exv4w1



 




Exhibit
4.1




MASTER CREDIT AGREEMENT




DATED AS OF OCTOBER 26, 2007




among




EPT 301, LLC; AND

ENTERTAINMENT PROPERTIES TRUST;

(individually and collectively, the “Borrowers” or the “Borrower”)




THE LENDERS WHICH ARE OR MAY BECOME PARTIES TO THIS AGREEMENT,




KEYBANK NATIONAL ASSOCIATION,

As Administrative Agent and Lender,




and




KEYBANC CAPITAL MARKETS,

As Sole Lead Arranger and Sole Book Manager




And

MORGAN STANLEY BANK, as Documentation Agent,





 









 





TABLE OF CONTENTS




	 	 	 
	§1.

	 	DEFINITIONS AND RULES OF INTERPRETATION
	§1.1

	 	Definitions
	§1.2

	 	Rules of Interpretation
	§1.3

	 	Accounting Terms and Determinations
	§2.

	 	THE TERM LOAN FACILITY
	§2.1

	 	Term Loan
	§2.2

	 	The Increased Loan Amount
	§2.3

	 	[Reserved]
	§2.4

	 	[Reserved]
	§2.5

	 	[Reserved]
	§2.6

	 	Interest on Loans
	§2.7

	 	Requests for the Loan
	§2.8

	 	Funds for the Loan
	§2.9

	 	Use of Proceeds
	§2.10

	 	[Reserved]
	§2.11

	 	Appointment of Borrower Agent
	§3.

	 	REPAYMENT OF THE LOANS
	§3.1

	 	Stated Maturity
	§3.2

	 	Mandatory Prepayments
	§3.3

	 	Optional Prepayments
	§3.4

	 	Partial Prepayments
	§3.5

	 	Extension Option
	§3.6

	 	Effect of Prepayments
	§4.

	 	CERTAIN GENERAL PROVISIONS
	§4.1

	 	Conversion Options
	§4.2

	 	Closing Fee
	§4.3

	 	Agent’s Fee
	§4.4

	 	Funds for Payments
	§4.5

	 	Computations
	§4.6

	 	Inability to Determine LIBOR
	§4.7

	 	Illegality






 









 






	 	 	 
	§4.8

	 	Additional Interest
	§4.9

	 	Additional Costs, Etc
	§4.10

	 	Capital Adequacy
	§4.11

	 	Indemnity of Borrower
	§4.12

	 	Default Interest; Late Charge
	§4.13

	 	Certificate
	§4.14

	 	Limitation on Interest
	§4.15

	 	Certain Provisions Relating to Increased Costs
	§5.

	 	BORROWING BASE ASSET AND BORROWING BASE ASSET REPLACEMENT
	§5.1

	 	[Reserved]
	§5.2

	 	[Reserved]
	§5.3

	 	Replacement or Addition of Borrowing Base Asset
	§5.4

	 	Release of Borrowing Base Asset
	§6.

	 	REPRESENTATIONS AND WARRANTIES
	§6.1

	 	Corporate Authority, Etc
	§6.2

	 	Governmental Approvals
	§6.3

	 	Title to Properties
	§6.4

	 	Financial Statements
	§6.5

	 	No Material Changes
	§6.6

	 	Franchises, Patents, Copyrights, Etc
	§6.7
§6.8

	 	Litigation

No Materially Adverse Contracts, Etc
	§6.9

	 	Compliance with Other Instruments, Laws, Etc
	§6.10

	 	Tax Status
	§6.11

	 	No Event of Default
	§6.12

	 	Holding Company and Investment Company Acts
	§6.13

	 	Absence of UCC Financing Statements, Etc
	§6.14

	 	Setoff, Etc
	§6.15

	 	Certain Transactions
	§6.16

	 	Employee Benefit Plans
	§6.17

	 	Disclosure
	§6.18

	 	Trade Name; Place of Business
	§6.19

	 	Regulations T, U and X






 









 






	 	 	 
	§6.20

	 	Environmental Compliance
	§6.21

	 	Subsidiaries
	§6.22

	 	Leases
	§6.23

	 	Property
	§6.24

	 	Brokers
	§6.25

	 	Other Debt
	§6.26

	 	Solvency
	§6.27

	 	No Bankruptcy Filing
	§6.28

	 	No Fraudulent Intent
	§6.29

	 	Transaction in Best Interests of Borrower; Consideration
	§6.30

	 	Capitalization
	§6.31

	 	Notice of REIT Status
	§6.32

	 	[Reserved]
	§6.33

	 	Certificates of Occupancy; Licenses
	§6.34

	 	Insurance
	§6.35

	 	[Reserved]
	§7.

	 	AFFIRMATIVE COVENANTS
	§7.1

	 	Punctual Payment
	§7.2

	 	Maintenance of Office
	§7.3

	 	Records and Accounts
	§7.4

	 	Financial Statements, Certificates and Information
	§7.5

	 	Notices
	§7.6

	 	Existence; Maintenance of Properties; Rating Agency Surveillance
	§7.7

	 	Insurance
	§7.8

	 	Taxes; Liens
	§7.9

	 	Inspection of Properties and Books
	§7.10

	 	Compliance with Laws, Contracts, Licenses, and Permits
	§7.11

	 	Further Assurances
	§7.12

	 	Management
	§7.13

	 	[Reserved]
	§7.14

	 	Business Operations
	§7.15

	 	Registered Servicemark
	§7.16

	 	Deposit of Proceeds; Other Bank Accounts
	§7.17

	 	Distributions of Income to the Borrower






 









 






	 	 	 
	§7.18

	 	Borrowing Base Asset
	§7.19

	 	[Reserved]
	§7.20

	 	Plan Assets
	§7.21

	 	Certificates of Occupancy; Licenses
	§7.22

	 	[Reserved]
	§7.23

	 	Ground Leases
	§8.

	 	NEGATIVE COVENANTS
	§8.1

	 	Restrictions on Indebtedness
	§8.2

	 	Restrictions on Liens, Etc
	§8.3

	 	Restrictions on Investments
	§8.4

	 	Merger, Consolidation
	§8.5

	 	[Reserved]
	§8.6

	 	Compliance with Environmental Laws
	§8.7

	 	Distributions
	§8.8

	 	Asset Sales
	§8.9

	 	Development Activity
	§8.10

	 	Restriction on Prepayment of Indebtedness
	§8.11

	 	Zoning and Contract Changes and Compliance
	§8.12

	 	Derivative Obligations
	§8.13

	 	Subsidiaries Guarantees and Pledges
	§8.14

	 	Organizational Document Amendments
	§9.

	 	FINANCIAL COVENANTS
	§9.1

	 	Borrowing Base
	§9.2

	 	[Reserved]
	§9.3

	 	Total Debt to Total Asset Value
	§9.4

	 	Maximum Permitted Investments
	§9.5

	 	Tangible Net Worth
	§9.6

	 	Interest Rate Protection
	§9.7

	 	Minimum Interest Coverage Ratio
	§9.8

	 	Maximum Distributions
	§9.9

	 	[Reserved]
	§9.10

	 	Maximum Secured Debt
	§9.11

	 	Minimum Fixed Charge Coverage Ratio
	§10.

	 	CLOSING CONDITIONS






 









 






	 	 	 
	§10.1

	 	Loan Documents
	§10.2

	 	Certified Copies of Organizational Documents
	§10.3

	 	Resolutions
	§10.4

	 	Incumbency Certificate; Authorized Signers
	§10.5

	 	Opinion of Counsel
	§10.6

	 	Payment of Fees
	§10.7

	 	Insurance
	§10.8

	 	Performance; No Default
	§10.9

	 	Representations and Warranties
	§10.10

	 	Proceedings and Documents
	§10.11

	 	Eligible Real Estate Qualification Documents
	§10.12

	 	Compliance Certificate
	§10.13

	 	Stockholder and Partner Consents
	§10.14

	 	Other
	§11.

	 	CONDITIONS TO ALL BORROWINGS
	§11.1

	 	Prior Conditions Satisfied
	§11.2

	 	Representations True; No Default
	§11.3

	 	No Legal Impediment
	§11.4

	 	Governmental Regulation
	§11.5

	 	Proceedings and Documents
	§11.6

	 	Borrowing Documents
	§12.

	 	EVENTS OF DEFAULT; ACCELERATION; ETC
	§12.1

	 	Events of Default and Acceleration
	§12.2

	 	Limitation of Cure Periods
	§12.3

	 	[Reserved]
	§12.4

	 	Remedies
	§12.5

	 	Distribution of Collateral Proceeds
	§13.

	 	SETOFF
	§13.1

	 	Setoff
	§13.2

	 	Additional Rights
	§14.

	 	THE AGENT
	§14.1

	 	Authorization
	§14.2

	 	Employees and Agents
	§14.3

	 	No Liability






 









 






	 	 	 
	§14.4

	 	No Representations
	§14.5

	 	Payments
	§14.6

	 	Holders of Notes
	§14.7

	 	Indemnity
	§14.8

	 	Agent as Lender
	§14.9

	 	Resignation; Removal
	§14.10

	 	Duties in the Case of Enforcement
	§14.11

	 	Request for Agent Action
	§14.12

	 	[Reserved]
	§14.13

	 	Replacement of Holdout Lender
	§15.

	 	EXPENSES
	§16.

	 	INDEMNIFICATION
	§16.1

	 	Lender Indemnification
	§16.2

	 	Borrower Must Notify
	§16.3

	 	Remedies
	§16.4

	 	Limitations
	§16.5

	 	Obligations Absolute
	§17.

	 	SURVIVAL OF COVENANTS, ETC
	§18.

	 	ASSIGNMENT AND PARTICIPATION
	§18.1

	 	Conditions to Assignment by Lenders
	§18.2

	 	Register
	§18.3

	 	New Notes
	§18.4

	 	Participations
	§18.5

	 	Pledge by Lender
	§18.6

	 	No Assignment by Borrower
	§18.7

	 	Disclosure
	§18.8

	 	Amendments to Loan Documents
	§19.

	 	NOTICES
	§20.

	 	RELATIONSHIP
	§21

	 	USURY
	§22.

	 	GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE
	§23

	 	POWER OF ATTORNEY
	§24.

	 	HEADINGS
	§25.

	 	COUNTERPARTS






 









 






	 	 	 
	§26.

	 	ENTIRE AGREEMENT, ETC 115
	§27.

	 	WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS
	§28.

	 	DEALINGS WITH THE BORROWER
	§29.

	 	CONSENTS, AMENDMENTS, WAIVERS, ETC
	§30.

	 	SEVERABILITY
	§31.

	 	TIME OF THE ESSENCE
	§32.

	 	NO UNWRITTEN AGREEMENTS
	§33.

	 	REPLACEMENT NOTES
	§34.

	 	NO THIRD PARTIES BENEFITED
	§35.

	 	HONORARY TITLES
	§36.

	 	USA PATRIOT ACT NOTICE







 












 





MASTER CREDIT AGREEMENT




     THIS MASTER CREDIT AGREEMENT (this “Agreement”) is made as of the 26 day of October,
2007, by and among EPT 301, LLC, a limited liability company duly organized and validly existing
under the laws of the State of Missouri (“EPT 301”), and any wholly-owned subsidiary of EPT
301 that satisfies all of the criteria set forth in §6.1(a), herein (collectively, jointly and
severally with EPT 301, the “Borrower-SPE”), and ENTERTAINMENT PROPERTIES TRUST, a real
estate investment trust duly organized and validly existing under the laws of the State of Maryland
(“EPR”) having its principal place of business at c/o Entertainment Properties Trust, 30
Pershing Road, Suite 201, Kansas City, MO 64108 [individually and collectively, jointly and
severally, Borrower-SPE (as further defined in §1.1 herein) and EPR are referred to as the
“Borrowers” or the “Borrower”, and each individually may be referred to as a
“Borrower”], the Lenders (as defined herein), KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent (“Keybank” and/or the “Agent”), and KEYBANC CAPITAL MARKETS,
as Sole Lead Arranger and Sole Book Manager.



RECITALS




     WHEREAS, this Agreement sets forth the terms and conditions upon which the Lenders have agreed
to, among other things, extend a term loan facility to the Borrower up to a maximum amount of
$120,000,000.00 (subject to increases as set forth in §2.2 herein);



     NOW, THEREFORE, in consideration of the recitals herein and mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each of the parties hereto, the parties hereby agree as follows:



§1. DEFINITIONS AND RULES OF INTERPRETATION.




     §1.1 Definitions. The following terms shall have the meanings set forth in this §l or
elsewhere in the provisions of this Agreement referred to below:



          Adjusted EBITDA. EBITDA for the most recent quarter ended, less the Replacement
Reserve amount.




          Affiliate. An Affiliate, as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control with, that Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling”, “controlled by” and “under common control with”), as applied to any Person, means
(a) the possession, directly or indirectly, of the power to vote ten percent (10%) or more of the
stock, shares, voting trust certificates, beneficial interest, partnership interests, member
interests or other interests having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or otherwise, or (b) the ownership of ten
percent (10%) or more of the (i) partnership or other ownership interest of any other Person




1









 







(other than as a limited partner of such other Person) or, (ii) a managing member’s interest
in a limited liability company.




          Agent. KeyBank National Association, acting as administrative agent for the Lenders,
and its permitted successors and assigns in such capacity in accordance with the terms of this
Agreement.




          Agent’s Head Office. The Agent’s head office located at 225 Franklin Street,
18th Floor, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time by notice to the Borrowers and the Lenders.




          Agent’s Special Counsel. Burns & Levinson LLP or such other counsel as selected by
Agent.




          Agreement. This Master Credit Agreement, including the Schedules and
Exhibits hereto.




          Allocated Loan Amount. For each Borrowing Base Asset, a portion of the Loan allocated
to such property by the Agent at the time of exercise of the Extension Option based upon the
percentage ratio of (i) the product of the applicable Borrowing Base Asset Value times fifty-five
percent (55%), to (ii) the then outstanding amount of the Loan.




          Applicable Margins. The “Applicable LIBOR Margin” and the “Applicable
Base Rate Margin” which are used in calculating the interest rate applicable to the LIBOR Rate
Loans and the Base Rate Loans are as follows: (i) LIBOR Margin 175 bps; (ii) Base Rate Margin 0 bps
(for purposes of this Agreement, “bps” shall mean and refer to basis points):




          Assignment and Acceptance Agreement. See §18.1.




          Assumed Debt Service. Interest expense incurred plus regularly scheduled amortization
payments calculated based upon the amount outstanding under the Loan with debt service calculated
based upon a 25-year mortgage-style amortization and interest calculated at the greater of: (a) the
actual interest rate then in effect; (b) the 10-year Treasury then in effect plus 150 bps; and (c)
6.00%.




          Assumed Debt Service Constant. The ratio, expressed as a percentage, of Assumed Debt
Service divided by that amount Outstanding under the Loan.




          Balance Sheet Date. June 30, 2007.




          Bankruptcy Code. Title 11, U.S.C.A., as amended from time to time or any successor
statute thereto.




          Base Rate. The greater of (a) the fluctuating annual rate of interest announced from
time to time by the Agent at the Agent’s Head Office as its “prime rate”, or (b) one half of one
percent (0.5%) above the Federal Funds Effective Rate (rounded upwards, if necessary, to the next
one-eighth of one percent). The Base Rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer, and which such rate serves as
the




2









 







basis upon which effective rates of interest are calculated for obligations making reference
thereto. Any change in the rate of interest payable hereunder resulting from a change in the Base
Rate shall become effective as of the opening of business on the day on which such change in the
Base Rate becomes effective, without notice or demand of any kind.




          Base Rate Loans. Collectively, those portions of the Loan bearing interest calculated
by reference to the Base Rate.




          Base Rent. With respect to any Lease, the minimum periodic contractual rent payable
thereunder, excluding reimbursement or recovery of common area maintenance or other property
operating expenses and excluding percentage rent.




          Borrower(s). As defined in the preamble hereto, and which such term shall include the
Borrower-SPE.




          Borrower-SPE. Individually, collectively, jointly and severally, EPT 301, LLC and any
wholly-owned Subsidiary of EPT 301, LLC which owns a Borrowing Base Asset and otherwise meets the
definition and requirements of a Special Purpose Entity, is approved by the Agent, and executes and
delivers to the Agent, a joinder to this Agreement in form and substance satisfactory to the Agent.




          Borrowing Base. The amount which is the lesser of (a) fifty-five percent (55%) of
Borrowing Base Asset Value, or (b) the Underwriteable Cash Flow generated by the Borrowing Base
Assets divided by two (2.00), and then further divided by the Assumed Debt Service Constant.




          Borrowing Base Asset Value. With respect to the Borrowing Base Assets, the aggregate
amount of Underwriteable Cash Flow as of the end of the most recent quarter, with pro forma
adjustments for any assets acquired or sold during the relevant period, capitalized at the rate of
(i) 9.00% for any Megaplex Movie Theatres and other Entertainment Related Retail Improvements; and
(ii) 10.00% for all Borrowing Base Assets that are not Megaplex Movie Theatres or other
Entertainment Related Retail Improvements. Borrowing Base Asset or Borrowing Base Assets.
The Eligible Real Estate owned or leased by the Borrower-SPE or subject to an EPR Senior First
Mortgage, to be included in the calculation of Borrowing Base, and which has been approved by Agent
and Required Lenders in their sole discretion. Insofar as Borrowing Base Assets consist of
Eligible Real Estate that is subject to an EPR Senior First Mortgage, the term “Borrowing Base
Asset” shall be deemed to refer to such Eligible Real Estate or the related EPR Senior Property
Loan, as the context may require. The Borrowing Base Assets shall initially consist of those
assets noted on Schedule 1.1 attached hereto (collectively, the “Initial Borrowing Base
Assets”).




          Subsequent to Closing hereunder, the Borrowers may add other Eligible Real Estate or
substitute other Eligible Real Estate for all or a portion of the Initial Borrowing Base Assets
subject to the compliance with the terms of this Agreement.




3









 








          Borrowing Base Asset Net Operating Income (or Borrowing Base Asset NOI). For any
period, as follows:




          (a) Megaplex Movie Theatres, Entertainment-Related Retail Improvements, Other Properties and
Land Under Development. With respect to any Borrowing Base Asset (other than Borrowing Base Asset
encumbered by an EPR Senior First Mortgage), the aggregate of actual recurring “property revenues”
earned and received by Borrower-SPE in such period (provided however that any amounts accrued shall
only include those amounts not more than 45 days delinquent in arrears) for the Borrowing Base
Asset (including base rent and expense reimbursement, but excluding straight line and percentage
rent), and all as otherwise determined in accordance with GAAP together with recoveries from
tenants as determined in accordance with GAAP, all such amounts shall be attributable to such
period and accrued according to GAAP, less (i) all “property expenses” consisting solely of
expenses incurred or accrued by the Borrower-SPE that are directly related to the operation and
ownership of such Borrowing Base Asset, including any real estate taxes, sales taxes, common area
maintenance charges, accounting and administration, security, utilities, maintenance, janitorial,
premiums for casualty and liability insurance or ground lease payments (excluding from the
foregoing expenses for depreciation, amortization, interest and leasing commissions with respect to
such Borrowing Base Asset) actually paid by Borrower-SPE, and (ii) an allowance for property
management expenses calculated at the greater of (A) three percent (3.0%) of Base Rent or (B)
actual property management expenses (the “Management Expense”), and (iii) the Replacement
Reserve (provided, however, that the deduction described in the preceding clause (iii) shall not
apply to Borrowing Base Assets consisting of land under development which is subject to a Lease).
If such period is less than a year, expenses described in clause (i) above that are payable less
frequently than monthly during the course of a year (e.g., real estate taxes and insurance
premiums) shall be adjusted by “straight lining” the amounts so that such expenses are accrued on a
monthly basis over the course of a year and fairly stated for each period. In the event that
information for trailing four (4) quarters or for any other period as may be required hereunder, is
not available for a Borrowing Base Asset described above, then, if such Borrowing Base Asset is a
new theatre or a new Lease executed by Tenant and Borrower-SPE in connection with the acquisition
of a Borrowing Base Asset, then for purposes of this calculation, “property revenues” shall mean
the actual annual base rent on an effective triple net basis for the Borrowing Base Asset, as
provided for in the applicable Lease less the Management Expense and less the Replacement Reserve.
Additionally, as the Borrowing Base Asset financial information becomes available (i.e. after the
Borrowing Base Asset has been in operation for one quarter, two quarters, etc.) such actual
information shall be used, as adjusted, by “annualizing” the amounts so that such amounts are
received on a monthly basis over the course of a year and fairly stated for each period, and as
further adjusted for “property expenses,” Management Expense and Replacement Reserves.




          (b) EPR Senior First Mortgages. With respect to any Borrowing Base Asset that is encumbered
by an EPR Senior First Mortgage, the interest income under the related EPR Senior Property Loan for
such period (provided that it is deemed collectible within the next 45 days, and provided however
that any amounts accrued shall only include those amounts not more
than 45 days delinquent in arrears) for the Borrowing Base Asset, all such amounts to be
attributed to such period and accrued and determined in accordance with GAAP, less (i) all
“property expenses” (as set forth in (a), above), actually paid by Borrower-SPE, and (ii) an




4









 







allowance for the Management Expense and (iii) the Replacement Reserve (provided, however, that the
deduction described in the preceding clause (iii) shall not apply to Borrowing Base Assets
consisting of land under development which is subject to an EPR Senior First Mortgage). If a
Borrowing Base Asset encumbered by an EPR Senior First Mortgage has been in existence for less than
a year or any other computational period hereunder, expenses described in clause (i) above that are
payable less frequently than monthly during the course of a year (e.g., real estate taxes and
insurance premiums) shall be adjusted by “straight lining” the amounts so that such expenses are
accrued on a monthly basis over the course of a year and fairly stated for each period. In the
event that information for trailing four (4) quarters or for any other period as may be required
hereunder, is not available for a Borrowing Base Asset described above, then for purposes of this
calculation, “interest income” shall mean the actual annual interest income for the Borrowing Base
Asset, as provided for in the applicable EPR Senior First Mortgage less the Management Expense and
less the Replacement Reserve. Additionally, as the Borrowing Base Asset financial information
becomes available (i.e. after the Borrowing Base Asset has been in operation for one quarter, two
quarters, etc.) such actual information shall be used, as adjusted, by “annualizing” the amounts so
that such amounts are received on a monthly basis over the course of a year and fairly stated for
each period, and as further adjusted for “property expenses,” Management Expense and Replacement
Reserves.




          Borrowing Base Asset Replacement. Any substitution, replacement or addition of a
Borrowing Base Asset hereunder, pursuant to § 5.3 and §12.




          Building. With respect to each Property or parcel of Real Estate, all of the
buildings, structures and improvements now or hereafter located thereon.




          Business Day. Any day of the year on which commercial banks are not required or
authorized by law to be closed for business in New York, New York or Boston, Massachusetts. If any
day on which a payment is due is not a Business Day, then the payment shall be due on the next day
following which is a Business Day. Further, in the event a payment is due on a specified day of
the month, if there is no corresponding day for a payment in the given calendar month (i.e., there
is no “February 30th”), the payment shall be due on the last Business Day of the
calendar month.




          Capitalized Lease. A lease under which the discounted future rental payment
obligations of the lessee or the obligor are required to be capitalized on the balance sheet of
such Person in accordance with GAAP.




          Capital Stock. With respect to any Person, any capital stock (including preferred
stock), shares, interests, participations or other ownership interests (however designated) of such
Person and any rights (other than debt securities convertible into or exchangeable for corporate
stock), warrants or options to purchase any thereof.




          CERCLA. See §6.20.




          Change in Control. A Change in Control shall exist upon the occurrence of any of the
following:




5









 








          (a) any Person (including a Person’s Affiliates and associates) or group (as that term is
understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and the rules and regulations thereunder) shall have acquired after the
Closing Date beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a
percentage (based on voting power, in the event different classes of stock shall have different
voting powers) of the voting stock of any such other Person equal to at least fifty percent (50%);
or




          (b) as of any date a majority of the managers or other controlling members of any Person
consists of individuals who were not either (i) managers or otherwise controlling members or
entities, as the case may be, of such Person as of the corresponding date of the previous year
(provided, however, that the initial managers and controlling members for reference purposes of
this clause (c)(i) shall be the managers and controlling members as of the Closing Date), (ii)
selected or nominated to become managers or controlling members by the other managers or
controlling members of said Person of which a majority consisted of individuals described in clause
(c)(i) above, or (iii) selected or nominated to become managers or otherwise controlling members by
such managers or controlling members of said Person of which a majority consisted of individuals or
entities, as the case may be, described in clause (c)(i), above or individuals or entities, as the
case may be, described in clause (c)(ii), above.




