respect to shares held in excess of the Ownership Limit (Excess Shares).
C. EPR intends to issue up to 5,000,000 of its Series F cumulative redeemable preferred shares of beneficial interest (liquidation preference$25.00 per share) (the Series F Preferred Shares) on or about October 12, 2012 in connection with an underwritten public offering thereof (the Offering), and Purchaser, on behalf of certain accounts and institutions, desires to acquire approximately 21% (as determined with reference to liquidation value), in the aggregate, of the Series F Preferred Shares to be issued in the Offering.
D. Purchaser has requested that the Board grant Purchaser a waiver of the Ownership Limit that will permit Purchaser, on behalf of certain accounts and institutions, to acquire Series F Preferred Shares in the amount described herein, and the Board desires to grant such waiver, conditioned upon the continued accuracy of the representations and undertakings made by Purchaser in this Agreement.
In consideration of the foregoing and the mutual promises and covenants contained herein, the parties agree as follows:
1. | REPRESENTATIONS AND WARRANTIES OF EPR |
EPR represents and warrants that the Board has approved an exemption from the Ownership Limit for the acquisition of Series F Preferred Shares by Purchaser, conditioned upon Purchasers representations and undertakings in this Agreement, permitting Purchaser, on behalf of certain accounts and institutions, to acquire up to an aggregate of 25% (but not more than 25%), as determined by reference to liquidation value, of the issued and outstanding Series F Preferred Shares to be sold in the Offering.
2. | REPRESENTATIONS AND WARRANTIES OF PURCHASER |
Purchaser represents and warrants to and agrees with EPR as follows:
2.1 In connection with, and as a condition to, the grant by the Board of an exemption from the Ownership Limit to permit Purchaser, on behalf of certain accounts and institutions, to hold up to an aggregate of 25% (but not more than 25%), as determined by reference to liquidation value, of the issued and outstanding Series F Preferred Shares, Purchaser represents to EPR and covenants that no person or entity who would be considered to be an individual for purposes of Section 542(a)(2) of the Code would be considered, after taking into account the ownership attribution rules under Section 544 of the Code (as modified by Sections 856(h)(1)(B) and 856(h)(3) of the Code), the beneficial owner of more than 9.8% of the issued and outstanding Shares (assuming for this purpose that such individual is not considered to own any Shares other than solely by reason of Purchasers ownership of Shares). Purchaser acknowledges and agrees that, if at any time the foregoing covenant and representation would not be accurate, the maximum number of Series F Preferred Shares that Purchaser could own would be automatically reduced (without the requirement for any action by EPR) to the number of Series F Preferred Shares that would cause the covenant in the preceding sentence to be accurate.
2.2 Purchaser acknowledges that, notwithstanding the waiver of the Ownership Limit granted pursuant to this Agreement, the Board is not granting an exemption from any other ownership restrictions set forth in Article Ninth or with respect to any Shares other than the Series F Preferred Shares.
2.3 Purchaser acknowledges that EPR is a domestically controlled REIT under the Code, and agrees that EPR may take such actions as the Board, in its sole and absolute discretion, deems necessary and advisable to preserve EPRs status as a domestically controlled REIT under the Code, and to ensure that EPR is not closely held within the meaning of Section 856(h) of the Code, including but not limited to the designation of any Series F Preferred Shares or other securities of EPR the acquisition of which by Purchaser or the accounts or institutions for which it acts could cause EPR to become closely held or to lose its status as a domestically controlled REIT, as Excess Shares subject to the Excess Share provisions of Article Ninth, notwithstanding any other provision of this Agreement or the waiver granted hereby.
2.4 Purchaser acknowledges and agrees that any violation of its representations, warranties or covenants in this Section 2 will result in the application of the remedies set forth in Article Ninth in respect to any of the Shares that constitute Excess Shares in accordance with Article Ninth.
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3. | MISCELLANEOUS |
3.1 Additional Actions and Documents
Each of the parties hereby agrees to use its reasonable best efforts to cause to be taken such further actions, to execute, deliver and file or use its reasonable best efforts to cause to be executed, delivered and filed such further documents, and to obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement.