          Closing Date. The first date on which all of the conditions set forth in §10 have
been initially satisfied and the Loan has been funded.




          Code. The Internal Revenue Code of 1986, as amended.




          Collateral Agreement. That certain Collateral Pledge and Security Agreement dated as
of the date herewith by and between EPR and Lenders, pledging EPR’s equity interests in the
Borrower-SPE.




          Commission. The Securities and Exchange Commission.




          Commitment. With respect to each Lender, the amount set forth on Schedule 1
hereto, as the aggregate amount of such Lender’s commitment to lend funds hereunder, as the same
may be changed from time to time in accordance with the terms of this Agreement.




          Commitment Percentage. With respect to each Lender, the percentage set forth on
Schedule 1 hereto as such Lender’s percentage of the Total Commitment, as the same may be
changed from time to time in accordance with the terms of this Agreement.




          Compliance Certificate. See §7.4(c).




          Condemnation Proceeds. All compensation, awards, damages, rights of action and
proceeds awarded to the Borrowers by reason of any Taking, net of all reasonable amounts actually
expended to collect the same.




          Consolidated. With reference to any term defined herein, that term as applied to the
accounts of a Person and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP.




6









 








          Consolidated EBITDA. With respect to any period, an amount equal to the EBITDA of EPR
and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.




          Consolidated Interest Incurred. For any period, interest incurred on all Indebtedness
of EPR and its Subsidiaries (regardless of whether such interest was expensed or capitalized in
accordance with GAAP), determined on a consolidated basis in accordance with GAAP excluding
amortization of deferred loan costs.




          Consolidated Tangible Net Worth. The total consolidated Tangible Net Worth of EPR and
its Subsidiaries.




          Contingent Obligations. As to any Person, means any obligation of such Person
guaranteeing or intending to guaranty any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly
or indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the payment of, or the ability of the primary obligor to make payment of,
such primary obligation or (d) otherwise to assure or hold harmless the owner of such primary
obligation against loss in respect thereof; provided that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the ordinary course of
business or contracting for purchase of real property in the ordinary course of business, or
obligations, indemnifications or guarantees of liabilities other than with respect to the repayment
of any Indebtedness, such as environmental indemnities or “bad acts” indemnities, unless such
obligations, indemnifications or guarantees are being enforced by any applicable party entitled to
rely thereon. The amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as determined by such
Person in good faith.




          Conversion/Continuation Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with §4.1.




          Debt Service. Consolidated Interest Incurred plus regularly scheduled amortization
payments (excluding balloon maturities).




          Default. See §12.1 herein.




          Default Rate. See §4.12.




7









 








          Derivative Obligations. All Interest Rate Contracts and other obligations of any
Person in respect of any interest rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap forward equity transaction, equity or
equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, forward transaction, collar transaction, currency swap, cross-currency rate swap
transaction, forward transaction, collar transaction, currency swap, cross-currency rate swap
transaction, currency option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing transactions.




          Distribution. With respect to any Person, the declaration or payment of any cash
dividend or distribution on or in respect of any shares of any class of capital stock or other
beneficial interest of such Person; the purchase, redemption, exchange or other retirement by such
Person of any shares of any class of capital stock or other beneficial interest of such Person,
directly or indirectly through a Subsidiary of such Person or otherwise; the return of capital by
such Person to its shareholders, partners, members or other owners as such; or any other
distribution on or in respect of any shares of any class of capital stock or other beneficial
interest of such Person; provided, however, that the dividend or distribution of common stock of a
Person shall not constitute a Distribution with respect to such Person.




          Dollars or $. Dollars in lawful currency of the United States of America.




          Domestic Lending Office. Initially, the office of each Lender designated as such on
Schedule 1 hereto; thereafter, such other office of such Lender, if any, located within the
United States that will be making or maintaining Base Rate Loans.




          Drawdown Date. The date on which the Loan is made or is to be made, including any
such amount advanced pursuant to §2.2, and the date on which any portion of the Loan is converted
in accordance with §4.1.




          EBITDA. With respect to any Person (or any asset of any Person) for any period, all
as determined in accordance with GAAP, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expensed and income taxes for such period minus (c) equity in
earnings from unconsolidated Subsidiaries for such period plus (d) ordinary cash
distributions (exclusive of any distributions received from capital events) actually received from
such unconsolidated Subsidiaries for such period, minus (e) straight line rents for such
period, minus (f) any gains (plus the losses) from extraordinary items or asset
sales or writeups or forgiveness of debt for such period. All of the foregoing to be calculated
without duplication and with respect to (b) — (f), only to the extent the same has been included
in the calculation of such net income.




8









 








          Eligible Real Estate. Real Estate:




     (a) which is owned in fee by the Borrower-SPE; or (ii) which is encumbered by a
ground lease to the Borrower-SPE, acceptable to the Agent in its
reasonable discretion; or (iii) in which Borrower-SPE holds an EPR Senior First
Mortgage, acceptable to the Agent in its reasonable discretion;




     (b) which is located within the contiguous 48 States of the continental United
States;




     (c) which consists of one or more of the following income-producing properties:




          (i) Megaplex Movie Theatre;




          (ii) Entertainment-Related Retail Improvements; or




          (iii) real estate and/or improvements which are neither (i) or (ii) above,
including without limitation, income producing land under development subject to a
Lease or an EPR Senior First Mortgage;




     (d) which is subject to a Lease to a third party (or parties) or to an EPR
Senior First Mortgage, in each case which is not in default, and under which the
Tenant, other approved tenant or EPR Mortgagor, as the case may be, is in actual
occupancy of the property, provided however, that copies of all Leases or EPR Senior
First Mortgages for any Borrowing Base Asset shall be provided to Agent or any
Lender upon request therefor;




     (e) as to which all of the representations set forth in §6 of this Agreement
concerning Borrowing Base Assets are true and correct;




     (f) as to which the Agent and the Required Lenders, as applicable, have
received and approved all Eligible Real Estate Qualification Documents, or will
receive and approve them prior to inclusion of such Real Estate as a Borrowing Base
Asset;




     (g) which does not cause a violation of the Borrowing Base; and




     (h) which is approved by the Agent and Required Lenders in their sole
discretion.




          Eligible Real Estate Qualification Documents. See Schedule 3 attached hereto.




          Employee Benefit Plan. Any employee benefit plan within the meaning of §3(3) of ERISA
maintained or contributed to by either of the Borrower or any ERISA Affiliate, other than a
Multiemployer Plan.




9









 








          Entertainment-Related Retail Improvements. Real estate owned by the Borrower-SPE or
encumbered by an EPR Senior First Mortgage that is used for retail purposes including but not
limited to restaurants, bowling alleys, arcades, and other leisure venues that are adjacent to and
complement the operation of a Megaplex Movie Theater.




          Environmental Laws. See §6.20(a).




          EPR Mortgagor. A party which borrows pursuant to the terms of an EPR Senior Property
Loan, which such loan is secured by an EPR Senior First Mortgage and is otherwise evidenced by the
EPR Senior Property Loan Documents.




          EPR Senior First Mortgage. A first priority senior mortgage granted to Borrower-SPE
by an EPR Mortgagor securing an EPR Senior Property Loan and encumbering any real estate and
improvements thereon, and upon which no other lien exists except for liens for unpaid taxes,
assessments and the like, not yet due and payable and liens on equipment and the like owned or
leased by the EPR Mortgagor which are permitted pursuant to the terms of the related EPR Senior
Property Loan Documents, consisting of purchase money liens or liens on capital leases.




          EPR Senior Property Loan. A first priority mortgage loan made to the owner of any
real estate and improvements thereon.




          EPR Senior Property Loan Documents. Collectively, a promissory note from an EPR
Mortgagor to Borrower-SPE, the EPR Senior First Mortgage serving as collateral for said note, along
with any related assignment of leases and rents from said EPR Mortgagor to Borrower-SPE and any
other documents or instruments delivered to Borrower-SPE evidencing or securing a EPR Senior
Property Loan. This term may also refer to such loan documents evidencing more than one EPR Senior
Property Loan.




          Equity Issuance. The issuance and sale after December 30, 2005 by any of EPR or its
Subsidiaries of any equity securities of EPR or its Subsidiaries to any Person who is not EPR or
one of its Subsidiaries, including without limitation: (a) shares of its Capital Stock, (b) any
shares of its Capital Stock pursuant to the exercise of options or warrants or (c) any shares of
its Capital Stock pursuant to the conversion of any debt securities to equity.




          Equity Rights. With respect to any Person, any subscriptions, options, warrants,
commitments preemptive rights or agreements of any kind (including without limitation, any
shareholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or
securities convertible into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type, in such Person.




          ERISA. The Employee Retirement Income Security Act of 1974, as amended and in effect
from time to time.




          ERISA Affiliate. Any Person which is treated as a single employer with the Borrower
under §414 of the Code.




10









 








          ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan
within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the
requirement of notice has not been waived.




          Event of Default. See §12.1.




          Exhibitor EBITDAR. Shall be determined as follows:




          (a) The actual EBITDA of the exhibitor/tenant at a Borrowing Base Asset, which EBITDA is
derived specifically from said Borrowing Base Asset, plus the rent expense of that exhibitor/tenant
at said Borrowing Base Asset (the “Actual Exhibitor EBITDAR”). The Lenders recognize that
the Borrowers are not entitled to receive full financial disclosure of the income statement of an
exhibitor/tenant, which would allow the calculation of Actual Exhibitor EBITDAR, but may receive
such information as a courtesy.




          (b) In the event that such Actual Exhibitor EBITDAR is not available, then the calculation of
Exhibitor EBITDAR shall be based upon the actual trailing 4 quarters revenue of the
exhibitor/tenant at said Borrowing Base Asset multiplied by an assumed Exhibitor EBITDAR margin of
thirty-six percent (36%) (the “Assumed Exhibitor EBITDAR”).




          (c) In the event that such Assumed Exhibitor EBITDAR is not available, then the calculation of
Exhibitor EBITDAR shall be based upon the trailing 4 quarters box office receipts of the
exhibitor/tenant at said Borrowing Base Asset as determined by EDI Neilsen, divided by .70, to
arrive at total revenues, and multiplied by an assumed Exhibitor EBITDAR margin of thirty-six
percent (36%) (the “Neilsen Exhibitor EBITDAR”).




          (d) Notwithstanding anything to the contrary contained herein, but subject to the defined term
Underwriteable Cash Flow, for any exhibitor/tenant theatre which has been in operation for less
than four (4) quarters, Exhibitor EBITDAR shall be deemed to equal the Borrowing Base Asset Net
Operating Income for such Borrowing Base Asset.




          Further, notwithstanding anything to the contrary contained herein, where there is an assumed
Exhibitor EBITDAR margin of thirty-six percent (36%), such margin shall be assumed, provided
however, in the event that Agent determines in good faith that a thirty-six percent (36%) Exhibitor
EBITDAR margin is no longer accurate, it may, from time to time, adjust the assumed Exhibitor
EBITDAR margin for purposes of this calculation.




          Federal Funds Effective Rate. For any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published the average of the quotations for such day on such transactions
received by the Agent from three (3) Federal funds brokers of recognized standing selected by the
Agent.




          Fixed Charges. Debt Service plus the amount of any preferred dividends incurred for
the applicable period.




11









 








          FFO. With respect to EPR and its Subsidiaries on a consolidated basis, “funds from
operations” as defined in accordance with resolutions adopted by the Board of Governors
of the National Association of Real Estate Investment Trusts as in effect on the date of
Closing, and as amended from time to time, subject, however, to the provisions of Section 1.3(b)
herein.




          GAAP. Principles that are (a) consistent with the principles promulgated or adopted
by the Financial Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person adopting the same
principles; provided that a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than
a qualification regarding changes in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.




          Guarantee. A Guarantee by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to secure, purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising
by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to provide collateral security, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part), provided that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of
business. The term “Guarantee” used as a verb has a corresponding meaning.




          Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrowers or any ERISA Affiliate the benefits of
which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA,
other than a Multiemployer Plan.




          Hazardous Substances. See §6.20(b).




          Indebtedness. Indebtedness of any Person means at any date, without duplication, all
obligations, contingent and otherwise, direct or indirect, in respect of (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under Capitalized Leases, (v) all
obligations of such Person to reimburse any bank or other Person in respect of amounts payable
under a banker’s acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event such
Person is a corporation), (vii) all obligations of such Person to reimburse any bank or other
Person in respect of amounts paid or to be paid under a letter of credit or similar instrument,
(viii) all Indebtedness of others secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person, (ix) all obligations of such Person with respect to
interest rate protection agreements, foreign currency exchange agreements or other hedging
arrangements (valued as the termination value thereof computed in




12









 







accordance with a method approved
by the International Swap Dealers Association and agreed to
by such Person in the applicable hedging agreement, if any), and (x) all Indebtedness of
others Guaranteed by such Person.




          Independent Director. An individual reasonably satisfactory to Agent, who (a) shall
not be during such individual’s term as Independent Director and (b) shall not have been at any
time during the preceding five (5) years (i) other than in his or her capacity as an Independent
Director or other similar capacity, a partner, member or shareholder of, or an officer or employee
of, any Borrower or any of its Subsidiaries or Affiliates, (ii) a customer or a supplier to any
Borrower or any of its Subsidiaries or Affiliates, (iii) an individual controlling any such
supplier or customer or (iv) a member of the immediate family of any officer, employee, supplier or
customer of any other director of any Borrower or any of its Subsidiaries or Affiliates.




          Insurance Proceeds. All insurance proceeds, damages, claims and rights of action and
the right thereto under any insurance policies relating to any portion of any Borrowing Base Asset,
net of all reasonable amounts actually expended to collect the same.




          Interest Payment Date. As to each Loan, the first (1st) day of each calendar month
during the term of such Loan.




          Interest Period. With respect to each LIBOR Rate Loan (a) initially, the period
commencing on the Drawdown Date of such LIBOR Rate Loan and ending one, two or three months
thereafter, and (b) thereafter, each period commencing on the day following the last day of the
next preceding Interest Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion/Continuation Request;
provided that all of the foregoing provisions relating to Interest Periods are subject to
the following:




          (i) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that
is not a LIBOR Business Day, such Interest Period shall end on the next succeeding LIBOR Business
Day, unless such next succeeding LIBOR Business Day occurs in the next calendar month, in which
case such Interest Period shall end on the next preceding LIBOR Business Day, as determined
conclusively by the Agent in accordance with the then current bank practice in London;




          (ii) if the Borrower shall fail to give notice as provided in §4.1, the Borrower shall be
deemed to have requested a conversion of the affected LIBOR Rate Loan to a Base Rate Loan on the
last day of the then current Interest Period with respect thereto; and




          (iii) no Interest Period relating to any LIBOR Rate Loan shall extend beyond the Maturity
Date.




          Notwithstanding anything to the contrary contained in this Agreement, in no event shall the
Interest Period hereunder exceed one month at any time prior to the earlier to occur of (x) ninety
(90) days after the Closing Date, or (y) the Agent declaring the syndication is complete hereunder.




13









 








          Interest Rate Contracts. Interest rate swap, collar, cap or similar agreements
providing interest rate protection.




          Investments. With respect to any Person, all shares of capital stock, evidences of
Indebtedness and other securities issued by any other Person and owned by such Person, all loans,
advances, or extensions of credit to, or contributions to the capital of, any other Person, all
purchases of the securities or business or integral part of the business of any other Person and
commitments and options to make such purchases, all interests in real property, and all other
investments; provided, however, that the term “Investment” shall not include (i)
equipment, inventory and other tangible personal property acquired in the ordinary course of
business, or (ii) current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade terms. In determining
the aggregate amount of Investments outstanding at any particular time: (a) there shall be
included as an Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (b) there shall be deducted in respect of each
Investment any amount received as a return of capital; (c) there shall not be deducted in respect
of any Investment any amounts received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as provided in the foregoing clause
(a) may be deducted when paid; and (d) there shall not be deducted in respect of any Investment any
decrease in the value thereof.




          Lease Summaries. Summaries or abstracts of the material terms of the Leases. Such
Lease Summaries shall be in form and substance reasonably satisfactory to the Agent.




          Lease. Any leases, license and agreement relating to the use or occupation of space
in any Building or of any Real Estate including without limitation any ground leases therefor
(collectively, the “Leases”).




          Lenders. KeyBank, the other lending institutions which are or may be a party hereto
from time to time and any other Person which becomes an assignee of any rights of a Lender pursuant
to §18 (but not including any participant as described in §18.4 as identified on Schedule
1 hereto).




          Leverage Ratio. The percentage determined by dividing the Total Debt by the Total
Asset Value.




          LIBOR. As applicable to any Interest Period for any LIBOR Rate Loan, the rate per
annum (rounded upwards, if necessary, to the nearest 1/32nd of one percent) as determined on the
basis of the offered rates for deposits in Dollars, for the period of time comparable to such
Interest Period which appears on the Telerate page 3750 as of 11:00 a.m. London time on the day
that is two (2) LIBOR Business Days preceding the first day of such Interest Period; provided,
however, if the rate described above does not appear on the Telerate System on any applicable
interest determination date, LIBOR shall be the rate (rounded upwards as described above, if
necessary) for deposits in Dollars for a period substantially equal to the Interest Period on the
Reuters Page “LIBO” (or such other page as may replace the LIBO Page on that service for the
purpose of displaying such rates), as of 11:00 a.m. (London Time), on the day that is two (2)
LIBOR Business Days prior to the beginning of such Interest Period. If both the Telerate and




14









 







Reuters systems are unavailable, then the rate for that date will be determined on the basis of the
offered rates for deposits in Dollars for a period of time comparable to such Interest Period which
are offered by four major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) LIBOR Business Days preceding the first day of such Interest
Period as selected by Agent. The principal London office of each of the four major London banks
will be requested to provide a quotation of its U.S. dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided, the rate for that date will be determined on the basis
of the rates quoted for loans in Dollars to leading European banks for a period of time comparable
to such Interest Period offered by major banks in New York City at approximately 11:00 a.m. (New
York City time), on the day that is two (2) LIBOR Business Days preceding the first day of such
Interest Period. In the event that Agent is unable to obtain any such quotation as provided above,
it will be deemed that LIBOR pursuant to a LIBOR Rate Loan cannot be determined and the provisions
of §4.6 shall apply. In the event that the Board of Governors of the Federal Reserve System shall
impose a Reserve Percentage with respect to LIBOR deposits of Agent, then for any period during
which such Reserve Percentage shall apply, LIBOR shall be equal to the amount determined above
divided by an amount equal to 1 minus the Reserve Percentage.




          LIBOR Business Day. Any day on which commercial banks are open for international
business (including dealings in Dollar deposits) in London, England.




          LIBOR Lending Office. Initially, the office of each Lender designated as such on
Schedule 1 hereto; thereafter, such other office of such Lender, if any, that shall be
making or maintaining LIBOR Rate Loans.




          LIBOR Rate Loans. Collectively, those portions of the Loan bearing interest
calculated by reference to LIBOR.




          Lien. See §8.2.




          Loan Documents. This Agreement, the Notes, the Collateral Agreement and all other
documents, instruments or agreements now or hereafter executed or delivered by or on behalf of the
Borrower in connection with the Loans.




          Loan. The term loan advanced to Borrower hereunder in the original principal amount
of $120,000,000.00 by the Lenders, as more particularly described in §2, herein.




          Loan Amount. The aggregate amount of the $120,000,000.00 Loan, plus any increase
thereto pursuant to §2.2 herein.




          Loans. Collectively, all portions of the Loan advanced as LIBOR Rate Loans and as
Base Rate Loans.




          Management Agreements. Agreements, whether written or oral, providing for the
management of the Borrowing Base Assets or any of them.




15









 








          Material Adverse Effect. A material adverse effect on (a) the business, properties,
assets, condition (financial or otherwise) or results of operations of the Borrowers and any of
their Subsidiaries considered as a whole; (b) the ability of the Borrowers to perform any of their
obligations under the Loan Documents; or (c) the validity or enforceability of any of the Loan
Documents or the rights or remedies of Agent or the Lenders thereunder.




          Maturity Date. October 26, 2011, or such earlier date on which the Loan shall become
due and payable pursuant to the terms hereof, or October 26, 2012, if said Maturity Date is
extended pursuant to §3.5, herein.




          Megaplex Movie Theatre. A theater constructed or substantially remodeled subsequent
to 1995 for the showing of first run motion pictures which theater contains at least fourteen
screens, stadium style seating, digital sound and enhanced seat design.




          Minority Interest. As to any Person, an ownership or other equity investment in any
other Person, which investment is not consolidated with the accounts of such Person in accordance
with GAAP.




          Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA
maintained or contributed to by the Borrower or any ERISA Affiliate.




          Net Equity Proceeds. The aggregate consideration received by EPR and/or any of its
Subsidiaries in respect of any Equity Issuance, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees and sales commissions) and (b) taxes paid
or payable as a result thereof; it being understood, (i) that “Net Equity Proceeds” shall include,
without limitation, any cash received upon the sale or other disposition of any non-cash
consideration received by EPR and/or any of its Subsidiaries in any Equity Issuance, and (ii) that
“Net Equity Proceeds” shall not include cash proceeds that are applied within thirty (30) days of
the date of the related Equity Issuance to retire Capital Stock.




          Net Income (or Loss). With respect to any Person (or any asset of any Person) for any
period, the net income (or loss) of such Person (or attributable to such asset), determined in
accordance with GAAP. The net income (or loss) of a Person shall include, without duplication, the
allocable share of the net income (or loss) of any other Person in which a Minority Interest is
owned by such Person based on the ownership of such Person in such other Person.




          Net Rentable Area. With respect to any Real Estate, the floor area of any buildings,
structures or improvements available for leasing to tenants determined in accordance with the Rent
Roll for such Real Estate, the manner of such determination to be reasonably consistent for all
Real Estate of the same type unless otherwise approved by the Agent.




          Notes. Collectively, the promissory notes executed by Borrower in connection with the
Loan hereunder, as more particularly set forth in §2.1(b), herein.




          Notice. See §19 herein.




          Obligations. All indebtedness, obligations and liabilities of the Borrowers to any of
the Lenders or the Agent, individually or collectively, under this Agreement or any of the




16









 







other
Loan Documents or in respect of any of the Loans, the Notes, or other instruments at any time
evidencing any of the foregoing, whether existing on the date of this Agreement or arising or
incurred hereafter, direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law
or otherwise.




          Obligors, or Obligor. Collectively, Borrowers and any other party (other than the
Agent, or a Lender) that may become obligated under this Agreement (“Obligors”);
individually, each Borrower which is or may become obligated under this Agreement
(“Obligor”).




          Outstanding. With respect to the Loans, the aggregate unpaid principal thereof as of
any date of determination.




          PBGC. The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any
successor entity or entities having similar responsibilities.




          Permitted Encumbrances. Each Lien granted pursuant to any of the Permitted Liens and
the security interests and defects in title as set forth on Schedule B of the title insurance
policies issued in connection with the Borrowing Base Assets, provided such security interests and
defects in title shall not affect the operation, marketability or value of any Borrowing Base
Asset.




          Permitted Liens. Liens, security interests and other encumbrances permitted by §8.2.




          Person. Any individual, corporation, limited liability company, partnership, trust,
unincorporated association, business, or other legal entity, and any government or any governmental
agency or political subdivision thereof, including but not limited to the Borrowers.




          Plan Assets. Assets of any employee benefit plan subject to Part 4, Subtitle A, Title
I of ERISA.




          Potential Borrowing Base Asset. Any property of a Borrower which is not at the time
included in the Borrowing Base and which consists of (i) Eligible Real Estate, or (ii) Real Estate
which is capable of becoming Eligible Real Estate through the approval of the Required Lenders and
the completion and delivery of Eligible Real Estate Qualification Documents.




          Rating Agencies. Fitch IBCA, Inc., Standard & Poor’s Rating Services, Inc. or Moody’s
Investors Service, Inc.




          Real Estate. All real property in which EPR or any of its Subsidiaries has a fee,
leasehold, mortgage or other interest, including, without limitation, the Borrowing Base Assets.




          Record. The grid attached to any Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by the Agent with respect to the Loan.




17









 








          Redeemable Preferred Stock. Any preferred stock issued by a Person which is at any
time prior to the Maturity Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.




          Register. See §18.2 herein.




          REIT Status. With respect to EPR its status as a real estate investment trust as
defined in §856(a) of the Code.




          Release. See §6.20(c)(iii) herein.




          Rent Roll. A report prepared by the Borrower showing for each Borrowing Base Asset
owned or leased by the Borrower-SPE its occupancy, lease expiration dates, lease rent and other
information in substantially the form presented to the Lenders prior to the date hereof or in such
other form as may have been approved by the Agent.




          Replacement Reserve. (i) With respect to any Real Estate now or hereafter owned or
leased by Borrower, an amount equal to twenty cents ($.20) per annum multiplied by the Net Rentable
Area of such Real Estate, and (ii) with respect to any Real Estate that is subject to an EPR Senior
First Mortgage, an amount equal to twenty cents ($.20) per annum multiplied by Borrower’s
reasonable good faith estimate of what the “Net Rentable Area” of such Real Estate would have been
had such Real Estate been subject to a Lease rather than an EPR Senior First Mortgage.




          Required Lenders. As of any date, the Lender or Lenders (which may also include the
Agent as a Lender) whose aggregate Commitment Percentage is equal to or greater than sixty-six and
2/3 percent (66-2/3%) of the Total Commitment.




          Reserve Percentage. For any day with respect to a LIBOR Rate Loan, the maximum rate
(expressed as a decimal) at which any lender subject thereto would be required to maintain reserves
(including, without limitation, all base, supplemental, marginal and other reserves) under
Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against “Eurocurrency Liabilities” (as that term
is used in Regulation D or any successor or similar regulation), if such liabilities were
outstanding. The Reserve Percentage shall be adjusted automatically on and as of the effective
date of any change in the Reserve Percentage.




          State. A state of the United States of America.




          Subsidiary. Any corporation, association, partnership, trust, or other business
entity of which the designated parent shall at any time own directly or indirectly through a
Subsidiary or Subsidiaries at least a majority (by number of votes or controlling interests) of the
outstanding voting interests or other economic interest and which are consolidated with the
parent, including without limitation, under this Agreement, Borrower-SPE as a Subsidiary of
EPR.




          Survey. An instrument survey of each parcel of Borrowing Base Asset prepared by a
registered land surveyor which shall show the location of all buildings, structures,




18









 







easements and
utility lines on such property, shall be sufficient to remove the standard survey exception from
the Title Policy, shall show that all buildings and structures are within the lot lines of the
Borrowing Base Asset and shall not show any encroachments by others (or to the extent any
encroachments are shown, such encroachments shall be acceptable to the Agent in its reasonable
discretion), shall show rights of way, adjoining sites, establish building lines and street lines,
the distance to and names of the nearest intersecting streets and such other details as the Agent
may reasonably require; and shall show whether or not the Borrowing Base Asset is located in a
flood hazard district as established by the Federal Emergency Management Agency or any successor
agency or is located in any flood plain, flood hazard or wetland protection district established
under federal, state or local law.




          Surveyor Certification. With respect to each parcel of Borrowing Base Asset, a
certificate executed by the surveyor who prepared the Survey with respect thereto and containing
such information relating to such parcel as the Title Insurance Company may reasonably require.




          Taking. The taking or appropriation (including by deed in lieu of condemnation) of
any Borrowing Base Asset, or any part thereof or interest therein, for public or quasi-public use
under the power of eminent domain, by reason of any public improvement or condemnation proceeding,
or in any other manner or any damage or injury or diminution in value through condemnation, inverse
condemnation or other exercise of the power of eminent domain.




          Tangible Net Worth. The equity of any Person as determined in accordance with GAAP,
less the total book value of all assets of such Person properly classified as intangible assets
under generally accepted accounting principles, including such items as goodwill, the purchase
price of acquired assets in excess of the fair market value thereof, trademarks, trade names,
service marks, brand names, copyrights, patents and licenses, and rights with respect to the
foregoing.




          Tenant. A tenant of the Borrower-SPE which leases space in a Borrowing Base Asset
pursuant to a Lease.




          Third Party Information. Information provided by or in reliance on information
provided by tenants, EPR Mortgagors, or other independent sources acceptable to Agent, and upon
which Borrower relies and has no knowledge or reason to believe is false, inaccurate or misleading
in any respects.




          Title Insurance Company. A nationally recognized title insurance company (and/or any
other title insurance company or companies approved by the Agent in its sole discretion).




          Title Policy. With respect to each parcel of Borrowing Base Asset, an ALTA standard
form title insurance policy (or, if such form is not available, an equivalent, legally promulgated
form of mortgagee title insurance policy reasonably acceptable to the Title Insurance Company)
issued by a Title Insurance Company insuring that the Borrower-SPE holds marketable fee simple
title to or a valid and subsisting leasehold interest in such parcel.



19









 











          Total Asset Value. The sum of: (1) unrestricted cash and marketable securities held
by EPR and its Subsidiaries; plus (2) Total Real Estate Value; plus (3) non-income producing real
estate at cost of EPR and its Subsidiaries.




          Total Commitment. The sum of the Commitments of the Lenders, as in effect from time
to time not to exceed the lesser of (a) the Borrowing Base or (b) $120,000,000.00, as such amount
may be increased pursuant to §2.2 herein.




          Total Debt. With respect to EPR and any of its Subsidiaries, all Indebtedness, plus
the face amount of any undrawn letters of credit, plus any Contingent Obligations.




          Total Real Estate Value. EBITDA of EPR and its Subsidiaries for the most recent
quarter, with pro forma adjustments for any assets acquired or sold during the relevant period,
multiplied by four (4) (which is the annualization factor), and then divided by the applicable
capitalization rate. Such capitalization rate shall be 9.00% for all Megaplex Movie Theatres and
other Entertainment-Related Retail Improvements (including, without limitation, EPR Senior Property
Loans secured by EPR Senior First Mortgages on Megaplex Movie Theatres or Entertainment-Related
Retail Improvements), and 10% for assets that are not Megaplex Movie Theatres or other
Entertainment-Related Retail Improvements.




          Total Secured Debt. At any time, for EPR and its Subsidiaries, determined on a
Consolidated basis, the sum of the following, but only if any Real Estate, or ownership interest of
the owner thereof, is subject to a mortgage, deed of trust, deed to secure debt or similar
instrument encumbering such Real Estate, or with respect to an owner of such Real Estate, a pledge
of any equity interests in such Person with respect thereto: (i) all Indebtedness plus any other
amounts that may constitute indebtedness for borrowed money; (ii) the deferred purchase price of
Real Estate (not including escrow deposits given in connection with any such purchase); (iii) all
Capitalized Leases in which a Borrower is the tenant; (iv) all obligations to reimburse any bank or
other Person in respect of amounts paid or to be paid under a letter of credit or similar
instrument; and (v) all Guarantees of Indebtedness incurred by Persons other than for Indebtedness
already accounted for in the foregoing clauses (i) — (iv) hereof, and other than the Borrower and
its Subsidiaries.




          Type. As to any portion of the Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.




          Underwriteable Cash Flow. (1) With respect to Borrowing Base Asset that is a Megaplex
Movie Theater (whether subject to a Lease or an EPR Senior First Mortgage), determined
individually, the lesser of (A) the Borrowing Base Asset NOI for the trailing 4 quarter period or
(B) the Exhibitor’s EBITDAR for such Borrowing Base Asset for the trailing 4
quarter period, divided by 1.25. If a given Megaplex Movie Theatre has not been in operation
for one year, part B will not apply; and (2) with respect to each Borrowing Base Asset that is not
a Megaplex Movie Theatre, the Borrowing Base Asset NOI for the most recently ended quarter and then
annualized.




20









 








          Unhedged Variable Rate Debt. Indebtedness that by its terms bears interest at a
variable, not fixed, rate for which a swap, cap or similar arrangement effectively limiting the
variability of such rate has not been entered into.




     §1.2 Rules of Interpretation.



          (a) A reference to any document or agreement shall include such document or agreement as
amended, modified or supplemented from time to time in accordance with its terms and the terms of
this Agreement.




          (b) The definitions of terms herein shall apply equally to the singular and the plural forms
of the terms defined.




          (c) A reference to any law includes any amendment or modification of such law.




          (d) A reference to any Person includes its permitted successors and permitted assigns.




          (e) Accounting terms not otherwise defined herein have the meanings assigned to them by GAAP
applied on a consistent basis by the accounting entity to which they refer.




          (f) The words “include”, “includes” and “including” are not limiting.




          (g) The words “approval” and “approved”, as the context requires, means an approval in writing
given to the party seeking approval after full and fair disclosure to the party giving approval of
all material facts necessary in order to determine whether approval should be granted.




          (h) All terms not specifically defined herein or by GAAP, which terms are defined in the
Uniform Commercial Code as in effect in the State of New York, have the meanings assigned to them
therein.




          (i) Reference to a particular “§”, refers to that section of this Agreement unless otherwise
indicated.




          (j) The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this
Agreement as a whole and not to any particular section or subdivision of this Agreement.




     §1.3 Accounting Terms and Determinations.



          (a) GAAP. Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if Borrower notifies Lender that Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if Lender notifies




21









 







Borrower that Lender
requests an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.




          (b) FFO. If Borrower notifies Lender that the definition of FFO has been amended by
the Board of Governors of the National Association of Real Estate Investment Trusts after the date
of this Agreement and that Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in FFO or in the application thereof on the
operation of such provision (or if Lender notifies Borrower that Lender requests an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in FFO or in the application thereof, then such provision shall be interpreted on
the basis of FFO as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended in accordance
herewith.




§2. THE TERM LOAN FACILITY.




     §2.1 The Loan.



          (a) Subject to the terms and conditions set forth in this Agreement, including without
limitation, §2.2 below, each of the Lenders severally agrees to lend to the Borrower, and the
Borrower may borrow (and repay but not re-borrow)the Loan Amount, which such amount shall be fully
advanced on the initial Drawdown Date in accordance with the terms of this Agreement, and used for
the purposes set forth in §2.9, herein. The Loan shall be made in accordance with each Lender’s
Commitment.




          (b) The Loan shall be evidenced by separate promissory notes of the Borrower in substantially
the form of Exhibit B hereto (collectively, the “Notes”), dated of even date with
this Agreement (except as otherwise provided in §18.3) and completed with appropriate insertions.
One Note shall be payable to the order of each Lender in the principal amount equal to such
Lender’s Commitment. The Borrower irrevocably authorizes Agent to make or cause to be made, at or
about the time of the initial Drawdown Date of the Loan or the time of receipt of any payment of
principal thereof, an appropriate notation on Agent’s Record reflecting the making of such Loan or
(as the case may be) the receipt of such payment. The outstanding amount of the Loan set forth on
Agent’s Record shall be prima facie evidence of the principal amount thereof owing and unpaid to
each Lender, but the failure to record, or any error in so recording, any such amount on Agent’s
Record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under any Note to make payments of principal of or
interest on any Note when due. By delivery of the Notes, there shall not be deemed to have
occurred, and there has not otherwise occurred, any payment, satisfaction or novation of the
indebtedness evidenced by the “Notes” as defined in this Agreement which indebtedness is instead
allocated among the Lenders as of the date hereof and evidenced by the Notes in accordance with
their respective Commitments.




22









 








     §2.2 The Increased Loan Amount.



     (a) Request for Increase. During the term of the Loan, the Borrower shall have the
option to increase the Loan Amount by a maximum aggregate amount of up to $50,000,000.00 (the
“Accordion Option”). Borrower may exercise said Accordion Option at any time by providing
notice to the Agent, provided however, (a) that at the time of the exercise of such option, there
is no Default or Event of Default which shall have occurred and be continuing; (b) in no event
shall the existence of this Accordion Option be deemed a commitment on the part of the Lenders
until such time as a Lender in writing increases its commitment pursuant to this §2.2, or a new
Lender issues a written commitment, and then in such event, such increase to the Loan Amount shall
only be to the extent of the increased commitment or new commitment amounts; (c) any such increase
shall be in a minimum amount of $10,000,000.00 with minimum increments of $5,000,000.00 above that
amount, and a maximum aggregate increase of $50,000,000.00; and (d) any such increase shall be
integrated into this Agreement and shall be subject to the same terms and conditions as this
Agreement.



     (b) Reallocation of Commitment Percentages. In the event the aggregate Commitments
(including due to new Commitments by additional Lenders) are increased in accordance with this
§2.2, then upon the Increase Effective Date (as defined in §2.2(d), below), the Lenders hereby
acknowledge and agree that each Lender’s Commitment Percentage shall be recalculated to reflect the
new Commitment Percentages with respect to the increased Loan Amount. (c) Additional
Lenders. To achieve the full amount of the Loan Amount increase, and subject to the approval
of the Agent (which approval shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees (as defined in §18.1 herein) to become Lenders pursuant to a joinder
agreement reasonably satisfactory to the Agent and its counsel.



     (d) Effective Date and Allocations. If the aggregate Commitments (including due to
new Commitments by additional Lenders) are increased in accordance with this §2.2, the Agent and
the Borrowers shall determine the effective date (the “Increase Effective Date”) and the
final allocation of such increase. The Agent shall promptly notify the Borrowers and the Lenders
(including any additional Lenders) of the final allocation of such increase and the Increase
Effective Date.



     (e) Conditions to Effectiveness of Increase. Any increase in the Loan Amount pursuant
to this §2.2 shall be subject to the following conditions:




     (i) The Borrowers shall have paid to (A) the Agent, such fees as shall be due to Agent
at such time under the Fee Letter (as defined in §4.2, herein), and (B) to each
Lender, such fees, if any, as shall have been agreed upon by the Borrower and the
Agent.




     (ii) As of the Increase Effective Date, no Default or Event of Default then exists and
is continuing or would result from such increase in the Loan Amount (including on a pro
forma basis relative to financial covenant compliance).



23









 







     (iii) The Borrowers shall have delivered to the Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender) (A) certifying and attaching
the resolutions adopted by the Borrowers approving or consenting to such increase, and (B)
certifying that, before and after giving effect to such increase, (1) the representations
and warranties of the Borrowers in this Agreement and in each other Loan Document are true
and correct on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case, to the
knowledge of the Borrowers, they are true and correct as of such earlier date, and except
to the extent of changes resulting from transactions contemplated and permitted by this
Agreement and changes occurring in the ordinary course of business (in each case to the
extent not constituting a Default or Event of Default), (2) no Default or Event of Default
exists and is continuing or would result from such increase in the Loan Amount (including
on a pro forma basis relative to financial covenant compliance), and (3) the incurrence of
Indebtedness in an aggregate principal amount equal to the full Loan Amount after giving
effect to all Commitment increases and new Commitments would not result in a breach of, or
a default under, any agreement to which any Borrower is a party.




     (iv) [Reserved].



     (v) The Borrowers will execute and deliver to each applicable Lender a new Note in the
appropriate stated amount, and will execute and deliver or otherwise provide to the Agent
and the Lenders such other documents and instruments consistent with the terms of this
Agreement, as the Agent or Lenders reasonably may require.



     (f) The provisions of this §2.2 shall not constitute a “commitment” to lend, and the
Commitments of the Lenders shall not be increased until satisfaction of the provisions of this §2.2
and actual increase of the Commitments as provided herein.


     §2.3 [Reserved]

     §2.4 [Reserved]

     §2.5 [Reserved].


     §2.6 Interest on Loans.



     (a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the date on which such Base Rate Loan is repaid or
converted to a LIBOR Rate Loan at the rate per annum equal to the sum of the Base Rate plus the
Applicable Base Rate Margin.



     (b) Each LIBOR Rate Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of each Interest Period with respect thereto at the rate per
annum equal to the sum of LIBOR determined for such Interest Period plus the Applicable LIBOR Rate
Margin.



24









 





     (c) The Borrower promises to pay interest on each Loan in arrears on each Interest Payment
Date with respect thereto.



     (d) Base Rate Loans and LIBOR Rate Loans may be converted to Loans of the other Type as
provided in §4.1.



     §2.7 [Reserved].



     §2.8 Funds for Loan.



     (a) Not later than 1:00 p.m. (Boston time) on the proposed initial Drawdown Date (or any
subsequent Drawdown Date in connection with an increase in the Loan Amount pursuant to §2.2) of the
Loan, each of the Lenders will make available to the Agent, at the Agent’s Head Office, in
immediately available funds, the amount of such Lender’s Commitment which may be disbursed pursuant
to §2.1. Upon receipt from each Lender of such amount, and upon receipt of the documents required
by §10 and the satisfaction of the other conditions set forth therein, to the extent applicable,
the Agent will make available to the Borrower the aggregate amount of such Loan made available to
the Agent by the Lenders by crediting such amount to the account of the Borrower maintained at the
Agent’s Head Office. The failure or refusal of any Lender to make available to the Agent at the
aforesaid time and place on the initial Drawdown Date the amount of its Commitment shall not
relieve any other Lender from its obligation hereunder to make available to the Agent the amount of
such other Lender’s Commitment, and to provide funds to replace those not advanced by the Lender so
failing or refusing. In the event of any such failure or refusal, the Lenders not so failing or
refusing shall be entitled to a priority position as against the Lender or Lenders so failing or
refusing to make available to the Borrower the amount of its or their Commitment as provided in
§12.5.



     (b) Unless the Agent shall have been notified by any Lender prior to the Drawdown Date that
such Lender will not make available to Agent such Lender’s Commitment, the Agent may in its
discretion assume that such Lender has made such Loan available to Agent in accordance with the
provisions of this Agreement and the Agent may, if it chooses, in reliance upon such assumption
make the Loan available to the Borrower, and such Lender shall be liable to the Agent for the
amount of such advance. If such Lender does not pay such corresponding amount upon the Agent’s
demand therefor, the Agent will promptly notify the Borrower, and the Borrower shall promptly pay
such corresponding amount to the Agent. The Agent shall also be entitled to recover from the
Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered
by the Agent at a per annum rate equal to (i) from the Borrower at the applicable rate for such
Loan or (ii) from a Lender at the Federal Funds Effective Rate. Notwithstanding anything to the
contrary contained herein, the Borrower may at any time prior to the Drawdown Date, provide a Full
Advance Notice to the Agent instructing Agent not to disburse the Loan proceeds, until such time as
Agent has received from each Lender, its proportionate share of the Loan.



     §2.9 Use of Proceeds. The Borrower will use the proceeds of the Loan to fund the
Borrowers’ general working capital requirements that include real estate acquisitions, financing,
development and debt repayment.



25









 





     §2.10 [Reserved]



     §2.11 Appointment of Borrower Agent. Borrower recognizes that it is advantageous and
convenient for them to, and as such, is hereby authorized to, appoint one or more officers of the
Borrowers from time to time to act as agent for the Borrower to effect borrowings and other
extensions of credit under this Agreement and to designate a Borrower to which proceeds of the
borrowings shall be distributed (individually and collectively, the “Borrower Agent”).




     (1) Upon appointment of a Borrower Agent, the Borrower shall provide Agent with
notice thereof, along with an incumbency certificate and any other required
corporate or company authority documents as may be requested by the Agent, including
resolutions, as appropriate, properly evidencing the authority of the Borrower
Agent. Upon delivery to Agent of all requested authority documents, each Borrower
shall be deemed to have irrevocably appointed such Borrower Agent as its agent to
effect borrowings, obtain other extensions of credit and to execute instruments and
documents and take other actions in the name, or on behalf of, but not as a lender
to, such Borrower, as provided or contemplated in this Agreement. Notwithstanding
any provision to the contrary elsewhere in this Agreement or such other Loan
Documents, the Borrower Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship with any
Borrower and no implied covenants, functions, responsibilities duties, obligations
or liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Borrower Agent. Furthermore, in performing his duties
under this appointment, the Borrower Agent shall be acting solely as a conduit for
money transfers between the Lenders and the Borrowers, and the Borrower Agent shall
not make, nor shall he be construed as making, any loans or advances of money under
this Agreement to any of the Borrowers.




     (2) Each Borrower further agrees and acknowledges that the Loan made by
the Lenders hereunder may be made directly to the Borrower designated by the
Borrower Agent, notwithstanding any notice or knowledge by the Lenders that said
Loan, or any portion thereof, is intended for the use of another Borrower, and
the Lenders shall have no responsibility with respect to whether or when the
designated Borrower distributes or delivers the proceeds of said Loan to any
other Borrower, and payment or delivery by the Agent of
the proceeds of the Loan to the designated Borrower shall be deemed to be a
payment or delivery to each Borrower. Without limiting the foregoing, each
Borrower acknowledges that it shall be directly indebted to the Lenders for the
Loan distributed to it by the Lenders, the Borrower Agent or any Borrower as if
the Loan had been made directly by the Lenders to such Borrower which received
such proceeds, in addition to which the other Borrower shall be jointly and
severally obligated to the Lenders in that amount.




     (3) The Agent shall have no responsibility to inquire as to the
distribution of the Loan made by the Agent through the Borrower Agent as
described herein.



26









 






     (4) The Borrower Agent and each Borrower agrees, jointly and severally, to
indemnify, defend, and to hold the Agent and the Lenders, and any of their
Affiliates or any designee harmless from and against any liability, claim, demand,
expense, or loss made against the Agent or any Lender, or any of their Affiliates
and/or its designees on account of, or arising out of, this Agreement and the
transactions contemplated hereby and any other action taken by the Agent, any Lender
or any of their Affiliates and/or designees hereunder or under any of the Loan
Documents or any other agreement with the Borrower Agent and/or the Borrowers and/or
any other Person.



§3. REPAYMENT OF THE LOAN.




     §3.1 Regularly Schedule Principal Payments and Stated Maturity.



          (a) In addition to interest payments as provided herein, the Borrower shall make regularly
scheduled payments of principal in an amount equal to One Percent (1%) per annum of the initial
Loan. Said payments shall be made quarterly in arrears on each of
January 1, April 1, July 1 and October 1, commencing with the first such payment due on
January 1, 2008,
and in the manner as set forth in the Notes. In the event the Loan Amount is increased pursuant
to §2.2 herein, the principal payment shall be recalculated as of the Increase Effective Date, at
One Percent (1%) per annum of the Loan Amount, as increased.




          (b) The Borrower promises to pay on the Maturity Date and there shall become absolutely due
and payable on the Maturity Date the entire amount of the Loan outstanding on such date, together
with any and all accrued and unpaid interest thereon.




     §3.2 Mandatory Prepayments.



          (a) If at any time the sum of the aggregate outstanding principal amount of the Loan exceeds
the Borrowing Base, then the Borrower shall immediately pay the amount of such excess to the Agent
for the respective accounts of the Lenders, as applicable, for application to the Loans as provided
in §3.4, together with any additional amounts payable pursuant to §4.8.




          (b) In the event that the Extension Option is exercised pursuant to §3.5, then during such
extension period, if any Borrowing Base Asset is released, Borrower shall immediately pay to the
Agent for the respective accounts of the Lenders, as applicable, an amount equal to the greater of
(i) one hundred-twenty percent (120%) of the Allocated Loan Amount, or (ii) ninety percent (90%) of
the net sales/refinance proceeds with respect to said Borrowing Base Asset.




     §3.3 Optional Prepayments. The Borrower shall have the right, at its election, to
prepay the outstanding amount of the Loan, as a whole or in part, at any time without penalty or
premium, except for the Prepayment Premium set forth in §3.7, below; and provided, that if
any prepayment of all or a portion of the outstanding amount of any LIBOR Rate Loans pursuant to
this §3.3 is made on a date that is not the last day of the Interest Period relating thereto, such
prepayment shall be accompanied by the payment of any amounts due pursuant to §4.8, and



27









 







provided further that no such partial prepayment may be made which reduces the
outstanding Loan Amount below Sixty-Five Million and 00/100 Dollars ($65,000,000) (unless the Loan
is being entirely cancelled or terminated pursuant to the terms of this Agreement). Additionally,
the Borrower shall give the Agent, no later than 10:00 a.m., Boston time, at least three (3) days
prior written notice of any prepayment pursuant to this §3.3, in each case specifying the proposed
date of prepayment of the applicable Loan and the principal amount to be prepaid.



     §3.4 Partial Prepayments. Each partial prepayment of the Loans under §3.3 shall be in
a minimum amount of $1,000,000.00 or an integral multiple of $100,000 in excess thereof, and shall
be accompanied by the payment of accrued interest on the principal prepaid to the date of payment.
Each partial payment under §3.2 and §3.3 shall be in the absence of instruction by the Borrower,
first applied to the principal of Loan, and within each category, first to the principal of Base
Rate Loans within such category and then to the principal of LIBOR Rate Loans within such category.