3.2 Assignment
Neither party may assign its rights and obligations under this Agreement, in whole or in part, without the prior written consent of the other party, and any such assignment contrary to the terms hereof shall be null and void and of no force and effect. In no event shall the assignment by either party of its respective rights or obligations under this Agreement release such party from its liabilities and obligations hereunder.
3.3 Amendment
This Agreement constitutes the full and entire understanding of the parties with respect to the subject matters herein. No amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed and delivered by the party against whom enforcement of the amendment, modification, or discharge is sought.
3.4 Waiver
No waiver shall be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.
3.5 Governing Law
This Amendment shall be governed by and construed under the laws of the State of Maryland (without regard for the choice of law provisions thereof).
3.6 Severability
If any clause or provision of this Agreement operates or would prospectively operate to invalidate this Agreement in whole or in part, then only such clause or provision shall be ineffective, and the remainder of this Agreement shall remain operative and in full force and effect.
3.7 Incorporation of Recitals
The recitals hereto are incorporated herein as part of this Agreement.
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3.8 Execution in Counterparts
This Agreement may be executed in counterparts. All counterparts shall collectively constitute a single Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date set forth above.
ENTERTAINMENT PROPERTIES TRUST | ||||
By: | /s/ Mark Peterson | |||
Name: | Mark A. Peterson | |||
Title: | Senior Vice President, Treasurer and Chief Financial Officer | |||
CBRE CLARION SECURITIES LLC | ||||
By: | /s/ David J. Makowicz | |||
Name: | David J. Makowicz | |||
Title: | Chief Operating Officer |
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Exhibit 10.1
JOINDER AGREEMENT
THIS JOINDER AGREEMENT dated as of October 11, 2012, executed and delivered by FLIK, INC., a Delaware corporation, EPT GULF POINTE, INC., a Delaware corporation, EPT MESQUITE, INC., a Delaware corporation, and EPT SOUTH BARRINGTON, INC., a Delaware corporation (each a New Borrower and, collectively, the New Borrowers), in favor of (a) KEYBANK, NATIONAL ASSOCIATION, in its capacity as Agent (the Agent) for the Lenders under that certain Amended and Restated Credit Agreement dated as of October 13, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), by and among ENTERTAINMENT PROPERTIES TRUST and the Subsidiary Borrowers referred to therein (collectively, the Borrowers), the financial institutions party thereto and their assignees under Section 12.5 thereof (the Lenders), the Agent, and the other parties thereto, and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have agreed to make available to the Borrowers certain financial accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Borrowers and the New Borrowers, though separate legal entities, have a commonality of interests in their respective financing needs and have determined it to be in their mutual best interests to obtain financing from the Agent and the Lenders through their collective efforts;
WHEREAS, each New Borrower acknowledges that it will receive direct and indirect benefits from the Agent and the Lenders making such financial accommodations available to the Borrowers under the Credit Agreement and, accordingly, each New Borrower is willing to join in and guarantee the Borrowers obligations to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each New Borrowers execution and delivery of this Agreement is a condition to the Agent and the Lenders continuing to make such financial accommodations to the Borrowers.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the New Borrowers, each New Borrower agrees as follows:
Section 1. Accession to Loan Documents. Each New Borrower hereby agrees that it is a Subsidiary Borrower under each Note and the Credit Agreement and assumes all obligations of a Subsidiary Borrower thereunder and agrees to be bound thereby, all as if such New Borrower had been an original signatory to each Note and the Credit Agreement. Without limiting the generality of the foregoing, each New Borrower hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all Obligations (as defined in the Credit Agreement);
b) makes to the Agent and the Lenders as of the date hereof each of the representations and warranties contained in the Credit Agreement made by the Borrowers and agrees to be bound by each of the covenants of the Borrowers contained in the Credit Agreement; and
c) consents and agrees to each provision set forth in each Note and the Credit Agreement.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise defined herein shall have their respective defined meanings given them in the Credit Agreement.
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Joinder Agreement (Revolver) Page 2
IN WITNESS WHEREOF, each New Borrower has caused this Joinder Agreement to be duly executed and delivered under seal by its duly authorized officers as of the date first written above.