     §3.5 Extension Option. The Borrower shall have a one-time option to extend the term of
the Loan for a period of one year from the date of the initial Maturity Date (the “Extension
Option”) provided that: (i) the Borrower notifies the Agent in writing no less than sixty (60)
days, nor more than ninety (90) days, before the initial Maturity Date; (ii) the Borrower is in
full compliance with the terms of this Agreement; (iii) no Default, or Event of Default has
occurred and is continuing at the time of the notice and as of the commencement of the Extension
Option; and (iv) an extension fee in the amount of 20 bps multiplied by the Loan Amount is paid to
the Agent for the pro rata benefit of the Lenders.



     §3.6 Effect of Prepayments. Any amount of the Loan paid or prepaid hereunder,
including without limitation, those amounts paid pursuant to §3.1 or prepaid under §3.2 and §3.3
prior to the Maturity Date, may not be re-borrowed hereunder.



     §3.7 Other Prepayment Fees. The principal balance of the Loan Amount may be prepaid
as provided herein. Any amount of principal balance so prepaid hereunder whether by demand or
acceleration by the Agent as permitted pursuant to this Agreement, including prepayments as a
result of a sale, recapitalization or refinance of the Borrowers which such prepayment results in a
termination of the borrowing relationship with the Lender, then, at the time of such payment,
Borrowers shall also be subject to a prepayment premium (the “Prepayment Premium”), in
addition to any other payments due or penalties therefore, including without limitation, the
following amounts:



          (i) One percent (1.00%) of the amount of the Loan being repaid if paid on or prior to the date
that is twelve (12) months from the date of this Agreement; and ;




          (ii) Zero percent (0.00%) of the amount of the Loan being prepaid if paid after the date that
is twelve (12) months from the date of this Agreement.




          Such Prepayment Premium shall be paid to the Agent on behalf of the Lenders as liquidated
damages for the loss of the bargain by Lenders and not as a penalty. Borrowers agree that upon the
occurrence of any Event of Default and the acceleration of the payment of the





28











 




principal balance hereunder, said Prepayment Premium shall be applicable to any amount then
prepaid.




§4. CERTAIN GENERAL PROVISIONS.




     §4.1 Conversion Options.



          (a) The Borrower may elect from time to time to convert any portion (subject to the
limitations set forth in this §4.1)of the outstanding Loan to a Loan of another Type and such Loan
shall thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable;
provided that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least one (1) Business Day’s prior written notice of
such election, and such conversion shall only be made on the last day of the Interest Period with
respect to such LIBOR Rate Loan; (ii) with respect to any such conversion of a Base Rate Loan to a
LIBOR Rate Loan, the Borrower shall give the Agent at least three (3) LIBOR Business Days’ prior
written notice of such election and the Interest Period requested for such Loan, the principal
amount of the Loan so converted shall be in a minimum aggregate amount of $2,000,000 or an integral
multiple of $100,000 in excess thereof and, after giving effect to the conversion of such Loan,
there shall be no more than five (5) LIBOR Rate Loans outstanding at any one time; (iii) no Loan
may be converted into a LIBOR Rate Loan when any Event of Default has occurred and is continuing;
and (iv) no Loan may be converted into a LIBOR Rate Loan for an Interest Period of greater than one
month when any Default has occurred and is continuing. All or any part of the outstanding Loan of
any Type may be converted as provided herein, provided that no partial conversion shall
result in a Base Rate Loan in a principal amount of less than $1,000,000 or a LIBOR Rate Loan in a
principal amount of less than $2,000,000 and that the principal amount of each Loan shall be in an
integral multiple of $100,000. On the date on which such conversion is being made, each Lender
shall take such action as is necessary to transfer its Commitment Percentage of such Loans to its
Domestic Lending Office or its LIBOR Lending Office, as the case may be. Each
Conversion/Continuation Request relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan
shall be irrevocable by the Borrower.




          (b) Any LIBOR Rate Loan may be continued as such Type upon the expiration of an Interest
Period with respect thereto by compliance by the Borrower with the terms of this §4.1;
provided that Borrower shall give Agent at least three (3) LIBOR Business Days’ prior
written notice of such election and the Interest Period requested for such Loan, provided
further that no LIBOR Rate Loan may be continued as such for an Interest Period of greater than
one month when any Default has occurred and is continuing, and no LIBOR Rate Loan may be continued
as such for any period of time when any Event of Default has occurred and is continuing, but shall
be automatically converted to a Base Rate Loan on the last day of the Interest Period relating
thereto ending during the continuance of any Event of Default. After a Default or Event of Default
has been cured, Borrower may convert to or continue any LIBOR Rate Loan as otherwise provided
herein.




          (c) In the event that the Borrower does not notify the Agent of its election hereunder with
respect to any LIBOR Rate Loan, such Loan shall be automatically converted at the end of the
applicable Interest Period to a LIBOR Rate Loan with a one month Interest Period.




29









 








     §4.2 Closing Fee. The Borrower shall pay to KeyBank on the Closing Date such amount
as is set forth in a separate agreement regarding any such fees between Borrower and KeyBank
(“Fee Letter”).



     §4.3 Agent’s Fee. The Borrower shall pay to the Agent, for the Agent’s own account,
an annual Agent’s fee (the “Agent’s Fee”) as shall be provided in the Fee Letter. The
Agent’s Fee shall be payable quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter or portion thereof. The Agent’s Fee shall also be paid upon
the Maturity Date or earlier termination of the Commitments. The Agent’s Fee for any partial
quarter shall be prorated. The parties hereto hereby acknowledge and agree that no Agent’s Fee
shall be due at the initial closing of this Loan.



     §4.4 Funds for Payments.



          (a) All payments of principal, interest, facility fees, closing fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made to the Agent, for the respective
accounts of the Lenders and the Agent, as the case may be, at the Agent’s Head Office, not later
than 1:00 p.m. (Boston time) on the day when due, in each case in lawful money of the United States
in immediately available funds. The Agent is hereby authorized to charge the accounts of the
Borrower with KeyBank, on the dates when the amount thereof shall become due and payable, with the
amounts of the principal of and interest on the Loans and all fees, charges, expenses and other
amounts owing to the Agent and/or the Lenders under the Loan Documents.




          (b) All payments by the Borrower hereunder and under any of the other Loan Documents shall be
made without setoff or counterclaim and free and clear of and without deduction for any taxes
(other than income or franchise taxes imposed on any Lender), levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or
other authority therein unless the Borrower is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the
Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Lenders or the Agent to receive the same net amount
which the Lenders or the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent certificates or other
valid vouchers for all taxes or other charges required to be deducted from or paid with respect to
payments made by the Borrower hereunder or under any other Loan Document.




          (c) Each Lender organized under the laws of a jurisdiction outside the United States, if
requested in writing by the Borrower (but only so long as such Lender remains lawfully able to do
so), shall provide the Borrower with such duly executed form(s) or statement(s) which may, from
time to time, be prescribed by law and, which, pursuant to applicable provisions of (i) an income
tax treaty between the United States and the country of residence of such Lender, (ii) the Code, or (iii) any applicable rules or regulations in effect under (i) or (ii) above,
indicates



30









 






the withholding status of such Lender; provided that nothing herein (including without
limitation the failure or inability to provide such form or statement) shall relieve the Borrower
of its obligations under §4.4(b). In the event that the Borrower shall have delivered the
certificates or vouchers described above for any payments made by the Borrower and such Lender
receives a refund of any taxes paid by the Borrower pursuant to §4.4(b), such Lender will pay to
the Borrower the amount of such refund promptly upon receipt thereof; provided that if at
any time thereafter such Lender is required to return such refund, the Borrower shall promptly
repay to such Lender the amount of such refund.




          (d) The obligations of the Borrower to the Lenders under this Agreement shall be absolute,
unconditional and irrevocable, and shall be paid and performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including, without limitation, the
following circumstances: (i) any lack of validity or enforceability of this Agreement, any of the
other Loan Documents; (ii) the existence of any claim, set-off, defense or any right which the
Borrower or any of its Subsidiaries or Affiliates may have at any time against any of the Lenders
(other than the defense of payment to the Lenders in accordance with the terms of this Agreement),
whether in connection with this Agreement, any other Loan Document, or any unrelated transaction;
(iii) the surrender or impairment of any security for the performance or observance of any of the
terms of any of the Loan Documents; (iv) the occurrence of any Default or Event of Default; and (v)
any other circumstance or happening whatsoever, whether or not similar to any of the foregoing,
provided that such other circumstances or happenings shall not have been the result of negligence
or willful misconduct on the part of the Agent or a Lender.




     §4.5 Computations. All computations of interest on the Loans and of other fees to the
extent applicable shall be based on a 360-day year and paid for the actual number of days elapsed.
Except as otherwise provided in the definition of the term “Interest Period” with respect
to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be extended to the
next succeeding Business Day, and interest shall accrue during such extension. The Outstanding
Loans as reflected on the records of the Agent from time to time shall be considered prima
facie evidence of such amount.



     §4.6 Inability to Determine LIBOR. In the event that, prior to the commencement of
any Interest Period relating to any LIBOR Rate Loan, the Agent shall determine that adequate and
reasonable methods do not exist for ascertaining LIBOR for such Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and binding on the Borrower
and the Lenders absent manifest error) to the Borrower and the Lenders. In such event each LIBOR
Rate Loan will automatically, on the last day of the then current Interest Period applicable
thereto, become a Base Rate Loan, and the obligations of the Lenders to make LIBOR Rate Loans shall
be suspended until the Agent determines that the circumstances giving rise to such suspension no
longer exist, whereupon the Agent shall so notify the Borrower and the Lenders.



     §4.7 Illegality. Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or the interpretation or application thereof shall make
it unlawful, or any central bank or other governmental authority having jurisdiction over a Lender



31









 




or its LIBOR Lending Office shall assert that it is unlawful, for any Lender to make or maintain
LIBOR Rate Loans, such Lender shall forthwith give notice of such circumstances to the Agent and
the Borrower and thereupon the LIBOR Rate Loans then outstanding shall be converted automatically
to Base Rate Loans on the last day of each Interest Period applicable to such LIBOR Rate Loans or
within such earlier period as may be required by law. Notwithstanding the foregoing, before giving
such notice, the applicable Lender shall designate a different lending office if such designation
will void the need for giving such notice and will not, in the judgment of such Lender, be
otherwise materially disadvantageous to such Lender. In the event that the applicable Lender shall
be replaced pursuant to §4.15, then to the extent the terms of this §4.7 are not otherwise
applicable, Borrower again shall be permitted to request conversions to or continuations of LIBOR
Rate Loans.




     If at any time, it shall be unlawful or impossible for any Lender to make, maintain or fund
its LIBOR Rate Loans, the Borrowers shall have the right, upon five (5) Business Day’s notice to
the Agent, to either (x) cause a bank, reasonably acceptable to the Agent, to offer to purchase the
Commitments of such Lender for an amount equal to such Lender’s outstanding Loans, together with
all fees, accrued interest and other amounts payable to such Lender and to become a Lender
hereunder, which offer such Lender is hereby required to accept, or (y) to repay in full all Loans
then outstanding of such Lender, together with interest and all other amounts due thereon, upon
which event, such Lender’s Commitments shall be deemed to be cancelled, and the Loan Amount shall
be reduced by the dollar amount of any such reduction of the Commitments pursuant to this §4.7.



     §4.8 Additional Interest. If any LIBOR Rate Loan or any portion thereof is repaid or
is converted to a Base Rate Loan for any reason on a date which is prior to the last day of the
Interest Period applicable to such LIBOR Rate Loan, or if repayment of the Loans has been
accelerated as provided in §12.1, the Borrower will pay to the Agent upon demand for the account of
the applicable Lenders in accordance with their respective Commitment Percentages in addition to
any amounts of interest otherwise payable hereunder, any amounts required to compensate such
Lenders for any losses, costs or expenses which may reasonably be incurred as a result of such
payment or conversion, including, without limitation, an amount equal to daily interest for the
unexpired portion of such Interest Period on the LIBOR Rate Loan or portion thereof so repaid or
converted at a per annum rate equal to the excess, if any, of (a) the interest rate calculated on
the basis of LIBOR applicable to such LIBOR Rate Loan (including any spread over LIBOR) minus (b)
the yield obtainable by the Agent upon the purchase of debt securities customarily issued by the
Treasury of the United States of America which have a maturity date most closely approximating the
last day of such Interest Period (it being understood that the purchase of such securities shall
not be required in order for such amounts to be payable) and that a Lender shall not be obligated
or required to have actually obtained funds at LIBOR or to have actually reinvested such amounts as
described above. Such amount shall be reduced to present value by using the rate on the United
States Treasury Securities described in the foregoing sentence and the number of days remaining in the unexpired portion of the
Interest Period in question.



     §4.9 Additional Costs, Etc. Notwithstanding anything herein to the contrary, if any
present or future applicable law, which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent court or by any



32









 




governmental or other regulatory body or official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Lender or the Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:




          (a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s
Commitment or the Loans (other than taxes based upon or measured by the gross receipts, income or
profits of such Lender or the Agent or its franchise tax), or




          (b) materially change the basis of taxation (except for changes in taxes on gross receipts,
income or profits or its franchise tax) of payments to any Lender of the principal of or the
interest on any Loans or any other amounts payable to any Lender under this Agreement or the other
Loan Documents, or




          (c) impose or increase or render applicable any special deposit, reserve, assessment,
liquidity, capital adequacy or other similar requirements (whether or not having the force of law
and which are not already reflected in any amounts payable by Borrower hereunder) against assets
held by, or deposits in or for the account of, or loans by, or commitments of an office of any
Lender, or




          (d) impose on any Lender or the Agent any other conditions or requirements with respect to
this Agreement, the other Loan Documents, the Loans, such Lender’s Commitment or any class of loans
or commitments of which any of the Loans or such Lender’s Commitment forms a part;



and the result of any of the foregoing is:




               (i) to increase the cost to any Lender of, renewing, extending or maintaining any of the
Loans, or such Lender’s Commitment, or



               (ii) to reduce the amount of principal, interest or other amount payable to any Lender or the
Agent hereunder on account of such Lender’s Commitment or any of the Loans, or



               (iii) to require any Lender or the Agent to make any payment or to forego any interest or
other sum payable hereunder, the amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable or deemed received by such Lender
or the Agent from the Borrower hereunder,


then, and in each such case, the Borrower will, within fifteen (15) days of demand made by such
Lender or (as the case may be) the Agent at any time and from time to time and as often as the
occasion therefor may arise, pay to such Lender or the Agent such additional amounts as such Lender
or the Agent shall determine in good faith to be sufficient to compensate such Lender or the Agent
for such additional cost, reduction, payment or foregone interest or other sum. Each Lender and
the Agent in determining such amounts may use any reasonable averaging and attribution methods
generally applied by such Lender or the Agent.



33









 







     §4.10 Capital Adequacy. If after the date hereof any Lender determines that (a) the
adoption of or change in any law, rule, regulation or guideline regarding capital requirements for
banks or bank holding companies or any change in the interpretation or application thereof by any
governmental authority charged with the administration thereof, or (b) compliance by such Lender or
its parent bank holding company with any guideline, request or directive of any such entity
regarding capital adequacy (whether or not having the force of law), has the effect of reducing the
return on such Lender’s or such holding company’ s capital as a consequence of such Lender’s
commitment to make Loans hereunder to a level below that which such Lender or holding company could
have achieved but for such adoption, change or compliance (taking into consideration such Lender’s
or such holding company’ s then existing policies with respect to capital adequacy and assuming the
full utilization of such entity’ s capital) by any amount deemed by such Lender to be material,
then such Lender may notify the Borrower thereof. The Borrower agrees to pay to such Lender the
amount of such reduction in the return on capital as and when such reduction is determined, upon
presentation by such Lender of a statement of the amount setting forth the Lender’s calculation
thereof. In determining such amount, such Lender may use any reasonable averaging and attribution
methods generally applied by such Lender.



     §4.11 Indemnity of Borrower. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and against any loss, cost or expense that such Lender may sustain or
incur as a consequence of (a) default by the Borrower in payment of the principal amount of or any
interest on any LIBOR Rate Loans as and when due and payable, including any such loss or expense
arising from interest or fees payable by such Lender to lenders of funds obtained by it in order to
maintain its LIBOR Rate Loans, or (b) default by the Borrower in making a conversion after the
Borrower has given (or is deemed to have given) a Conversion/Continuation Request.



     §4.12 Default Interest; Late Charge. Following the occurrence and during the
continuance of any Event of Default, and regardless of whether or not the Agent or the Lenders
shall have accelerated the maturity of the Loans, all Loans shall bear interest payable on demand
at a rate per annum equal to four percent (4%) above the rate that would otherwise be applicable at
such time (the “Default Rate”), until such amount shall be paid in full (after as well as
before judgment). In addition, the Borrower shall pay a late charge equal to five percent (5.0%)
of any amount of interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid by the Borrower within ten (10) days of
the date when due.



     §4.13 Certificate. A certificate setting forth any amounts payable pursuant to §4.8,
§4.9, §4.10, §4.11 or §4.12 and a reasonably detailed explanation of such amounts which are due,
submitted by any Lender or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.



     §4.14 Limitation on Interest. Notwithstanding anything in this Agreement or the other
Loan Documents to the contrary, all agreements between or among the Borrower, the Lenders and the
Agent, whether now existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any of the Obligations
or otherwise, shall the interest contracted for, charged or received by the Lenders exceed the
maximum amount permissible under applicable law. If, from any circumstance



34









 




whatsoever, interest would otherwise be payable to the Lenders in excess of the maximum lawful amount, the interest
payable to the Lenders shall be reduced to the maximum amount permitted under applicable law; and
if from any circumstance the Lenders shall ever receive anything of value deemed interest by
applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest
shall be applied to the reduction of the principal balance of the Obligations and to the payment of
interest or, if such excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. All interest paid or agreed to be paid to the
Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the Obligations
(including the period of any renewal or extension thereof) so that the interest thereon for such
full period shall not exceed the maximum amount permitted by applicable law. This Section shall
control all agreements between or among the Borrower, the Lenders and the Agent.




     §4.15 Certain Provisions Relating to Increased Costs. If a Lender gives notice of the
existence of the circumstances set forth in §4.7 or any Lender requests compensation for any losses
or costs to be reimbursed pursuant to any one or more of the provisions of §4.4, §4.9 or §4.10,
then, upon request of Borrower, such Lender, as applicable, shall use reasonable efforts in a
manner consistent with such institution’s practice in connection with loans like the Loan of such
Lender to eliminate, mitigate or reduce amounts that would otherwise be payable by Borrower under
the foregoing provisions, provided that such action would not be otherwise prejudicial to such
Lender, including, without limitation, by designating another of such Lender’s offices, branches or
affiliates; the Borrower agreeing to pay all reasonably incurred costs and expenses incurred by
such Lender in connection with any such action. Notwithstanding anything to the contrary contained
herein, if no Default or Event of Default shall have occurred and be continuing, and if any Lender
has given notice of the existence of the circumstances set forth in §4.7 or has requested payment
or compensation for any losses or costs to be reimbursed pursuant to any one or more of the
provisions of §4.4, §4.9 or §4.10 (each, an “Affected Lender”), then, within forty-five
(45) days after such notice or request for payment or compensation, Borrower shall have the
one-time right as to such Affected Lender, to be exercised by delivery of written notice delivered
to the Agent and the Affected Lender within forty-five (45) days of receipt of such notice, to
elect to cause the Affected Lender to transfer its Commitment. The Agent shall promptly notify the
remaining Lenders that each of such Lenders shall have the right, but not the obligation, to
acquire a portion of the Commitment, pro rata based upon their relevant Commitment Percentages, of
the Affected Lender (or if any of such Lenders does not elect to purchase its pro rata share, then
to such remaining Lenders in such proportion as approved by the Agent). In the event that the Lenders do not elect to acquire
all of the Affected Lender’s Commitment, then the Agent shall endeavor to obtain a new lender to
acquire such remaining Commitment. Upon any such purchase of the Commitment of the Affected
Lender, the Affected Lender’s interest in the Obligations and its rights hereunder and under the
Loan Documents shall terminate at the date of purchase, and the Affected Lender shall promptly
execute all documents reasonably requested to surrender and transfer such interest. The purchase
price for the Affected Lender’s Commitment shall equal any and all amounts outstanding and owed by
Borrower to the Affected Lender, including principal and all accrued and unpaid interest or fees
including any accrued, unbilled LIBOR breakage fees. In the event that no new Lender is located to
purchase the Affected Lender’s Commitment, then Borrower shall have the option after receipt of
written notice from Agent to Borrower that no new Lender has been obtained, to terminate the



35









 




Commitment of the Affected Lender and prepay in full all amounts outstanding and owed by Borrower
to the Affected Lender, including principal and all accrued and unpaid interest or fees including
any accrued, unbilled LIBOR breakage fees.




§5. BORROWING BASE ASSET AND BORROWING BASE ASSET REPLACEMENT.




     §5.1 [Reserved].



     §5.2 [Reserved].



     §5.3 Replacement or Addition of Borrowing Base Assets.



          (a) After the Closing Date, the Borrower shall have the right, subject to the consent of the
Required Lenders and the satisfaction by the Borrower of the conditions set forth in this §5.3, to
add Potential Borrowing Base Asset to the Borrowing Base Asset or to replace any Borrowing Base
Asset with Potential Borrowing Base Asset. The addition or replacement of Potential Borrowing Base
Asset to or for the then existing Borrowing Base Asset shall be referred to as “Borrowing Base
Asset Replacement”. In the event the Borrower desires to effect a Borrowing Base Asset
Replacement as aforesaid, the Borrower shall provide written notice to the Agent of such request
(which the Agent shall promptly furnish to the Lenders), together with all other Eligible Real
Estate Qualification Documents. Within ten (10) Business Days from the date of the receipt of the
Eligible Real Estate Qualification Documents, each Lender shall advise the Agent as to whether such
Lender approves the Potential Borrowing Base Asset. If a Lender fails to respond to the Agent
within such ten (10) Business Day period, such Lender shall be deemed to have approved such
Potential Borrowing Base Asset. Notwithstanding the foregoing, no Potential Borrowing Base Asset
shall be included as Borrowing Base Asset unless and until the following conditions precedent shall
have been satisfied:




               (i) such Potential Borrowing Base Asset shall be Eligible Real Estate;



               (ii) the Borrower shall have executed and/or delivered to the Agent all Eligible Real Estate
Qualification Documents, all of which instruments, documents or agreements shall be in form and
substance reasonably satisfactory to the Agent in its reasonable discretion; and



               (iii) after giving effect to the inclusion of such Potential Borrowing Base Asset, each of the
representations and warranties made by or on behalf of the Borrower contained in this Agreement,
the other Loan Documents or in any document or instrument delivered pursuant to or in connection
with this Agreement shall be true in all material respects both as of the date as of which it was
made and shall also be true as of the time of the replacement or addition of Borrowing Base Assets,
with the same effect as if made at and as of that time (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date shall be required to
be true and correct only as of such specified date), and no Default or Event of Default shall have
occurred and be continuing, and the Agent shall have received a certificate of the Borrower to such
effect.



36









 





               (iv) without limiting any of the foregoing, upon the occurrence of a Borrowing Base Asset
Replacement, Borrower must provide to Agent a Borrowing Base Certificate reflective of the
contemplated transaction evidencing that the sum of the amount Outstanding under the Loans does not
exceed the Borrowing Base.



               (v) Borrower shall pay any and all reasonable out-of-pocket expenses and costs, including
attorneys fees, incurred by Agent in connection with review and/or closing of the Potential
Borrowing Base Asset.



     The decision of the Required Lenders to grant or withhold their consent to the acceptance of
Potential Borrowing Base Asset under this §5.3 shall be based on the factors set forth in this §5.3
and the other provisions of this Agreement relating to Eligible Real Estate and Borrowing Base
Assets, provided however, that any such decision hereunder shall be in the sole discretion of the
Required Lenders.



     §5.4 Removal of Borrowing Base Assets. Provided no Default or Event of Default shall
have occurred hereunder and be continuing (or would exist immediately after giving effect to the
transactions contemplated by this §5.4), subject to the consent of the Agent and the Required
Lenders in their reasonable discretion, Borrower shall be permitted to remove a Borrowing Base
Asset from the Borrowing Base upon the request of the Borrower and subject to and upon the
following terms and conditions:



          (a) the Borrower shall deliver to the Agent written notice of its desire to remove such
property not later than ten (10) days prior to the date on which such removal is to be effected;




          (b) the Borrower shall submit to the Agent with such request, a Borrowing Base Certificate
reflective of the contemplated transaction evidencing that the sum of the amount Outstanding under
the Loans does not exceed the Borrowing Base;




          (c) the Borrower shall pay all reasonable costs and expense of the Agent in connection with
such removal, including without limitation, reasonable attorney’s fees;




          (d) the Borrower shall pay to the Agent for the account of the Lenders, such amount as is
necessary to provide that the amount Outstanding under the Loan does not exceed the Borrowing Base after giving effect to such removal; said removal price shall be applied
to reduce the outstanding principal balance of the Loans as provided in §3.4.