FLIK, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT GULF POINTE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MESQUITE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT SOUTH BARRINGTON, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
Address for Notices (all New Borrowers): | ||
c/o Entertainment Properties Trust | ||
909 Walnut Street, Suite 200 | ||
Kansas City, MO 64106 | ||
Attention: Gregory K. Silvers, Esq. | ||
Vice President and General Counsel | ||
Telephone: 816-472-1700 | ||
Telecopy: 816-472-5794 |
Joinder Agreement (Revolver) Signature Page
Accepted: | ||
KEYBANK, NATIONAL ASSOCIATION, as Agent | ||
By: |
/s/ Jane E. McGrath | |
Name: Jane E. McGrath | ||
Title: Vice President |
Joinder Agreement (Revolver) Signature Page
Exhibit 10.2
JOINDER AGREEMENT
THIS JOINDER AGREEMENT dated as of October 11, 2012, executed and delivered by FLIK, INC., a Delaware corporation, EPT GULF POINTE, INC., a Delaware corporation, EPT MESQUITE, INC., a Delaware corporation, and EPT SOUTH BARRINGTON, INC., a Delaware corporation (each a New Borrower and, collectively, the New Borrowers), in favor of (a) KEYBANK NATIONAL ASSOCIATION, in its capacity as Agent (the Agent) for the Lenders under that certain Credit Agreement dated as of January 5, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), by and among ENTERTAINMENT PROPERTIES TRUST and the Subsidiary Borrowers referred to therein (collectively, the Borrowers), the financial institutions party thereto and their assignees under Section 12.5 thereof (the Lenders), the Agent, and the other parties thereto, and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have agreed to make available to the Borrowers certain financial accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Borrowers and the New Borrowers, though separate legal entities, have a commonality of interests in their respective financing needs and have determined it to be in their mutual best interests to obtain financing from the Agent and the Lenders through their collective efforts;
WHEREAS, each New Borrower acknowledges that it will receive direct and indirect benefits from the Agent and the Lenders making such financial accommodations available to the Borrowers under the Credit Agreement and, accordingly, each New Borrower is willing to join in and guarantee the Borrowers obligations to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each New Borrowers execution and delivery of this Agreement is a condition to the Agent and the Lenders continuing to make such financial accommodations to the Borrowers.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the New Borrowers, each New Borrower agrees as follows:
Section 1. Accession to Loan Documents. Each New Borrower hereby agrees that it is a Subsidiary Borrower under each Note and the Credit Agreement and assumes all obligations of a Subsidiary Borrower thereunder and agrees to be bound thereby, all as if such New Borrower had been an original signatory to each Note and the Credit Agreement. Without limiting the generality of the foregoing, each New Borrower hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all Obligations (as defined in the Credit Agreement);
b) makes to the Agent and the Lenders as of the date hereof each of the representations and warranties contained in the Credit Agreement made by the Borrowers and agrees to be bound by each of the covenants of the Borrowers contained in the Credit Agreement; and
c) consents and agrees to each provision set forth in each Note and the Credit Agreement.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise defined herein shall have their respective defined meanings given them in the Credit Agreement.
[Signatures on Next Page]
Joinder Agreement (Term Loan) Page 2
IN WITNESS WHEREOF, each New Borrower has caused this Joinder Agreement to be duly executed and delivered under seal by its duly authorized officers as of the date first written above.
FLIK, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT GULF POINTE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT MESQUITE, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President | ||
EPT SOUTH BARRINGTON, INC. | ||
By: | /s/ Mark Peterson | |
Mark Peterson, Vice President |
Address for Notices (all New Borrowers): | ||||
c/o Entertainment Properties Trust 909 Walnut Street, Suite 200 Kansas City, MO 64106 | ||||
Attention: | Gregory K. Silvers, Esq. Vice President and General Counsel | |||
Telephone: | 816-472-1700 | |||
Telecopy: | 816-472-5794 |
Joinder Agreement (Term Loan) Signature Page
Accepted: | ||
KEYBANK NATIONAL ASSOCIATION, as Agent | ||
By: | /s/ Jane E. McGrath | |
Name: Jane E. McGrath | ||
Title: Vice President |
Joinder Agreement (Term Loan) Signature Page