37









 







§6. REPRESENTATIONS AND WARRANTIES.




     The Borrower represents, warrants and covenants to the Agent and the Lenders as follows:



     §6.1 Corporate, Limited Liability Company Authority, Etc.



          (a) Borrower-SPE as a Special Purpose Entity. Until the Loan and all other
obligations of Borrower to Lender under the Loan Documents have been paid in full, each Borrower
hereby represents, warrants and covenants that the Borrower-SPE is and shall continue to be, a
Special Purpose Entity. As used herein “Special Purpose Entity” and/or “SPE” means
a corporation or limited liability company which:





     (i) is organized solely for the purpose of acquiring, financing, owning,
holding, developing, selling, leasing, transferring, exchanging, managing and
operating the Borrowing Base Assets owned by it (including, without limitation, EPR
Senior Property Loans and property encumbered by EPR Senior First Mortgages),
entering into this Agreement and the other Loan Documents with the Agent and the
Lenders, refinancing the Borrowing Base Assets owned by it in connection with a
permitted repayment of the Loan, and transacting lawful business that is incident,
necessary and appropriate to accomplish the foregoing;




     (ii) is not engaged and will not engage in any business unrelated to the
acquisition, financing, ownership, development, management or operation of the
Borrowing Base Assets (including, without limitation, EPR Senior Property Loans and
property encumbered by EPR Senior First Mortgages) or other activities described in
subpart (i) immediately above;




     (iii) does not have and will not have any assets other than those related to
the Borrowing Base Assets;




     (iv) has not engaged, sought or consented to and will not engage in, seek or
consent to any dissolution, winding up, liquidation, consolidation, merger, sale of
all or substantially all of its assets or amend its articles of incorporation,
certificate of formation with respect to the matters set forth in this definition;




     (v) has a certificate of incorporation or articles that provide that such
entity will not: (1) dissolve, merge, liquidate, consolidate; (2) sell all or
substantially all of its assets; (3) engage in any other business activity, or amend
its organizational documents with respect to the matters set forth in this
definition without the consent of Lender; or (4) without the affirmative vote of one
Independent Director and all other directors of the corporation file a bankruptcy or
insolvency petition or otherwise institute insolvency proceedings with respect
to itself or to any other entity in which it has a direct or indirect legal or
beneficial ownership interest;




     (vi) is and will remain solvent and pay its debts and liabilities (including,
as applicable, shared personnel and overhead expenses) from its assets



38









 







as the same shall become due, and is maintaining and will maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size and character
and in light of its contemplated business operations;




     (vii) has not failed and will not fail to correct any known misunderstanding
regarding the separate identity of such entity;




     (viii) has maintained and will maintain its accounts, books and records
separate from any other Person and will file its own tax returns, except to the
extent that it is required to file consolidated tax returns by law.




     (ix) has maintained and will maintain its own records, books, resolutions and
agreements;




     (x) has not commingled and will not commingle its funds or assets with those of
any other Person and has not participated and will not participate in any cash
management system with any other Person;




     (xi) has held and will hold its assets in its own name;




     (xii) has conducted and will conduct its business in its own name;




     (xiii) has maintained and will maintain its financial statements, accounting
records and other entity documents separate from any other Person and has not
permitted and will not permit its assets to be listed as assets on the financial
statement of any other entity except as required by GAAP; provided, however, that
any such consolidated financial statement shall contain a note indicating that its
separate assets and liabilities are neither available to pay the debts of the
consolidated entity nor constitute obligations of the consolidated entity;




     (xiv) has paid and will pay its own liabilities and expenses, including the
salaries of its own employees, out of its own funds and assets, and has maintained
and will maintain a sufficient number of employees in light of its contemplated
business operations;




     (xv) has observed and will observe all corporate formalities;




     (xvi) has and will have no Indebtedness other than (i) related to the Loan,
(ii) liabilities incurred in the ordinary course of business relating to the
ownership and operation of the Borrowing Base Assets and the routine administration
of such corporation, in amounts not to exceed $100,000 which liabilities are not more than sixty (60) days past the date incurred, are not
evidenced by a note and are paid when due, and which amounts are normal and
reasonable under the circumstances, and (iii) such other liabilities that are
permitted pursuant to this Agreement;



39









 






     (xvii) has not and will not assume or guarantee or become obligated for the
debts of any other Person or hold out its credit as being available to satisfy the
obligations of any other Person except as existing or permitted pursuant to this
Agreement;




     (xviii) has not and will not acquire obligations or securities of its
shareholders or any other Affiliate;




     (xix) has allocated and will allocate fairly and reasonably any overhead
expenses that are shared with any Affiliate, including paying for shared office
space and services performed by any employee of an Affiliate;




     (xx) maintains and uses and will maintain and use separate stationery, invoices
and checks bearing its name. The stationery, invoices, and checks utilized by the
Special Purpose Entity or utilized to collect its funds or pay its expenses shall
bear its own name and shall not bear the name of any other entity unless such entity
is clearly designated as being the Special Purpose Entity’s agent;




     (xxi) has not pledged and will not pledge its assets for the benefit of any
other Person except in favor of Lender under the Loan Documents and as may otherwise
be permitted under this Agreement;




     (xxii) has held itself out and identified itself and will hold itself out and
identify itself as a separate and distinct entity under its own name;




     (xxiii) has maintained and will maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify its individual
assets from those of any other Person;




     (xxiv) has not made and will not make loans to any Person or hold evidence of
indebtedness issued by any other Person or entity (other than EPR Senior Property
Loans and cash and investment-grade securities issued by an entity that is not an
Affiliate of or subject to common ownership with such entity);




     (xxv) has not identified and will not identify its partners, members or
shareholders, or any Affiliate of any of them, as a division or part of it, and has
not identified itself and shall not identify itself as a division of any other
Person;




     (xxvi) has not entered into or been a party to, and will not enter into or be a
party to, any transaction with its shareholders or Affiliates except (A) in the
ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained
in a comparable arm’s-length transaction with an unrelated third party, and (B) in
connection with this Agreement; provided, however, that, if no Default or Event of
Default then exists or would result therefrom, nothing in this Agreement shall
prohibit Borrower-SPE from transferring to any of its Affiliates Borrower-SPE’s



40









 







ownership interest in any of its Subsidiaries, if any, which, at the time of such
transfer, no longer own any Borrowing Base Assets;




     (xxvii) has not and will not have any obligation to, and will not, indemnify
its officers, directors or shareholders, as the case may be, unless such an
obligation is fully subordinated to the Loan and will not constitute a claim against
it in the event that cash flow in excess of the amount required to pay the Loan is
insufficient to pay such obligation;




     (xxviii) shall consider the interests of its creditors in connection with all
corporate actions;




     (xxix) has complied and will comply with all of the terms and provisions
contained in its organizational documents. The statement of facts contained in its
organizational documents are true and correct and will remain true and correct;




     (xxx) has and shall maintain at least one (1) Independent Director and caused
the articles of incorporation for such Person to require at least one (1)
Independent Director;




     (xxxi) shall not pledge its assets for the benefit of any other Person, other
than with respect to this Agreement and the Loan Documents and as otherwise
permitted under this Agreement, nor shall it agree with any other party that it
shall not pledge its assets for the benefit of any other Person; and




     (xxxii) shall not voluntarily file or consent to the filing of a petition for
bankruptcy, insolvency, reorganization, assignment for the benefit of creditors or
similar proceeding under any federal or state bankruptcy, insolvency, reorganization
or other similar law or otherwise seek any relief under any laws relating to the
relief of debts or the protection of debtors generally, or admit in writing its
inability to pay its debts generally as they become due, or take action in
furtherance of any such action, without the consent of each holder of any interest
in such entity, and without the unanimous written consent of each applicable
Independent Director.



          (b) EPR as a REIT. EPR is a Maryland real estate investment trust duly organized
pursuant to an Amended and Restated Declaration of Trust filed with the Maryland Department of
Assessments and Taxation, and is in good standing under the laws of Maryland. EPR conducts its
business in a manner which enables it to qualify as a real estate investment trust under, and to be
entitled to the benefits of, §856 of the Code, and has elected to be treated as and is entitled to
the benefits of a real estate investment trust thereunder. EPR (i) has all requisite power to own its property and conduct its business as now conducted and as presently
contemplated, and (ii) is in good standing and duly authorized to do business in the jurisdictions
where the Borrowing Base Assets directly owned or leased by it are located and in each other
jurisdiction where a failure to be so qualified in such other jurisdiction could have a materially
adverse effect on the business, assets or financial condition of EPR. EPR has not taken any action
that would prevent it from maintaining its qualification as a REIT for its tax year ending



41









 






December 31, 2005, or as of the date of this Agreement, from maintaining such qualification at all times
during the term of the Loan.




          (c) [Reserved].




          (d) [Reserved].




          (e) Borrower-SPE. Borrower-SPE is a Missouri limited liability company duly organized
pursuant to articles of organization filed with the Missouri Secretary of State, and is in good
standing under the laws of Missouri, subject to deletion or addition of a state or states as a
result of any change in Borrowing Base Assets, the ownership of which requires or required
Borrower-SPE to be in good standing under the laws of such state or states. The Borrower-SPE shall
also be in good standing and duly authorized to do business under the laws of such other states as
required for the conduct of its business, except where the failure to so qualify could not
reasonably be expected to have a material adverse effect on the business, assets or financial
condition of the Borrower. The Borrower-SPE conducts its business in a manner which enables it to
qualify as an SPE. The Borrower-SPE has all requisite power to own its property and conduct its
business as now conducted and as presently contemplated. The Borrower-SPE has not taken any action
that would prevent it from maintaining its qualification as an SPE as of the date of this
Agreement, or from maintaining such qualification at all times during the term of the Loan.




          (f) Subsidiaries. Each of the Subsidiaries of EPR (i) is a corporation, limited
partnership, general partnership, limited liability company or trust duly organized under the laws
of its state or jurisdiction of organization (including under Canadian law, as applicable), and is
validly existing and in good standing under the laws thereof, (ii) has all requisite power to own
its property and conduct its business as now conducted and as presently contemplated and (iii) is
in good standing and is duly authorized to do business in each jurisdiction where a failure to be
so qualified could have a materially adverse effect on the business, assets or financial condition
of the Borrower or any Subsidiary of EPR.




          (g) Authorization. The execution, delivery and performance of this Agreement and the
other Loan Documents to which each Borrower is a party and the transactions contemplated hereby and
thereby (i) are within the authority of such Person, (ii) have been duly authorized by all
necessary proceedings on the part of such Person, (iii) do not and will not conflict with or result
in any breach or contravention of any provision of law, statute, rule or regulation to which such
Person is subject or any judgment, order, writ, injunction, license or permit applicable to such
Person, (iv) do not and will not conflict with or constitute a default (whether with the passage of
time or the giving of notice, or both) under any provision of the partnership agreement, articles
of incorporation or other charter documents or bylaws of, or any agreement or other instrument binding upon, such Person or any of its
properties, (v) do not and will not result in or require the imposition of any lien or other
encumbrance on any of the properties, assets or rights of such Person, and (vi) do not require the
approval or consent of any Person other than those already obtained and delivered to Agent.




          (h) Enforceability. The execution and delivery of this Agreement and the other Loan
Documents to which each Borrower is a party are valid and legally binding



42









 






obligations of such
Person enforceable in accordance with the respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors’ rights and general
principles of equity.




          (i) SEC Filings. EPR has made all filings with and obtained all consents of the
Securities and Exchange Commission as required, if any, under the Securities Act and the Securities
Exchange Act in connection with the execution, delivery and performance by EPR of each of the
Obligations incurred in connection with the Loan Documents.




     §6.2 Governmental Approvals. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower is a party and the transactions
contemplated hereby and thereby do not require the approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.



     §6.3 Title to Properties. Except as indicated on Schedule 6.3 hereto, EPR’s
June 30, 2007 Form 10-Q (“10-Q”), as filed with the SEC under the Exchange Act and as
delivered to Agent herewith, the Borrower-SPE, or EPR or its Subsidiaries own or lease all of the
assets reflected in the Consolidated balance sheet of Borrower-SPE, EPR and its Subsidiaries as at
the Balance Sheet Date or acquired or leased since that date (except property and assets sold or
otherwise disposed of in the ordinary course of business since that date) or other adjustments that
are not material in amount, subject to no rights of others, including any mortgages, leases
pursuant to which Borrower-SPE, EPR or any of such Subsidiaries is the lessee, other than Qualified
Ground Leases, conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens. Provided, however, that in no event shall any reference to any
prior 10-Qs which may be incorporated by reference within the 10-Q delivered herewith be deemed
delivered to Lender nor shall any such information contained in any such prior filings be deemed
delivered to Lender.



     §6.4 Financial Statements. The Borrower has furnished to Agent and the Lenders: (a)
the Consolidated balance sheet of EPR and its Subsidiaries as of the Balance Sheet Date and the
related Consolidated statement of income and cash flow for the period then ended, (b) to the extent
available to Borrower, an unaudited statement of Borrowing Base Asset Net Operating Income for each
of the Borrowing Base Assets as of the Closing Date for the fiscal quarter ended June 30, 2007
reasonably satisfactory in form to the Agent and certified by the chief financial or accounting
officer of Borrower as fairly presenting the Borrowing Base Asset Net Operating Income for such
assets for such periods, and (c) certain other financial information relating to the Borrower and
the Real Estate, such as revenue information with respect to Exhibitor EBITDAR. Such balance sheet
and statements have been prepared in accordance with GAAP and fairly present the Consolidated financial condition of EPR and its Subsidiaries as of such dates and
the Consolidated results of the operations of EPR and its Subsidiaries for such periods. There are
no liabilities, contingent or otherwise, of EPR or any of its Subsidiaries involving material
amounts required to be disclosed and not disclosed in said financial statements and the related
notes thereto.



     §6.5 No Material Changes. Since the Balance Sheet Date, there has occurred no
materially adverse change in the condition (financial or otherwise) of the business, assets,



43









 




operations, or prospects of the Borrower and its Subsidiaries taken as a whole as shown on or
reflected in the consolidated balance sheet of the Borrower and its Subsidiaries as of the Balance
Sheet Date, or its Consolidated statement of income or cash flows for the period then ended, other
than changes in the ordinary course of business that could not reasonably be expected to have a
Material Adverse Effect. As of the date hereof, except as set forth on Schedule 6.5
hereto, based on information provided to Borrower from any applicable tenant, there has occurred no
materially adverse change in the financial condition or business of any of the Borrowing Base
Assets from the condition shown on the statements of income delivered to the Agent pursuant to §6.4
other than changes in the ordinary course of business that have not had any Materially Adverse
Effect either individually or in the aggregate on the business or financial condition of such
Borrowing Base Asset.




     §6.6 Franchises, Patents, Copyrights, Etc. The Borrower possesses all franchises,
patents, copyrights, trademarks, trade names, service marks, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of their business substantially as now conducted
without known conflict with any rights of others. None of the Borrowing Base Assets is owned or
operated under or by reference to any registered or protected trademark, trade name, service mark
of Borrower.



     §6.7 Litigation. Except as stated on Schedule 6.7, there are no actions,
suits, proceedings or investigations of any kind pending or to the knowledge of the Borrower
threatened against the Borrower or any of its Subsidiaries before any court, tribunal, arbitrator,
mediator or administrative agency or board which question the validity of this Agreement or any of
the other Loan Documents, any action taken or to be taken pursuant hereto or thereto or any lien,
security title or security interest created or intended to be created pursuant hereto or thereto,
or which if adversely determined could reasonably be expected to have a Material Adverse Effect.
Except as set forth on Schedule 6.7, there are no judgments, final orders or awards
outstanding against or affecting the Borrower, any of its Subsidiaries or any Borrowing Base
Asset.



     §6.8 No Materially Adverse Contracts, Etc. None of the Borrower or any of its
Subsidiaries is subject to any judgment, decree or order that has or is reasonably expected in the
future to have a materially adverse effect on the business, assets or financial condition of such
Person.



     §6.9 Compliance with Other Instruments, Laws, Etc. None of the Borrower-SPE, EPR or
any of its Subsidiaries is in violation of any provision of its charter or other organizational
documents, bylaws, or any agreement or instrument to which it is subject or by which it or any of its properties is bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that could reasonably be expected to
materially and adversely affect the financial condition, properties or business of such Person.



     §6.10 Tax Status. The Borrower-SPE, EPR and its Subsidiaries (a) has made or filed
all federal and state income and all other material tax returns, reports and declarations required
by any jurisdiction to which it is subject or has obtained an extension for filing, (b) has paid
prior to delinquency all taxes and other governmental assessments and charges shown or determined
to be due on such returns, reports and declarations, except those being contested in good faith and



44









 




by appropriate proceedings and (c) has set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction.




     §6.11 No Event of Default. No Default or Event of Default has occurred and is
continuing.



     §6.12 Holding Company and Investment Company Acts. None of the Borrower-SPE, EPR or
any of its Subsidiaries is a “holding company”, or a “subsidiary company” of a “holding company”,
or an “affiliate” of a “holding company”, as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is any of them an “investment company”, or an “affiliated company” or a
“principal underwriter” of an “investment company”, as such terms are defined in the Investment
Company Act of 1940.



     §6.13 Absence of UCC Financing Statements, Etc. Except with respect to Permitted
Liens or as disclosed on the lien search reports delivered to and approved by the Agent, there is
no financing statement (but excluding any financing statements that may be filed against
Borrower-SPE, EPR or its Subsidiaries without the consent or agreement of such Persons), security
agreement, chattel mortgage, real estate mortgage, deed of trust or other document filed or
recorded with any applicable filing records, registry, or other public office, that purports to
cover, affect or give notice of any present or possible future lien on, or security interest or
security title in, any property of the Borrower-SPE.



     §6.14 Setoff, Etc. The Borrowing Base Assets and the rights of the Agent and the
Lenders with respect to the Borrowing Base Assets are not subject to any setoff, claims,
withholdings or other defenses (provided that the foregoing representation shall not be deemed a
representation as to any potential claims of tenants under Leases, which are covered by §6.22).



     §6.15 Certain Transactions. Except as disclosed on Schedule 6.15 hereto, or
in EPR’s reports under the Exchange Act, delivered to the Lenders from the Borrower none of the
partners, officers, trustees, managers, members, directors, or employees of the Borrower, or any of
its Subsidiaries is a party to any material agreement with the Borrower, or any of its Subsidiaries
(other than for services as partners, managers, members, employees, officers and directors),
including any such agreement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments to or from any
partner, officer, trustee, director or such employee or, to the knowledge of the Borrower, any corporation, partnership, trust or other entity in which any partner, officer,
trustee, director, or any such employee has a substantial interest or is an officer, director,
trustee or partner, which are on terms materially less favorable to the Borrower or any of its
Subsidiaries than those that would be obtained in a comparable arms-length transaction.



     §6.16 Employee Benefit Plans. The Borrower and each ERISA Affiliate has fulfilled its
obligation, if any, under the minimum funding standards of ERISA and the Code with respect to each
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension



45









 




Plan. Neither the Borrower nor any ERISA Affiliate has (a) sought a waiver of the minimum funding standard under §412 of the
Code in respect of any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, (b)
failed to make any contribution or payment to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, or made any amendment to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, which has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code, or (c) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under §4007 of ERISA. None of
the Borrowing Base Assets constitutes a “plan asset” of any Employee Plan, Multiemployer Plan or
Guaranteed Pension Plan.




     §6.17 Disclosure. All of the representations and warranties made by or on behalf of
the Borrower and its Subsidiaries in this Agreement and the other Loan Documents or any document or
instrument delivered to the Agent or the Lenders pursuant to or in connection with any of such Loan
Documents are true and correct in all material respects, and the Borrower has not failed to
disclose such information as is necessary to make such representations and warranties not
misleading. There is no material fact or circumstance that has not been disclosed to the Agent and
the Lenders or in EPR’s Exchange Act reports delivered by the Borrower to Lender herewith, and the
written information, reports and other papers and data with respect to the Borrower, any Subsidiary
or the Borrowing Base Assets(other than projections and estimates) furnished to the Agent or the
Lenders in connection with this Agreement or the obtaining of the Commitments of the Lenders
hereunder was, at the time so furnished, complete and correct in all material respects, or has been
subsequently supplemented by other written information, reports or other papers or data, to the
extent necessary to give in all material respects a true and accurate knowledge of the subject
matter in all material respects; provided that such representation shall not apply to (a) the
accuracy of any engineering and environmental reports prepared by third parties or legal
conclusions or analysis provided by the Borrower’s counsel (although the Borrower has no reason to
believe that the Agent and the Lenders may not rely on the accuracy thereof) (b) budgets,
projections and other forward-looking or speculative information prepared in good faith by the
Borrower (except to the extent the related assumptions were when made manifestly unreasonable), or
(c) any Third Party Information.



     §6.18 Trade Name; Place of Business. The Borrower does not use any trade name and
conducts business under any name other than its actual name set forth in the Loan Documents. The
principal place of business of each Borrower is as set forth in §19 herein, and Borrower will not
change its principal place of business without first notifying Agent.



     §6.19 Regulations T, U and X. No portion of any Loan is to be used for the purpose of
purchasing or carrying any “margin security” or “margin stock” as such terms are used in
Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
220, 221 and 224. Borrower is not engaged, nor will it engage, principally or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
any “margin security” or “margin stock” as such terms are used in Regulations T, U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.



     §6.20 Environmental Compliance. The Borrower has taken all commercially reasonable
steps to investigate the past and present conditions and usage of the Borrowing Base Assets and



46









 




the operations conducted thereon and, except as specifically set forth on Schedule 6.20,
attached hereto, or in the case of Real Estate acquired after the date hereof by Borrower, in
express written notice with respect thereto provided to the Agent, makes the following
representations and warranties:




          (a) None of the Borrower or any of its Subsidiaries, nor to the best knowledge and belief of
Borrower and any of its Subsidiaries, any operator of the Real Estate, nor any operations thereon,
is in violation, or alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without limitation, those arising under
the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended (“CERCLA”), the Superfund
Amendments and Reauthorization Act of 1986 (“SARA”), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to the environment (hereinafter “Environmental Laws”),
which violation (i) involves Real Estate (other than the Borrowing Base Assets) and would have a
Material Adverse Effect or (ii) involves Borrowing Base Assets.




          (b) None of the Borrower or any of its Subsidiaries has received notice from any third party
including, without limitation, any federal, state or local governmental authority, (i) that it has
been identified by the United States Environmental Protection Agency (“EPA”) as a
potentially responsible party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that any hazardous waste, as defined by 42 U.S.C.
§9601(5), any hazardous substances as defined by 42 U.S.C. §9601(14), any pollutant or contaminant
as defined by 42 U.S.C. §9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws (“Hazardous
Substances”) which it has generated, transported or disposed of have been found at any site
at which a federal, state or local agency or other third party has conducted or has ordered that
the Borrower or any of its Subsidiaries conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party’s incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the release of Hazardous Substances.




          (c) (i) No portion of the Real Estate has been used for the handling, processing, storage or
disposal of Hazardous Substances except in accordance with applicable Environmental Laws, and no
underground tank or other underground storage receptacle for Hazardous Substances is located on any portion of the Real Estate except those which are being
operated and maintained in compliance with Environmental Laws; (ii) in the course of any activities
conducted by the Borrower or any of its Subsidiaries, or, to the best knowledge and belief of the
Borrower and its Subsidiaries, the operators of their properties, no Hazardous Substances have been
generated or are being used on the Real Estate except in the ordinary course of business and in
accordance with applicable Environmental Laws; (iii) there has been no past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping (other than the storing of materials in reasonable quantities to the extent
necessary for the operation of a Megaplex Movie Theatre or Entertainment-Related Retail Improvement
or such other property that is neither a Megaplex Movie Theatre or Entertainment—Related Retail
Improvement, in the ordinary course of business,



47









 






and in any event in compliance with all Environmental Laws) (a “Release”) or threatened Release of Hazardous Substances on, upon,
into or from the Borrowing Base Assets, which Release would have a material adverse effect on the
value of such Borrowing Base Assets or adjacent properties, or from any other Real Estate, which
Release could have a Material Adverse Effect; (iv) except as set forth on Schedule 6.20
hereto, there have been no Releases on, upon, from or into any real property in the vicinity of any
of the Real Estate which, through soil or groundwater contamination, may have come to be located
on, and which would have a material adverse effect on the value of, the Real Estate; and (v) any
Hazardous Substances that have been generated on any of the Real Estate have been transported
off-site in accordance with all applicable Environmental Laws. The representation set forth in
this §6.20(c) with respect to activities of lessees and other third parties unrelated to Borrower
and its Subsidiaries shall be limited to the best knowledge and belief of the Borrower and its
Subsidiaries.




          (d) To the best knowledge of each Borrower and its Subsidiaries, none of Borrower or any of
its Subsidiaries, nor the Real Estate is subject to any applicable Environmental Law requiring the
performance of Hazardous Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document or statement in each case by virtue of the
transactions set forth herein and contemplated hereby, or to the effectiveness of any other
transactions contemplated hereby except for such matters that shall be complied with as of the
Closing Date.




          (e) To the best knowledge of Borrower and its Subsidiaries, none of the Borrower or any of its
Subsidiaries has acquired any actual knowledge of any existing or closed sanitary landfills, solid
waste disposal sites, or hazardous waste treatment, storage or disposal facilities on or affecting
the Real Estate.




          (f) There has been no claim received by Borrower or any of its Subsidiaries, by any party that
any use, operation, or condition of the Real Estate has caused any nuisance or any other liability
or adverse condition on any other property which could reasonably be expected to have a Material
Adverse Effect, nor is there any knowledge of any basis for such a claim.




          (g) In the event that any event or circumstance described in §6.20 shall occur with respect to
any Real Estate of Borrower or any of its Subsidiaries after the date hereof that Borrower is
permitted to address pursuant to §8.6, or that is being remedied by Tenant, such event or circumstance shall not constitute a misrepresentation of Borrower or any of its
Subsidiaries at any time the representations and warranties under this §6.20 are repeated or deemed
repeated; provided further that the foregoing shall not limit the requirement that such
representations with respect to Borrowing Base Assets be correct when such properties are accepted
as Borrowing Base Asset.




     §6.21 Subsidiaries. Borrower-SPE does not have nor during any time that any
Obligations are outstanding, shall the Borrower-SPE have any Subsidiaries, except as approved by
the Agent. Schedule 6.21sets forth, as of the date hereof, all of the Affiliates (including
all Subsidiaries) of EPR, the form and jurisdiction of organization of each of the Affiliates, and
the owners of the direct and indirect ownership interests therein. No Person set forth on said



48









 




Schedule 6.21 owns any legal, equitable or beneficial interest in any of the Persons (other
than EPR, which is publicly traded) set forth on Schedules 6.21except as set forth on such
Schedule.




     §6.22 Leases. To the extent that any of the same have been requested by Agent or any
of the Lenders, the Borrower has delivered to the Agent (i) true copies of the Leases relating to
each Borrowing Base Asset and (ii) an accurate and complete Rent Roll and Lease Summary as of the
date of inclusion of each Borrowing Base Asset as a Borrowing Base Asset with respect to all Leases
of any portion of the Borrowing Base Asset. The Leases reflected on such Rent Roll constitute as
of the date thereof the sole agreements relating to leasing or licensing of space at such Borrowing
Base Asset and in the Building relating thereto. No tenant is entitled to any free rent, partial
rent, rebate of rent payments, credit, offset or deduction in rent, including, without limitation,
lease support payments or lease buy-outs, except as reflected in such Rent Roll or the applicable
Lease. Except as set forth in Schedule 6.22, the Leases reflected therein are, as of the
date of inclusion of the applicable Borrowing Base Asset as a Borrowing Base Asset, in full force
and effect in accordance with their terms, without any payment default or any other material
default under any Lease, nor are there any defenses, counterclaims, offsets, concessions or rebates
available to any tenant thereunder, except as provided in the applicable Leases or to the extent
Borrower has knowledge thereof, the Borrower has not given or made, any notice of any payment or
other material default with respect to any such Lease, or any claim, which remains uncured or
unsatisfied, with respect to any of the Leases, and to the best of the knowledge and belief of the
Borrower, there is no basis for any such claim or notice of default by any tenant. No property
other than the Borrowing Base Asset which is the subject of the applicable Lease is necessary to
comply with the requirements (including, without limitation, parking requirements) contained in
such Lease.



     §6.23 Property.



     (i) All of the Borrowing Base Assets are in good condition and working order subject to
ordinary wear and tear and casualty and condemnation permitted in the Loan Documents. All of the
other Real Estate of the Borrower and its Subsidiaries (including any property encumbered by an EPR
Senior First Mortgage) is in good condition and working order subject to ordinary wear and tear and
casualty and condemnation permitted in the Loan Documents, except for such portion of such Real
Estate which is not occupied by any tenant and where such failure would not have a Material Adverse
Effect. Such Real Estate (including any property encumbered by an EPR Senior First Mortgage), and
the use and operation thereof, is in material compliance with all applicable zoning, building codes and other applicable governmental regulations. There are no
unpaid or outstanding real estate or other taxes or assessments on or against any of the Borrowing
Base Assets which are payable by the Borrower-SPE or any mortgagor under any EPR Senior First
Mortgage (except only real estate or other taxes or assessments, that are not yet delinquent or are
being protested as permitted by this Agreement or the applicable Leases). There are no unpaid or
outstanding real estate or other taxes or assessments on or against any other property of the
Borrower or any of its Subsidiaries or an any property encumbered by an EPR Senior First Mortgage
which are payable by any of such Persons in any material amount (except only real estate or other
taxes or assessments, that are not yet delinquent or are being protested as permitted by this
Agreement). There are no pending eminent domain proceedings against any property of the Borrower
or any of its Subsidiaries or any of the property encumbered by an EPR Senior First Mortgage, or
any part thereof, and, to the knowledge of the



49









 




Borrower, no such proceedings are presently
threatened by any taking authority which may individually or in the aggregate have any Material
Adverse Effect. None of the property of the Borrower or any of its Subsidiaries or any property
encumbered by an EPR Senior First Mortgage is now damaged as a result of any fire, explosion,
accident, flood or other casualty in any manner which individually or in the aggregate would have
any Material Adverse Effect;




     (ii) If the Borrowing Base Asset and improvements are located in a special flood hazard area
designated as such by the Director of the Federal Emergency Management Agency, such Borrowing Base
Asset and improvements are and will continue to be covered by special flood insurance under the
National Flood Insurance Program;



     (iii) Neither Borrower-SPE, EPR nor any Subsidiary is the mortgagor under any mortgage, deed
of trust, or similar instrument encumbering the Borrowing Base Asset;



     (iv) Except with respect to that encumbered by an EPR Senior First Mortgage, the Borrowing
Base Asset has not been sold, mortgaged (or made the subject of a negative pledge, except as
provided to Agent herein) or underwritten to obtain financing (whether or not such financing
constitutes Indebtedness) under any financing arrangement other than the financing evidenced by the
Credit Agreement;



     (v) All necessary certificates of occupancy have been obtained and shall be maintained with
respect to the Borrower Base Property;



     (vi) The Borrowing Base Asset is a Real Estate asset for which the Borrower has conducted its
customary due diligence and review, including inspection of the Real Estate, and such customary due
diligence and review have not revealed facts that would adversely affect the value of the Real
Estate;



     (vii) Except with respect to that encumbered by an EPR Senior First Mortgage, Borrower-SPE
holds good and marketable fee simple title to or a valid and subsisting leasehold interest in each
parcel of Borrowing Base Asset, and has obtained a Title Policy with respect thereto, subject only
to the Permitted Encumbrances, a copy of which such Title Policy, Borrower shall make available to
Agent or Lenders upon request therefor.



     (viii) Borrower has obtained a Survey with proper Surveyor Certification on each of the
Borrower Base Properties and shall make copies of the same available to Agent or Lenders upon
request therefore; and



     (ix) The Borrower has complied with all other applicable conditions set forth in this
Agreement with respect to inclusion and retention of the Borrowing Base Assets as Borrowing Base
Assets.



     §6.24 Brokers. The Borrower has not engaged or otherwise dealt with any broker,
finder or similar entity in connection with this Agreement or the Loans contemplated hereunder.



     §6.25 Other Debt. None of EPR or any of its Subsidiaries is in default of the payment
of any Indebtedness in an amount equal to or greater than $1,000,000.00 in the aggregate, or the
material performance of any related agreement, mortgage, deed of trust, security agreement,



50









 




financing agreement, indenture or lease to which any of them is a party. The Borrower-SPE is not a
party to or bound by any agreement, instrument or indenture that may require the subordination in
right or time or payment of any of the Obligations to any other indebtedness or obligation of the
Borrower. Schedule 6.25 hereto sets forth all agreements, mortgages, deeds of trust,
financing agreements or other material agreements binding upon the Borrower and its Subsidiaries or
their respective properties and entered into by the Borrower as of the date of this Agreement with
respect to any Indebtedness of the Borrower or any of its Subsidiaries in an amount equal to or
greater than $1,000,000.00, in the aggregate, and the Borrower will upon request provide the Agent
with true, correct and complete copies thereof.




     §6.26 Solvency. As of the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, including all Loans made or to be made
hereunder, the Borrower is not insolvent on a balance sheet basis such that the sum of such
Person’s assets exceeds the sum of such Person’s liabilities, the Borrower is able to pay its debts
as they become due, and the Borrower has sufficient capital to carry on its business.



     §6.27 No Bankruptcy Filing. The Borrower is not contemplating either the filing of a
petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of its
assets or property.



     §6.28 No Fraudulent Intent. Neither the execution and delivery of this Agreement or
any of the other Loan Documents nor the performance of any actions required hereunder or thereunder
is being undertaken by the Borrower or its Subsidiaries with or as a result of any actual intent by
any of such Persons to hinder, delay or defraud any entity to which any of such Persons is now or
will hereafter become indebted.



     §6.29 Transaction in Best Interests of Borrower; Consideration. The transaction
evidenced by this Agreement and the other Loan Documents is in the best interests of the Borrower
and its Subsidiaries. The direct and indirect benefits to inure to the Borrower and its
Subsidiaries pursuant to this Agreement and the other Loan Documents constitute substantially more
than “reasonably equivalent value” (as such term is used in §548 of the Bankruptcy Code) and
“valuable consideration,” “fair value,” and “fair consideration,” (as such terms are used in
any applicable state fraudulent conveyance law), in exchange for the benefits to be provided
by the Borrower and its Subsidiaries pursuant to this Agreement and the other Loan Documents.



     §6.30 Capitalization. The authorized membership interest of Borrower-SPE is directly
or indirectly owned 100% by EPR.



     §6.31 EPR Senior First Mortgages. To the extent that any of the same have been
requested by Agent or any of the Lenders, the Borrower has delivered to the Agent (i) true copies
of the EPR Senior First Mortgages relating to each applicable Borrowing Base Asset and (ii) an
accurate and complete schedule of payments (the “EPR Senior Loan Payment Schedule”) due
under each EPR Senior Property Loan relating to each applicable Borrowing Base Asset as of the date
of inclusion of each Borrowing Base Asset as a Borrowing Base Asset. Except as set forth in
Schedule 6.31, the EPR Senior First Mortgages reflected therein are, as of the date of
inclusion of the applicable Borrowing Base Asset as a Borrowing Base Asset, (i) in full force and
effect in accordance with their terms, (ii) without any payment default or any other material



51









 




default under any EPR Senior Property Loan, and (iii) without any defenses, counterclaims or
offsets available to any mortgagor thereunder. Additionally, as of the date of inclusion of the
applicable Borrowing Base Asset as a Borrowing Base Asset, the Borrower has not given or made, any
notice of any payment or other material default with respect to any EPR Senior Property Loan, or
any claim, which remains uncured or unsatisfied, with respect to any of the EPR Senior Property
Loans, and to the best of the knowledge and belief of the Borrower, there is no basis for any such
claim or notice of default by any EPR Mortgagor.




     §6.32 [Reserved].



     §6.33 Certificates of Occupancy; Licenses All certificates of completion and
occupancy permits and, to the best knowledge of Borrower, all other certifications, permits,
licenses and approvals, including any applicable liquor license required for the legal use,
occupancy and operation of each of the Borrowing Base Assets for its approved use and all
appurtenant and related uses (collectively, the “Licenses”), have been obtained and are in
full force and effect.”.



     §6.34 Insurance. The Borrowing Base Assets and improvements thereon are insured by
fire and other insurance policies providing coverage and otherwise in accordance with industry
standards. Such insurance (i) names and will continue to name the Borrower-SPE and its successors
and assigns as an insured thereunder and (ii) are and will continue to be in full force and effect.
Borrower shall, in connection with the closing hereunder and prior to the expiration of any
insurance required hereunder, deliver to the Agent and Lenders certificates of any insurance
required hereunder evidencing the existence of such insurance, which such certificates shall be in
form and substance reasonably satisfactory to Agent and Lenders, it being agreed that such
insurance and certificates may be maintained by a Tenant or an EPR Mortgagor at each of the
Borrowing Base Assets. Insurance certificates which comply with the terms of the applicable Leases
or EPR Senior Property Loan Documents, as the case may be, approved by Agent shall be deemed
acceptable to Agent and Lenders.



§7. AFFIRMATIVE COVENANTS.




     The Borrower covenants and agrees to the following, so long as any Obligation, Loan or Note is
outstanding:



     §7.1 Punctual Payment. The Borrower will duly and punctually pay or cause to be paid
the principal and interest on the Loans and all interest and fees provided for in this Agreement,
all in accordance with the terms of this Agreement and the Notes, as well as all other sums owing
pursuant to the Loan Documents.



     §7.2 Maintenance of Office. The Borrower will maintain its respective chief executive
office at 30 Pershing Road, Suite 201, Kansas City, MO,64108, or at such other place in the United
States of America as the Borrower shall designate prior to any such change in location by written
notice to the Agent and the Lenders, where notices, presentations and demands to or upon the
Borrower in respect of the Loan Documents may be given or made.



     §7.3 Records and Accounts. The Borrower will (a) keep, and cause each of its
Subsidiaries to keep, proper records and books of account in which true and correct entries will



52









 




be made in accordance with GAAP and (b) maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation and amortization of its properties and the properties of its
Subsidiaries, contingencies and other reserves. Neither the Borrower, nor any of its Subsidiaries
shall, without the prior written consent of the Required Lenders, (x) make any material change to
the accounting procedures used by such Person in preparing the financial statements and other
information described in §6.4 or §7.4, except as required by SEC Rules or interpretations thereof
or accounting industry pronouncements or (y) change its fiscal year.




     §7.4 Financial Statements, Certificates and Information. Borrower will deliver or
cause to be delivered to the Agent with sufficient copies for each of the Lenders which will be
delivered by Agent to Lenders:



          (a) as soon as practicable, but in any event not later than seventy-five (75) days after the
end of each fiscal year of Borrower, commencing with the fiscal year ending December 31, 2007, the
audited Consolidated balance sheet of EPR and its Consolidated Subsidiaries at the end of such
year, and the related audited Consolidated statements of income, changes in capital and cash flows
for such year, each setting forth in comparative form the figures for the previous fiscal year and
all such statements to be in reasonable detail, prepared in accordance with GAAP, and accompanied
by an auditor’s report prepared without qualification as to the scope of the audit by a “Big Four”
accounting firm or another nationally recognized firm acceptable to the Agent (the foregoing with
respect to EPR and its Consolidated Subsidiaries may be satisfied by delivery of the Form 10-K of
EPR filed with the SEC, provided, however, that in no event shall any reference to any prior 10-Ks
or Proxy Statements which may be incorporated by reference within the filings then being delivered
to Agent be deemed delivered to Agent nor shall any such information contained in any such prior
filings be deemed delivered to Agent), and any other information the Agent may reasonably request
to complete a financial analysis of the Borrower, and EPR’s Subsidiaries;




          (b) as soon as practicable, but in any event not later than forty-five (45) days after the end
of each fiscal quarter (including the fourth quarter) of Borrower, commencing with September 30,
2007, copies of the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such quarter, and the related unaudited Consolidated statements of income and cash flows
for the portion of Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in
accordance with GAAP (the foregoing with respect to EPR and its Subsidiaries for the first three
quarters of any fiscal year may be satisfied by delivery of the Form 10-Q of EPR filed with the SEC
provided, however, that in no event shall any reference to any prior 10-Qs or Proxy Statements
which may be incorporated by reference within the filings then being delivered to Lender be deemed
delivered to Lender nor shall any such information contained in any such prior filings be deemed
delivered to Lender), together with a certification by the chief financial officer or accounting
officer of Borrower that the information contained in such financial statements fairly presents the
financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end
adjustments);




          (c) simultaneously with the delivery of the financial statements referred to in subsections
(a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief
financial officer or chief accounting officer of Borrower in the form of Exhibit K hereto
(or in such other form as the Agent may approve from time to time) setting forth in reasonable
detail



53









 






computations evidencing compliance or non-compliance (as the case may be) with the covenants
contained in §9 and the other covenants described in such certificate and (if applicable) setting
forth reconciliations to reflect changes in GAAP since the Balance Sheet Date. Borrower shall
submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit
J attached hereto pursuant to which the Borrower shall calculate the amount of the Borrowing
Base as of the end of the immediately preceding fiscal quarter of the Borrower. All income,
expense and value associated with Real Estate or other Investments disposed of during any quarter
will be eliminated from calculations, where applicable. The Compliance Certificate shall be
accompanied by copies of the statements of the Borrowing Base Assets Net Operating Income for such
fiscal quarter and on a trailing four-quarter basis for each of the Borrowing Base Assets, prepared
on a basis consistent with the statements furnished to the Lenders prior to the date hereof and
otherwise in form and substance reasonably satisfactory to the Agent, together with a certification
by the chief financial officer or chief accounting officer of Borrower that the information
contained in such statement fairly presents the Borrowing Base Assets Net Operating Income of the
Borrowing Base Assets for such periods;




          (d) contemporaneously with the delivery of the financial statements referred to in clause (a)
above, the statement of all contingent liabilities involving amounts of $1,000,000.00 or more of
the Borrower and its Subsidiaries which are not reflected in such financial statements or referred
to in the notes thereto (including, without limitation, all guaranties, endorsements and other
contingent obligations in respect of the indebtedness of others, and obligations to reimburse the
issuer in respect of any letters of credit);




          (e) upon reasonable request by the Agent on behalf of any Lender, as soon as practicable but
in any event not later than forty-five (45) days after the end of the most recent fiscal quarter of
Borrower (including the fourth fiscal quarter in each year), a Consolidated operating statement for
the Borrowing Base Assets and as requested by Agent or any Lender, a Rent Roll for each of the Borrowing Base Assets and a copy of each Lease or amendment entered
into with respect to a Borrowing Base Asset during such quarter;




          (f) contemporaneously with the filing or mailing thereof, copies of all material of a
financial nature, reports or proxy statements sent to the shareholders of EPR;




          (g) [Reserved];




          (h) promptly upon the filing hereof, copies of all registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its equivalent);




          (i) [Reserved];




          (j) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes
for the Borrowing Base Assets;




          (k) not later than November 15 of each year, the Consolidated cash flow projections of the
Borrower and its Subsidiaries for the next three years;




          (l) from time to time such other financial data and information in the possession of the
Borrower or its Subsidiaries (including without limitation auditors’ management letters,



54









 






status of litigation or investigations against the Borrower and any settlement discussions relating thereto,
property inspection and environmental reports and information as to zoning and other legal and
regulatory changes affecting the Borrower) as the Agent may reasonably request. Information
concerning such litigation or settlement discussions shall not include attorney-client privileged
communications, but shall otherwise include information which may be confidential or subject to a
work-product privilege so that the Agent and the Lenders receive the same level of disclosure from
the Borrower with respect to such matters as has been made prior to the Closing Date.




          (m) promptly upon their becoming available, copies of all registration statements and regular
periodic reports, if any, that Borrower shall have filed with the Commission (or any Governmental
Authority substituted therefor) or any national securities exchange, including each Form 8-K, Form
10-K and Form 10-Q filed with the Commission.




          (n) as soon as is reasonably practicable, but in any event not later than forty-five (45) days
after the end of each fiscal quarter (including the fourth quarter), statements of Exhibitor’s
EBITDAR for the prior quarter and for the trailing four quarters.




     §7.5 Notices.



          (a) Defaults. The Borrower will immediately upon obtaining actual knowledge of same
notify the Agent in writing of the occurrence of any Default or Event of Default, which notice
shall describe such occurrence with reasonable specificity and shall state that such notice is a
“notice of default or event of default”. If any Person shall give any notice or take any other
action in respect of a claimed default (whether or not constituting an Event of Default) under this
Agreement or under any note, evidence of indebtedness, indenture or other obligation to which or with respect to which the Borrower or any of its Subsidiaries is a party or obligor,
whether as principal or surety, and such default would permit the holder of such note or obligation
or other evidence of indebtedness to accelerate the maturity thereof, which acceleration would
either cause a Default or have a Material Adverse Effect, the Borrower shall promptly give written
notice thereof to the Agent and each of the Lenders, describing the notice or action and the nature
of the claimed default.




          (b) Environmental Events. The Borrower will give notice to the Agent within five (5)
Business Days of obtaining actual knowledge of (i) any potential or known Release, or threat of
Release, of any Hazardous Substances in an amount that may be required to be contained, removed or
otherwise remediated at or from any Real Estate; (ii) any violation of any Environmental Law that
the Borrower or any of its Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral report is made) to any federal,
state or local environmental agency or (iii) any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that in either case involves (A) any Borrowing Base
Asset, or (B) any other Real Estate and could reasonably be expected to have a Material Adverse
Effect.




          (c) Notification of Claims Against Borrowing Base Assets. The Borrower will give
notice to the Agent in writing within five (5) Business Days of obtaining actual knowledge



55









 






of any material setoff, claims (including, with respect to the Borrowing Base Assets, environmental
claims), withholdings or other defenses to which any of the Borrowing Base Assets, or the rights of
the Agent or the Lenders with respect to the Borrowing Base Assets, are subject.




          (d) Notice of Litigation and Judgments. The Borrower will give notice to the Agent in
writing within five (5) Business Days of obtaining actual knowledge of any litigation or
proceedings threatened in writing or any pending litigation and proceedings affecting the Borrower
or any of its Subsidiaries or to which the Borrower or any of its Subsidiaries is or is to become a
party involving an uninsured claim against any of the Borrower or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect and stating the nature and status of
such litigation or proceedings. The Borrower will give notice to the Agent, in writing, in form
and detail reasonably satisfactory to the Agent and each of the Lenders, within ten days of any
judgment not covered by insurance, whether final or otherwise, against any of the Borrower or any
of its Subsidiaries in an amount in excess of $1,000,000 in the aggregate, except that notice is
not required hereunder for EPR unless such amount exceeds $5,000,000 in the aggregate.




          (e) Notice of Proposed Sales, Encumbrances, Refinance or Transfer of Non-Borrowing Base
Assets. The Borrower will give notice to the Agent of any completed sale, encumbrance,
refinance or transfer of any Real Estate in amounts exceeding $50,000,000.00 (other than the
Borrowing Base Assets) within any fiscal quarter of Borrower, such notice to be submitted together
with the Compliance Certificate provided or required to be provided to the Agent and the Lenders
under §7.4 with respect to such fiscal quarter. The Compliance Certificate shall with respect to
any completed sale, encumbrance, refinance or transfer be adjusted in the best good faith estimate of Borrower to give effect to such sale, encumbrance,
refinance or transfer and demonstrate that no Default or Event of Default with respect to the
covenants referred to therein shall exist after giving effect to such sale, encumbrance, refinance
or transfer. Notwithstanding the foregoing, in the event of any sale, encumbrance, refinance or
transfer of any Real Estate or other Investment of the type described in §8.3(i) involving Real
Estate or such other Investment by EPR in an amount in excess of $25,000,000 per quarter, the
Borrower shall promptly give notice to the Agent of such transaction, which notice shall be
accompanied by a Compliance Certificate prepared using the financial statements of Borrower most
recently provided or required to be provided to the Agent and the Lenders under §6.4 or §7.4,
adjusted as provided in this paragraph.




          (f) ERISA. The Borrower will give notice to the Agent within five (5) Business Days
after the Borrower or any ERISA Affiliate (i) gives or is required to give notice to the PBGC of
any “reportable event” (as defined in §4043 of ERISA) with respect to any Guaranteed Pension Plan,
Multiemployer Plan or Employee Benefit Plan, or knows that the plan administrator of any such plan
has given or is required to give notice of any such reportable event; (ii) gives a copy of any
notice of complete or partial withdrawal liability under Title IV of ERISA; or (iii) receives any
notice from the PBGC under Title IV or ERISA of an intent to terminate or appoint a trustee to
administer any such plan.





56












 





          (g) Notification of Lenders. Within five (5) Business Days after receiving any notice
under this §7.5, the Agent will forward a copy thereof to each of the Lenders, together with copies
of any certificates or other written information that accompanied such notice.




          (h) Notice of REIT Status. EPR shall give each Lender notice in the event it does not
maintain its status as a REIT or takes any action which could lead to its disqualification as a
REIT.




     §7.6 Existence; Maintenance of Properties.



          (a) Borrower-SPE will preserve and keep in full force and effect its status as a Special
Purpose Entity, as set forth in §6.1(a) herein. EPR will preserve and keep in full force and
effect its existence as a Maryland real estate investment trust. EPR will cause each of its
Subsidiaries to preserve and keep in full force and effect their legal existence in the
jurisdiction of its incorporation or formation. EPR will preserve and keep in full force all of
its rights and franchises and those of its Subsidiaries, the preservation of which is necessary to
the conduct of their business. Borrower-SPE shall at all times comply with all requirements and
applicable laws, guidelines and regulations necessary to maintain its Special Purpose Entity
status. EPR shall at all times comply with all requirements and applicable laws and regulations
necessary to maintain REIT status. The common shares of EPR shall at all times be listed for
trading and be traded on the New York Stock Exchange (NYSE), unless otherwise consented to by the
Required Lenders.




          (b) The Borrower (i) will cause all of its properties and those of EPR’s Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment, and (ii) will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof in all cases in which the failure so to do would have a
material adverse effect on the condition of any Borrowing Base Asset or would cause a Material
Adverse Effect. Without limitation of the obligations of the Borrower under this Agreement with
respect to the maintenance of the Borrowing Base Assets, the Borrower shall promptly and diligently
comply with the recommendations of the Environmental Engineer concerning the maintenance, operation
or upkeep of the Borrowing Base Assets contained in the building inspection and environmental
reports delivered to the Agent or otherwise obtained by Borrower. This §7.6(b) shall be subject,
however, to any provisions in the applicable Leases or EPR Senior Property Loan Documents which
restrict Borrower or any applicable Subsidiaries from making any such repairs or replacements or
the like or which impose such duties instead on the tenant or mortgagor, as applicable.




     §7.7 Insurance.



          (a) The Borrower will procure and maintain or cause to be procured and maintained (i)
insurance covering the Borrower-SPE, EPR and its Subsidiaries, the Borrowing Base Assets and its
properties (the cost of such insurance to be borne by the insured thereunder) with
financially sound and reputable insurers (or self-insurance provided by Borrower or
creditworthy tenants) in such amounts and against such risks and casualties as are customary for
properties of similar character and location, due regard being given to the type of improvements
thereon, their



57









 






construction, location, use and occupancy, and (ii) such insurance as is required in
the applicable Leases for the Borrowing Base Assets.




          (b) The Borrower shall, prior to the expiration of any insurance required hereunder, renew or
cause to be renewed such insurance and upon request by Agent or any of the Lenders, deliver to
Agent evidence of insurance evidencing the existence of all such insurance, it being understood by
the Agent and the Lenders that such insurance certificates may be maintained by the Tenant or EPR
Mortgagor under its applicable lease or EPR Senior First Mortgage, as the case may be, for the
Borrowing Base Asset.




          (c) All insurance provided for in §7.7(a) above shall be obtained under valid and enforceable
policies (collectively, the “Policies” or in singular, the “Policy”). As to initial
Borrowing Base Assets, the Policies are issued pursuant to the terms of the existing Leases or EPR
Senior Property Loan Documents, as applicable. With respect to any subsequent Borrowing Base
Assets, the Policies shall be issued by financially sound and responsible insurance companies
authorized to do business in the applicable state and having a financial strength rating of not
less than the better of A- and “A2” or better by the Rating Agencies.




          (d) Upon request by the Agent or any Lender, the Borrower will provide to the Agent for the
benefit of the Lenders copies of Title Policies for all of the Borrowing Base Assets.




     §7.8 Taxes; Liens. The Borrower will, and will cause its Subsidiaries to (which shall
include permitting the applicable Tenant to pay directly), duly pay and discharge, or cause to be
paid and discharged, before the same shall become delinquent, all taxes, assessments and other
governmental charges imposed upon them or upon the Borrowing Base Assets or the other Real Estate,
sales and activities, or any part thereof, or upon the income or profits therefrom as well as all
claims for labor, materials or supplies that if unpaid might by law become a lien or charge upon
any of its property or other Liens affecting any of the Borrowing Base Assets or other property of
Borrower, or its Subsidiaries, provided that any such tax, assessment, charge or levy or
claim need not be paid if the validity or amount thereof shall currently be contested in good faith
by Borrower or the applicable Tenant in accordance with the applicable Lease by appropriate
proceedings which shall suspend the collection thereof with respect to such property, neither such
property nor any portion thereof or interest therein would be in any danger of sale, forfeiture or
loss by reason of such proceeding and the Borrower shall have set aside on its books adequate
reserves in accordance with GAAP; and provided, further, that forthwith upon the
commencement of proceedings to foreclose any lien that may have attached as security therefor, the
Borrower either (i) will provide a bond issued by a surety reasonably acceptable to the Agent and
sufficient to stay all such proceedings or (ii) if no such bond is provided, will pay each such
tax, assessment, charge or levy. Notwithstanding anything in this §7.8 to the contrary, insofar as
this §7.8 permits the Borrower to shift any duty of the Borrower under this §7.8 to a Tenant, the
Borrower may likewise shift such duty to an EPR Mortgagor to the extent the Borrower has the right
under the applicable EPR Senior Property Loan Documents to do so; and, likewise,
references in this §7.8 permitting a Tenant to contest taxes or the like shall apply with the
same force and effect to an EPR Mortgagor.



58









 





     §7.9 Inspection, Books and Records. The Borrower will keep proper books of record and
account in which full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities; and will permit representatives of the Agent at the
expense of the Agent or the Lender requiring the Agent to conduct such visit and inspection, to
visit and inspect any of its properties, to examine and make abstracts from any of its books and
records and to discuss its affairs, finances and accounts with its officers and independent public
accountants, all at such reasonable times, upon reasonable prior notice and as often as may
reasonably be desired, but conducted in such a manner as to not unreasonably interfere with the
conduct of Borrower’s business or the business of any tenant, or any EPR Mortgagor and subject in
all events to the terms of the applicable Lease or EPR Senior Loan Property Loan Documents, as the
case may be.



     §7.10 Compliance with Laws, Contracts, Licenses, and Permits. The Borrower will, and
will cause each of its Subsidiaries to, comply in all respects with (i) all applicable laws and
regulations now or hereafter in effect wherever its business is conducted, including all
Environmental Laws, (ii) the provisions of its corporate charter, partnership agreement, limited
liability company agreement or declaration of trust, as the case may be, and other charter
documents and bylaws, (iii) all agreements and instruments to which it is a party or by which it or
any of its properties may be bound, (iv) all applicable decrees, orders, and judgments, and (v) all
licenses and permits required by applicable laws and regulations for the conduct of its business or
the ownership, use or operation of its properties, except where a failure to so comply with any of
clauses (i) through (v) would not have a Material Adverse Effect. If any authorization, consent,
approval, permit or license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower may fulfill any of its obligations
hereunder, the Borrower will immediately take or cause to be taken all steps necessary to obtain
such authorization, consent, approval, permit or license and furnish the Agent and the Lenders with
evidence thereof.



     §7.11 Further Assurances. The Borrower will and will cause each of its Subsidiaries
to, cooperate with the Agent and the Lenders and execute such further instruments and documents as
the Lenders or the Agent shall reasonably request to carry out to their satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.



     §7.12 Management. The Borrower-SPE shall not enter into nor shall it allow an EPR
Mortgagor to enter into any new management agreement with a third-party manager after the date
hereof for any Borrowing Base Asset without the prior written consent of the Agent (which shall not
be unreasonably withheld or delayed). Borrower has provided to Agent full and complete copies of
the currently existing management contracts for the initial Borrowing Base Assets (the “Initial
Management Contracts”), which such Initial Management Contracts are in full force and effect as
of the date of this Agreement. The parties acknowledge that Agent has approved said Initial
Management Contracts.



     §7.13 Compliance with Environmental Laws. At its sole cost and expense, the Borrower
shall at all times cause the Borrowing Base Assets and the use and operation thereof to be in
compliance with all applicable laws, rules and regulations, including without limitation, all
Environmental Laws then in effect.



59









 





     In the ordinary course of its business, the Borrower conducts periodic reviews of the effect
of Environmental Laws on the business, operations and properties of the Borrower and its
Subsidiaries, including without limitation, all Real Property assets in the course of which it
identifies and evaluates associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of properties presently owned,
any capital or operating expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or contract, any
related constraints on operating activities, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis of this review,
the Borrower has reasonably concluded that such associated liabilities and costs, including the
costs of compliance with Environmental Laws, are unlikely to have a Material Adverse Effect on the
Borrower and its Subsidiaries.



     §7.14 Business Operations. The Borrower shall operate its respective businesses in
substantially the same manner and in substantially the same fields and lines of business as such
business is now conducted and in compliance with the terms and conditions of this Agreement and the
Loan Documents.



     §7.15 Registered Servicemark. Without the prior written consent of the Agent, none of
the Borrowing Base Assets shall be owned or operated by the Borrower under any registered or
protected trademark, tradename, servicemark or logo. Notwithstanding the foregoing, this provision
shall not prevent any applicable Tenant or applicable EPR Mortgagor from operating a Borrowing Base
Asset under its trademarks and tradenames or service marks.



     §7.16 [Reserved].



     §7.17 Distributions of Income to EPR. EPR shall cause its Subsidiaries to promptly
distribute to EPR (but not less frequently than once each fiscal quarter of EPR, unless otherwise
approved by the Agent), whether in the form of dividends, distributions or otherwise, all profits,
proceeds or other income relating to or arising from its Subsidiaries’ use, operation, financing,
refinancing, sale or other disposition of their respective assets and properties after (a) the
payment by each Subsidiary of its debt service and operating expenses for such quarter and (b) the
establishment of reasonable reserves for the payment of operating expenses not paid on at least a
quarterly basis and capital improvements to be made to such Subsidiary’s assets and properties
approved by such Subsidiary in the ordinary course of business consistent with its past practices,
or reserves required under applicable loan covenants; provided however, that in the event that (i)
an Event of Default shall have occurred and be continuing, and the maturity of the Obligations has
been accelerated, or (ii) there shall have occurred and be continuing, an Event of Default under
any of §§ 12.1(b), 12.1(c), 12.1(i), 12.1(j), or 12.1(k), then the Borrower-SPE shall not make any
Distributions, either directly or indirectly to EPR, whatsoever.



     §7.18 Borrowing Base Assets. Borrower shall: (i) defend the right, title and interest
of the Borrower-SPE in and to the Borrowing Base Assets against the claims and demands of all
Persons; (ii) shall cause the Borrowing Base Assets to be managed in accordance with the policies
and procedures customary for assets of a type such as said Borrowing Base Assets; (iii) shall
review its policies and procedures periodically to confirm that the policies and procedures are
being complied with in all material respects and are adequate to meet the Borrower’s



60









 




business
objectives with respect to the Borrowing Base Assets; and (iv) shall not transfer or assign, or
grant any Lien or option with respect to, or grant any pledge or negative pledge of the Borrowing
Base Assets or any interest in the Borrowing Base Assets (except with respect to the negative
pledges of the Borrowing Base Assets provided for the benefit of the Lenders hereunder, and except
as may otherwise be permitted under this Agreement).




     §7.19 [Reserved].



     §7.20 Plan Assets. The Borrower will do, or cause to be done, all things necessary to
ensure that none of the Borrowing Base Assets will be deemed to be Plan Assets at any time.



     §7.21 Certificates of Occupancy; Licenses. Borrower shall keep and maintain or cause
the applicable tenants or mortgagors to keep and maintain, all licenses necessary for the operation
of the Borrowing Base Assets for their approved uses and all appurtenant and related uses. The use
being made of each of the Borrowing Base Assets is in conformity with the certificate of occupancy
issued for each such Borrowing Base Asset.



     §7.22 EPR Senior First Mortgages. Borrower covenants, represents and warrants to
Agent and each of the Lenders with respect to any EPR Senior First Mortgage on any of the Borrowing
Base Assets (a “Qualified EPR Senior Mortgage” or collectively, “Qualified EPR Senior
Mortgages”), if any, and any related EPR Senior Property Loan Documents (collectively, with the
Qualified EPR Senior Mortgage(s), the “Qualified Senior Property Loan Documents”), as
follows:



          (a) Except as previously disclosed to Agent, to the best knowledge of the Borrower, no default
has occurred and is continuing under the terms of any Qualified Senior Property Loan Documents, and
no event has occurred that, with the passage of time or service of notice, or both, would
constitute an event of default under any Qualified Senior Property Loan Documents.




          (b) Each of the Qualified Senior Property Loan Documents is in full force and effect.




          (c) All principal, interest and all other charges due and payable under each of the Qualified
Senior Property Loan Documents, have been fully paid.




          (d) Borrower shall, at its sole cost and expense, promptly and timely perform and observe, or
cause the applicable mortgagor under a Qualified EPR Senior Mortgage to promptly and timely perform
and observe, all the material terms, covenants and conditions required to be performed and observed
by Borrower as mortgagor under each Qualified EPR
Senior Mortgage and related Qualified Senior Property Loan Documents (including the payment of all
principal, interest and other charges required to be paid under such Qualified Senior Property Loan
Documents).




          (e) Borrower shall notify Agent promptly in writing after any Obligor receives notice of the
occurrence of any material default by the mortgagor under any Qualified Senior Property Loan
Documents or the occurrence of any event that, with the passage of time or



61









 






service of notice, or
both, would constitute a material default by the mortgagor under any Qualified Senior Property Loan
Documents, and the receipt by Borrower of any notice (written or otherwise) from the mortgagor
under any Qualified EPR Senior Mortgage noting or claiming the occurrence of any default by any
obligor under any Qualified Senior Property Loan Documents or the occurrence of any event that,
with the passage of time or service of notice, or both, would constitute a default by any obligor
under any Qualified Senior Property Loan Documents. Borrower shall promptly deliver to Agent a
copy of any such written notice of default.




          (f) Borrower shall promptly, after obtaining knowledge of such filing notify Agent orally of
any filing, by or against any mortgagor under a Qualified EPR Senior Mortgage of a petition under
the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to
Agent, setting forth any information available to Borrower as of the date of such filing, the court
in which such petition was filed, and the relief sought in such filing. Borrower shall promptly
deliver to Agent any and all notices, summonses, pleadings, applications and other documents
received by Borrower in connection with any such petition and any proceedings relating to such
petition.




          (g) Upon the request of Agent or any Lender, Borrower shall deposit with Agent a copy of each
fully executed Qualified EPR Senior Mortgage along with the corresponding Qualified Senior Property
Loan Documents certified by Borrower as true and correct.”




     §7.23 Ground Leases. Borrower covenants, represents and warrants to Agent and each of
the Lenders with respect to any ground lease of any of the Borrowing Base Assets (a “Qualified
Ground Lease” or collectively, “Qualified Ground Leases”), if any, as follows:



          (a) Except as previously disclosed to Agent, to the best knowledge of the Borrower, no
default has occurred and is continuing under the terms of any Qualified Ground Lease, and no
event has occurred that, with the passage of time or service of notice, or both, would
constitute an event of default under any Qualified Ground Lease.




          (b) Each Qualified Ground Lease is in full force and effect.




          (c) All rents, additional rents, percentage rents and all other charges due and payable
under each Qualified Ground Lease have been fully paid.




          (d) Subject to the Permitted Encumbrances, Borrower is the owner of the entire lessee’s
interest in and under each Qualified Ground Lease and has the right and
authority under each Qualified Ground Lease to execute this Agreement and other related
Loan Documents.




          (e) Borrower shall, at its sole cost and expense, promptly and timely perform and
observe, or cause the applicable Tenant under a Qualified Ground Lease to promptly and
timely perform and observe, all the material terms, covenants and conditions required to be
performed and observed by Borrower as lessee under each Qualified Ground Lease



62









 






(including
the payment of all rent, additional rent, percentage rent and other charges required to be
paid under such Qualified Ground Lease).




          (f) Borrower shall notify Agent promptly in writing after any Obligor receives notice
of the occurrence of any material default by the lessor under any Qualified Ground Lease or
the occurrence of any event that, with the passage of time or service of notice, or both,
would constitute a material default by the lessor under any Qualified Ground Lease, and the
receipt by Borrower of any notice (written or otherwise) from the lessor under any Qualified
Ground Lease noting or claiming the occurrence of any default by any Obligor under any
Qualified Ground Lease or the occurrence of any event that, with the passage of time or
service of notice, or both, would constitute a default by any Obligor under any Qualified
Ground Lease. Borrower shall promptly deliver to Agent a copy of any such written notice of
default.




          (g) Borrower shall promptly, after obtaining knowledge of such filing notify Agent
orally of any filing, by or against any lessor under a Qualified Ground Lease of a petition
under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such
filing to Agent, setting forth any information available to Borrower as of the date of such
filing, the court in which such petition was filed, and the relief sought in such filing.
Borrower shall promptly deliver to Agent any and all notices, summonses, pleadings,
applications and other documents received by Borrower in connection with any such petition
and any proceedings relating to such petition.




          (h) Upon the request of Agent or any Lender, Borrower shall deposit with Agent a copy
of each fully executed Qualified Ground Lease certified by Borrower as true and correct.




§8. NEGATIVE COVENANTS.




     The Borrower covenants and agrees that, so long as any Obligations, Loan or Note is
outstanding:



     §8.1 Restrictions on Indebtedness of Borrower.



     A. The Borrower-SPE. The Borrower-SPE will not create, incur, assume, guarantee or
be or remain liable, contingently or otherwise, with respect to any Indebtedness (whether secured
or unsecured, recourse or non-recourse) other than:



          (a) Indebtedness to the Lenders and the Agent arising under any of the Loan Documents;




          (b) current liabilities of the Borrower-SPE incurred in the ordinary course of business but
not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit
on an open account basis customarily extended and in fact extended in connection with normal
purchases of goods and services;




63









 








          (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims
for labor, materials and supplies to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of §7.8;




          (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount
not resulting in a Default; and




          (e) endorsements for collection, deposit or negotiation and warranties of products or
services, in each case incurred in the ordinary course of business.




     B. EPR. EPR shall not, without the prior written consent of the Required Lenders,
create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to
any Indebtedness on a recourse basis, except: (a) the limited secured recourse Indebtedness
permitted pursuant to §9.10 herein; (b) Indebtedness under the Revolving Credit Agreement (as
defined herein-below) and unsecured debt (i.e., Indebtedness that is not secured by a Lien)
permitted pursuant to §9.1 of that certain Amended and Restated Master Credit Agreement dated as of
January 31, 2006 by and among 30 West Pershing, LLC, EPR, EPR Hialeah, Inc., Westcol Center, LLC
and EPR Melbourne, Inc., as borrowers thereunder, and Keybank, as agent and lender and the other
lenders a party to said agreement from time to time, as the same has been or may hereafter be
modified or amended (the “Revolving Credit Agreement”); (c) Indebtedness under this
Agreement and the Other Loan Documents, and, (d) Indebtedness whose recourse is solely for
so-called “bad-boy” acts, including without limitation, (i) failure to account for a tenant’s
security deposits, if any, for rent or any other payment collected by a borrower from a tenant
under the lease, all in accordance with the provisions of any applicable loan documents, (ii) fraud
or a material misrepresentation made by a Borrower, or the holders of beneficial or ownership
interests in such Borrower, in connection with the financing evidenced by the applicable loan
documents; (iii) any attempt by a Borrower to divert or otherwise cause to be diverted any amounts
payable to the applicable lender in accordance with the applicable loan documents; (iv) the
misappropriation or misapplication of any insurance proceeds or condemnation awards relating to the
Borrowing Base Assets; (v) voluntary or involuntary bankruptcy by a borrower; and (vi) any
environmental matter(s) affecting any Borrowing Base
Assets which is introduced or caused by a Borrower or any holder of a beneficial or ownership
interest in a Borrower.



     §8.2 Restrictions on Liens, Etc. The Borrower and its Subsidiaries will not
(a) create or incur or suffer to be created or incurred or to exist any lien, security title,
encumbrance, mortgage, pledge, negative pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (b) with respect to Borrower-SPE, only, pledge
its assets for the benefit of any other Person other than with respect to this Agreement and the
Loan Documents, nor shall it agree with any other party that it shall not pledge its assets for the
benefit of any other Person, including without limitation, the pledge of any equity by EPR of the
Borrower-SPE or any similar agreement with any other Person other than with respect to this
Agreement, (c) pledge any equity interest of the Borrower-SPE; (d) transfer any of its property or
assets or the income or profits therefrom for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of its general
creditors; (e) acquire, or agree or have an option to acquire, any property or assets upon



64









 




conditional sale or other title retention or purchase money security agreement, device or
arrangement; (f) suffer to exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim or demand against it that if unpaid might by law or
upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever over any of its
general creditors; (g) sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse (provided that this
clause (g) shall not prohibit a true sale of a land option or development agreement or the sale of
Real Estate by Borrower); or (h) incur or maintain any obligation to any holder of Indebtedness of
Borrower which prohibits the creation or maintenance of any lien securing the Obligations or any
other Indebtedness from the Lenders (collectively, “Liens”); provided that the
Borrower and its Subsidiaries may create or incur or suffer to be created or incurred or to exist:




               (i) Liens on properties to secure taxes, assessments and other governmental charges or claims
for labor, material or supplies in respect of obligations not then delinquent or being contested in
good faith;




               (ii) deposits or pledges made in connection with, or to secure payment of, workers’
compensation, unemployment insurance, old age pensions or other social security obligations;




               (iii) Liens on assets other than the Borrowing Base Assets or any interest therein (including
the rents, issues and profits therefrom) in respect of judgments, awards or Indebtedness which is
permitted by §8.1B(a) and §9.10;




               (iv) encumbrances on the Real Estate permitted under the applicable Lease or EPR Senior
Property Loan Documents or consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and irregularities in the title thereto,
landlord’s or lessor’s liens under leases to which the Borrower or any such Subsidiary is a party,
purchase money security interests and other liens or encumbrances, which do not
individually or in the aggregate have a materially adverse effect on the business of the
Borrower on a consolidated basis;




               (v) liens and encumbrances on a Borrowing Base Asset expressly permitted hereunder;




               (vi) Liens in favor of the Agent and the Lenders arising under the Collateral Agreement or any
other Loan Documents; and




               (vii) Liens in the nature of negative pledge agreements contained in the Revolving Credit
Agreement.




     §8.3 Restrictions on Investments. The Borrower will not make or permit to exist or to
remain outstanding any Investment except Investments in:



          (a) marketable direct or guaranteed obligations of the United States of America that mature
within one (1) year from the date of purchase by the Borrower or any such Subsidiary;



65









 







          (b) marketable direct obligations of any of the following: Federal Home Loan Mortgage
Corporation, Student Loan Marketing Association, Federal Home Loan Banks, Federal National Mortgage
Association, Government National Mortgage Association, Bank for Cooperatives, Federal Intermediate
Credit Banks, Federal Financing Banks, Export-Import Bank of the United States, Federal Land Banks,
or any other agency or bank of the United States of America;




          (c) demand deposits, certificates of deposit, bankers acceptances and time deposits of any of
the Lenders or any United States banks having total assets in excess of $100,000,000;
provided, however, that the aggregate amount at any time so invested with any
single bank having total assets of less than $1,000,000,000 will not exceed $1,000,000;




          (d) securities commonly known as “commercial paper” issued by any Lender, or by a corporation
organized and existing under the laws of the United States of America or any State which at the
time of purchase are rated by Moody’s Investors Service, Inc. or by Standard & Poor’s Corporation
at not less than “P 1” if then rated by Moody’s Investors Service, Inc., and not less than “A 1”,
if then rated by Standard & Poor’s Corporation;




          (e) mortgage-backed securities guaranteed by the Government National Mortgage Association, the
Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by Moody’s Investors Service, Inc. or
by Standard & Poor’s Corporation at not less than “AA” if then rated by Moody’s Investors Service,
Inc. and not less than “AA” if then rated by Standard & Poor’s Corporation;




          (f) repurchase agreements having a term not greater than 180 days and fully secured by
securities described in the foregoing subsections (a), (b) or (e) with the Lenders,
banks described in the foregoing subsection (c) or financial institutions or other
corporations having total assets in excess of $500,000,000;




          (g) shares of so-called “money market funds” registered with the Securities and Exchange
Commission under the Investment Company Act of 1940 which maintain a level per-share value, invest
principally in investments described in the foregoing subsections (a) through (f) and have total
assets in excess of $50,000,000;




          (h) EPR Senior Property Loans (including property encumbered by EPR Senior First Mortgages)
and, subject to §9, options, easements, licenses, fee interests, partnership interests, interests
in limited liability companies and leasehold interests and similar interests in Real Estate,
including earnest money deposits relating thereto and transaction costs;




          (i) subject to the terms of this Agreement, Investments in Subsidiaries of Borrower existing
as of the date hereof, and Investments in new Subsidiaries of Borrower created after the date of
this Agreement;




          (j) deposits required by government agencies or public utilities;



66









 







     §8.4 Merger, Consolidation.



          (a) Borrower-SPE will not become a party to any dissolution, liquidation or disposition of all
or substantially all of Borrower-SPE’s assets or business, a merger, reorganization, consolidation
or other business combination or agree to effect any asset acquisition, stock acquisition or other
acquisition individually or in a series of transactions which may have a similar effect as any of
the foregoing, in each case without the prior written consent of the Required Lenders, except for
(i) the merger or consolidation of Borrower-SPE with another Subsidiary of EPR, and (ii) the merger
or consolidation of Borrower-SPE where Borrower-SPE is the sole surviving entity provided however
that any such merger or consolidation does not violate Borrower-SPE’s status as a Special Purpose
Entity.




          (b) EPR will not become a party to any dissolution, liquidation or disposition of all or
substantially all of EPR’s assets or business, a merger, reorganization, consolidation or other
business combination or agree to effect any asset acquisition, stock acquisition or other
acquisition individually or in a series of transactions which may have a similar effect as any of
the foregoing, in each case without the prior written consent of Required Lenders, except for (i)
the merger or consolidation of EPR with one of its Subsidiaries, provided that such Subsidiary is
other than Borrower-SPE; (ii) the merger or consolidation of EPR where EPR is the sole surviving
entity provided however that any such merger or consolidation does not violate EPR’s status as a
REIT; (iii) any acquisitions or investments; or (iv) any merger where EPR is the surviving entity
such that a majority of the seats of the Board of Directors of the newly constituted entity are
held by trustees of EPR serving as such prior to the time of such merger, or EPR otherwise
maintains a controlling interest therein, provided further that such exceptions do not otherwise
create any Default or Event of Default hereunder.




     §8.5 [Reserved].



     §8.6 [Reserved].



     §8.7 Distributions. EPR will not make any Distributions which would violate any of
the following covenants:



          (a) EPR will not pay any Distribution to its shareholders the amount of which, when added to
the amount of all other Distributions paid by it in the same fiscal quarter and the three
immediately preceding fiscal quarters, would exceed ninety percent (90%) of its FFO before
preferred distributions for such period; provided that EPR shall be permitted to pay an amount in
excess of such limit if necessary to permit EPR to maintain its REIT Status, as evidenced by a
certification of the chief financial officer of EPR containing calculations in reasonable detail
reasonably satisfactory in form and substance to the Agent. Notwithstanding the foregoing, EPR
may, subject to the limitations set forth in this Agreement (including specifically, but without
limitation, those contained in §8.7(b)) make Distributions (which shall not be included in the
ninety percent (90%) FFO test set forth in the preceding sentence) in order to enable EPR to
repurchase common shares of EPR and the right to redeem any then outstanding preferred shares in
accordance with their terms so long as (i) any such repurchase or redemption is made in EPR’s
prudent business judgment, (ii) no Event of Default shall have



67









 






occurred and be continuing on the
date of any such repurchase or redemption and (iii) no Event of Default shall occur as a result of
any such repurchase or redemption;




          (b) In the event that an Event of Default shall have occurred and be continuing, EPR shall not
make any Distributions other than the minimum Distributions required under the Code to maintain the
REIT Status of EPR, as evidenced by a certification of the chief financial officer of EPR
containing calculations in reasonable detail reasonably satisfactory in form and substance to the
Agent; provided, however, that EPR shall not be entitled to make any Distribution in connection
with the repurchase of common stock of Borrower at any time after an Event of Default shall have
occurred and be continuing; and




          (c) In the event that an Event of Default shall have occurred and be continuing and the
maturity of the Obligations has been accelerated, EPR shall not make any Distributions whatsoever,
either directly or indirectly.




     §8.8 Asset Sales. The Borrower will not sell, transfer or otherwise dispose of any
Borrowing Base Asset other than for fair market value, and as otherwise set forth herein.



     §8.9 Development Activity. The Borrower-SPE will not engage directly or indirectly in
the development of properties (other than Eligible Real Estate) without the prior written consent
of the Required Lenders in their sole discretion.



     §8.10 Restriction on Prepayment of Indebtedness. The Borrower will not, (a) prepay,
redeem, defease, purchase or otherwise retire the principal amount, in whole or in part, of any
Indebtedness other than the Obligations and the Hedge Obligations after the occurrence of any Event
of Default, or (b) modify any document evidencing any Indebtedness (other than the Obligations) to
accelerate the maturity date of such Indebtedness; provided, that this §8.10 shall not
prohibit (x) the prepayment of Indebtedness which is financed solely from the proceeds of a
new loan which would otherwise be permitted by the terms of §8.1; (y) the prepayment of
Indebtedness secured by Real Estate which is satisfied solely from the proceeds of a sale of the
Real Estate securing such Indebtedness and (z) prepayment or defeasances permitted under other
credit facilities.



     §8.11 Zoning and Contract Changes and Compliance. The Borrower shall not initiate or
consent to any zoning reclassification of any of its Borrowing Base Asset or seek any variance
under any existing zoning ordinance or use or permit the use of any Borrowing Base Asset in any
manner that could result in such use becoming a non-conforming use under any zoning ordinance or
any other applicable land use law, rule or regulation. The Borrower shall not initiate any change
in any laws, requirements of governmental authorities or obligations created by private contracts
and Leases which now or hereafter may materially adversely affect the ownership, occupancy, use or
operation of any Borrowing Base Asset.



     §8.12 Derivative Obligations. The Borrower-SPE shall not contract, create, incur,
assume or suffer to exist any Derivative Obligations without the prior written consent of the
Required Lenders in their sole discretion.



     §8.13 Subsidiary Guarantees and Pledges. Any Subsidiaries of EPR which as of the date
of this Agreement, do not guaranty any Indebtedness or have not granted any pledge of



68









 





stock or
other equity interests to secure any Indebtedness, are hereby prohibited from doing so, provided
however, that any such Subsidiary may provide a guaranty of the Obligations, and provided further
that any such Subsidiary may (i) incur Indebtedness with respect to acquisitions and/or
refinancings or financings by such Subsidiary of Real Estate directly or indirectly owned by such
Subsidiary; (ii) incur Indebtedness with respect to acquisitions, financings and/or refinancings by
one or more Subsidiaries in a related transaction, which is funded by a common lender, and is
secured by mortgages on the Real Estate directly or indirectly owned by each of such Subsidiaries,
and from which Indebtedness, each of such Subsidiaries receives a benefit; and (iii) pledge its
stock or other equity interests in a borrower or owner of Real Estate, to secure any Indebtedness
that is also secured by a mortgage by such borrower or owner, granted pursuant to this Section
8.13(i) or (ii) hereinabove.




     §8.14 Organizational Document Amendments. The Borrower shall not make any amendment
to its organizational documents, including without limitation, its operating agreement, by-laws,
articles or organization, articles or incorporation, or the like (other than any amendment to
increase its authorized shares of any class or series or to authorize a new class or series of
shares) without the consent of the Agent and the Required Lenders, but in no event shall Borrower
make any amendments to any organizational documents which may have a Material Adverse Effect on the
Borrowing Base Asset hereunder or Borrower’s ability to perform its Obligations hereunder.



     §8.15 Lease Amendments. With respect to any Lease on any Borrowing Base Asset:
Borrower-SPE shall not, without prior written consent of the Agent in its sole discretion, (i)
alter, amend or modify the terms, in any material manner, or (ii) cancel or terminate any such
Lease, or accept a surrender thereof, or (iii) otherwise change the terms of any such Lease in any
material manner, or (iv) take any other action with respect thereto which may have a Material
Adverse
Effect on any Borrowing Base Asset, including without limitation, a diminution in the value
thereof.



§9. FINANCIAL COVENANTS.




     At all times, the Borrower covenants and agrees that, so long as any Obligations, Loan or Note
is outstanding, they shall at all times be in compliance with the following financial covenants.
§9.3 through §9.7 and §9.10 through §9.11 shall be tested as of the end of each quarter, based upon
the results for that particular quarter then ended. §9.1 and §9.8 shall be tested as of the end of
each quarter, based upon the results for the trailing four quarters then ended and §9.1 shall also
be tested on and as of the date of each new Loan hereunder. Notwithstanding anything to the
contrary contained herein, §9.5 shall be tested as of the end of each quarter, based upon the
results for that particular quarter then ended, but shall incorporate adjustments for proceeds from
dividend reinvestment programs at the end of each calendar year, only, to the extent that such
proceeds do not exceed $1,000,000.00.



     §9.1 Borrowing Base. The outstanding principal balance of the Loan shall at all times
not be greater than and shall at all times be in compliance with the Borrowing Base.



     §9.2 [Reserved].



69









 





     §9.3 Total Debt to Total Asset Value. Calculated on a Consolidated basis with respect
to EPR, at any time the ratio of Total Debt to Total Asset Value shall not exceed 60%, provided
however, that it shall not be a Default or Event of Default hereunder in the event that said ratio
increases up to 65% as a result of an acquisition of any Real Estate, and provided further that:
(x) such increase shall not occur more than one time during the term of the Loan, and (y)
such increase shall not be sustained for more than two consecutive quarters.



     §9.4 Maximum Permitted Investments. Calculated on a Consolidated basis with respect to
EPR at any time, the ratio of (i) Investments in the aggregate sum of: (A) Investments in notes,
mortgages and unimproved real estate (including cost of land under development, but excluding EPR
Senior First Mortgages), (B) Investments in construction (total budgeted cost, excluding cost of
land), and (C) Investments in unconsolidated subsidiaries, to (ii) Total Asset Value, shall not at
any time exceed 25%.



     §9.5 Tangible Net Worth. The Consolidated Tangible Net Worth will not at any time be
less than the sum of (a) $548,000,000.00 plus (b) seventy-five percent (75%) of the
aggregate Net Equity Proceeds received by EPR and its Subsidiaries on a Consolidated basis
subsequent to September 30, 2005.



     §9.6 Interest Rate Protection. With regard to EPR, the ratio of Unhedged Variable
Rate Debt to Total Asset Value shall not exceed twenty-five percent (25%).



     §9.7 Minimum Interest Coverage Ratio. Calculated on a Consolidated basis with respect
to EPR, the Adjusted EBITDA to Interest Expense shall not be less than 2.00 to 1.00.



     §9.8 Maximum Distributions. The ratio of Distributions of FFO to FFO before preferred
dividends shall not exceed ninety percent (90%), measured on a rolling four-quarter basis, provided
however, as long as there is no Default or Event of Default and none of the Loans has been
accelerated, EPR shall not be prohibited from making Distributions that are necessary to maintain
REIT Status (measured on a rolling four quarter basis).



     § 9.9 [Reserved].



     § 9.10 Maximum Secured Debt:



          (a) Maximum Secured Debt to Total Asset Value. Calculated on a Consolidated basis
with respect to EPR, Indebtedness of Borrower secured by a Lien (“Secured Indebtedness”),
to Total Asset Value shall not exceed fifty percent (50%).




          (b) Maximum Secured Recourse Debt to Total Asset Value. Calculated on a Consolidated
basis with respect to EPR, Secured Indebtedness that is recourse to EPR, to Total Asset Value shall
not exceed 15%; additionally, the amount of each such loan shall not at the time of origination,
exceed 65% of the value of the property securing such loan. For purposes of calculating amounts
under this covenant, valuation of property shall be: (i) in the case of existing properties which
are Megaplex Movie Theatres and Entertainment-Related Retail Improvements (whether subject to a
Lease or an EPR Senior First Mortgage), based upon such property’s net operating income (calculated
in accordance with GAAP), capped at 9.00%, (ii) in the case of



70









 






properties that are not Megaplex
Movie Theatres or Entertainment-Related Retail Improvements (other than those under construction),
based upon such property’s net operating income (calculated in accordance with GAAP), capped at
10.00%, provided however, that in the event the capped value is greater than the purchase price of
the asset, then such calculation shall incorporate the purchase price, instead, and (iii) in the
case of properties under construction, based upon such property’s cost.




     § 9.11 Minimum Fixed Charge Coverage Ratio. Calculated on a Consolidated basis with
respect to EPR, at any time, the ratio of Adjusted EBTIDA to Fixed Charges shall not be less than
1.50 to 1.00.



§10. CLOSING CONDITIONS.



     The obligation of the Lenders to establish and make the Loan hereunder shall be subject to
the satisfaction of each of the following conditions precedent:



     §10.1 Loan Documents. Each of the Loan Documents shall have been duly executed and
delivered by the respective parties thereto and shall be in full force and effect. The Agent shall
have received a fully executed counterpart of each such document, except that each Lender shall
have received the fully executed original of its Note.



     §10.2 Certified Copies of Organizational Documents. The Agent shall have received
from the Borrower a copy, certified as of a recent date by the appropriate officer of each State in
which such Person is organized or in which it is required to be qualified as a foreign entity, as
applicable, and a duly authorized officer or similar representative of such Person, as
applicable, to be true and complete, of the corporate charter or other formation document of the
Borrower or its qualification to do business, as applicable, as in effect on such date of
certification.



     §10.3 Resolutions. All action on the part of the Borrower necessary for the valid
execution, delivery and performance by such Person of this Agreement and the other Loan Documents
to which such Person is or is to become a party shall have been duly and effectively taken, and
evidence thereof reasonably satisfactory to the Agent shall have been provided to the Agent.



     §10.4 Incumbency Certificate; Authorized Signers. The Agent shall have received from
Borrower an incumbency certificate, dated as of the Closing Date, signed by a duly authorized
officer of such Person and giving the name and bearing a specimen signature of each individual who
shall be authorized to sign, in the name and on behalf of such Person, each of the Loan Documents
to which such Person is or is to become a party.



     §10.5 Opinion of Counsel. The Agent shall have received such opinions addressed to
the Lenders and the Agent and dated as of the Closing Date from counsel to the Borrower addressing
such matters as reasonably requested by Agent in form and substance reasonably satisfactory to the
Agent, including an enforceability and due authority opinion with respect to Borrower.



     §10.6 Payment of Fees. The Borrower shall have paid to the Agent the fees payable
pursuant to §4.2.



71









 





     §10.7 Insurance. The Agent shall have received duplicate originals or copies of all
certificates of insurance required by this Agreement.



     §10.8 Performance; No Default. Borrower shall have performed and complied in all
material respects with all terms and conditions herein required to be performed or complied with by
it on or prior to the Closing Date, and on the Closing Date there shall exist no Default or Event
of Default.



     §10.9 Representations and Warranties. With the exception of any Third Party
Information, the representations and warranties made by the Borrower in the Loan Documents or
otherwise made by or on behalf of the Borrower and its Subsidiaries in connection therewith or
after the date thereof shall have been true and correct in all material respects when made and
shall also be true and correct in all material respects on the Closing Date.



     §10.10 Proceedings and Documents. All proceedings in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be reasonably satisfactory to the
Agent and the Agent’s counsel in form and substance, and the Agent shall have received all
information and such counterpart originals or certified copies of such documents and such other
certificates, opinions, assurances, consents, approvals or documents as the Agent and the Agent’s
counsel may reasonably require.



     §10.11 Eligible Real Estate Qualification Documents. The Eligible Real Estate
Qualification Documents for each Borrowing Base Asset included in the Borrowing Base as of the
Closing Date shall have been delivered to the Agent at the Borrower’s expense and shall be in form
and substance satisfactory to the Agent.



     §10.12 Compliance Certificate. The Agent shall have received a Compliance Certificate
dated as of the date of the Closing Date demonstrating compliance with each of the covenants
calculated therein as of the most recent fiscal quarter for which Borrower has provided financial
statements under §6.4 adjusted in the best good faith estimate of Borrower as of the Closing Date.



     §10.13 Stockholder and Partner Consents. The Agent shall have received evidence
reasonably satisfactory to the Agent that all necessary stockholder, partner, member or other
consents required in connection with the consummation of the transactions contemplated by this
Agreement and the other Loan Documents have been obtained.



     §10.14 Other. The Agent shall have reviewed such other documents, instruments,
certificates, opinions, assurances, consents and approvals as the Agent or the Agent’s counsel may
reasonably have requested.





§11. [RESERVED].



72









 







§12. EVENTS OF DEFAULT; ACCELERATION; ETC.




     §12.1 Events of Default and Acceleration. If any of the following events (“Events
of Default”) shall occur:



          (a) any Event of Default under the Revolving Credit Agreement (as such term is defined
therein);




          (b) the Borrower shall fail to pay any principal of the Loan when the same shall become due
and payable, whether at the stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment;




          (c) the Borrower shall fail to pay any interest on the Loans, or any other sums due hereunder
or under any of the other Loan Documents (excluding payments due under §12.1(b) above) within five
(5) days after the same shall become due and payable, on any fixed date for payment or otherwise,
provided however that such grace period shall not be applicable where any interest payment is due
at the stated date of maturity or any accelerated date of maturity;




          (d) the Borrower shall fail to comply with the covenants contained in §7.5 (a) or §9.1 and,
with respect to §9.1, such failure shall continue to exist after written notice thereof shall have
been given to the Borrower by the Agent and the cure period provided in §12.2 shall have ended;




          (e) the Borrower shall fail to comply with any covenant contained in §9.3 through §9.11 and
such failure shall continue for thirty (30) days after written notice thereof shall have been given
to the Borrower by the Agent;




          (f) the Borrower shall fail to perform any other term, covenant or agreement contained herein
or in any of the other Loan Documents which they are required to perform (other than those
specified in the other subclauses of this §12 or in the other Loan Documents) and shall fail to
remedy such failure within thirty (30) days after written notice thereof shall have been given to
the Borrower by the Agent;




          (g) any representation or warranty made by or on behalf of the Borrower or any of its
Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial
statement, request for a Loan or in any other document or instrument delivered pursuant to or in
connection with this Agreement, any advance of the Loan, or any of the other Loan Documents, other
than constituting or based upon Third Party Information on which Borrower or any of its
Subsidiaries relied and had no knowledge or reason to believe was untrue in any material respect,
shall prove to have been false in any material respect upon the date when made or deemed to have
been made or repeated; notwithstanding anything to the contrary contained in this provision, the
Borrower shall have a period of thirty (30) days to cure any unintentional inaccuracy or
misrepresentation;




          (h) any of the Borrower or any of its Subsidiaries (i) except as otherwise provided in
§12.1(a), shall fail to pay at maturity, or within any applicable period of grace, any obligation
for borrowed money or credit received or other Indebtedness, or (ii) except as otherwise provided
in §12.1(a), shall fail to observe or perform any term, covenant or agreement contained



73









 






in any
agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit
received or other Indebtedness for such period of time as would permit (assuming the giving of
appropriate notice if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof; provided that the events described in this
§12.1(h) shall not constitute an Event of Default unless such failure to perform, together with
other failures to perform as described in this §12.1(h), involve singly or in the aggregate
obligations for borrowed money or credit received totaling in excess of $5,000,000.00;




          (i) any of the Borrower or any of its Subsidiaries, (i) shall make an assignment for the
benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its
debts as they mature or become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver for it or any substantial part of its assets, (ii) shall
commence any case or other proceeding relating to it under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in
furtherance of any of the foregoing;




          (j) a petition or application shall be filed for the appointment of a trustee or other
custodian, liquidator or receiver of any of the Borrower or any of its Subsidiaries or any
substantial part of the assets of any thereof, or a case or other proceeding shall be commenced
against any such Person under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, and any such Person shall indicate its written approval thereof, written
consent thereto or written acquiescence therein or such petition, application, case or proceeding
shall not have been dismissed within sixty (60) days following the filing or commencement thereof;




          (k) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for
any of the Borrower or any of its Subsidiaries or adjudicating any such Person, bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or a decree or order for
relief is entered in respect of any such Person in an involuntary case under federal bankruptcy
laws as now or hereafter constituted;




          (l) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty
(60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against
any of the Borrower or any of its Subsidiaries that, either individually or in the aggregate,
exceed $1,000,000;




          (m) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise
than in accordance with the terms thereof or the express prior written agreement, consent or
approval of the Lenders, or any action at law, suit in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any of the
Borrower, or any court or any other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the
effect that any one or more of the Loan Documents is illegal, invalid or unenforceable in
accordance with the terms thereof;



74









 







          (n) any dissolution, termination, liquidation of all or substantially all of the assets,
merger or consolidation of any of the Borrower shall occur unless Borrower is the surviving entity,
or any sale, transfer or other disposition of all or substantially all of the assets, measured
either by value or quantity, of any of the Borrower shall occur, in each case other than as
permitted under the terms of this Agreement or the other Loan Documents;




          (o) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred
and the Required Lenders shall have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of any of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$2,000,000 and such event in the circumstances occurring reasonably could constitute grounds for
the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan;
or a trustee shall have been appointed by the United States District Court to administer such Plan;
or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;




          (p) EPR shall cease at any time to qualify as a real estate investment trust under the Code
and/or Borrower-SPE shall fail to be a Special Purpose Entity;




          (q) the Borrower-SPE, EPR or any of its Subsidiaries or any Person so connected with any of
them shall be indicted for a federal crime, a punishment for which could include the forfeiture of
(i) any assets of Borrower-SPE, EPR or any of its Subsidiaries which in the good faith judgment of
the Required Lenders could have a Material Adverse Effect, or (ii) the Borrowing Base Assets;




          (r) any Change in Control shall occur with respect to any Borrower; or




          (s) an event of default, however defined, under any of the other Loan Documents shall occur;



then, and in any such event, the Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower terminate the Loan and/or declare all amounts owing with respect
to this Agreement, the Notes and the other Loan Documents (including prepayment penalties or yield
maintenance fees) to be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; provided that in the event of any Event of Default specified in
§12.1(i), §12.1(j) or §12.1(k), all such amounts shall become immediately due and payable
automatically and without any requirement of presentment, demand, protest or other notice of any
kind from any of the Lenders or the Agent.




     Notwithstanding anything to the contrary contained herein, the occurrence of any one of the
aforementioned terms or conditions in this §12.1, shall be, prior to the giving of any applicable
notice or grace period, and until the same is cured as permitted by this Agreement, a
“Default.” A “Default” hereunder shall also include, without limitation, the occurrence of
any “Default” as defined in the Revolving Credit Agreement.



75









 





     §12.2 Limitation of Cure Periods.



     (a) In the event that there shall occur any Default under §12.1(d), then within five (5)
Business Days after receipt of notice of such Default from the Agent or the Required Lenders, the
Borrower may elect to cure such Default by providing additional Borrowing Base Asset consisting of
Potential Borrowing Base Asset, and/or to reduce the outstanding Loans to it, in which event such
actions shall be completed within such five (5) Business Day period (or within thirty (30) days
following the expiration of the initial five (5) Business Day period in the event that the Borrower
intends to provide additional Borrowing Base Asset). The Borrower’s notice of its election
pursuant to the preceding sentence shall be delivered to the Agent within the period of five (5)
Business Days provided above, and if not so delivered Borrower’s cure period shall immediately
terminate and such Default shall become an Event of Default. In the event that Borrower elects to
add additional Borrowing Base Asset and fails within the time provided herein, the cure period
shall terminate and such Default immediately shall constitute an Event of Default. In the event
that the Borrower shall elect under §12.2(a) to provide additional Borrowing Base Asset consisting
of Potential Borrowing Base Asset, the Real Estate to be added to the Borrowing Base Asset shall be
Eligible Real Estate and on or prior to the expiration of the thirty (30) day period referred to
above each of the Eligible Real Estate Qualification Documents shall have been completed at the
Borrower’s expense and provided to the Agent for the benefit of
the Lenders and all other conditions to the acceptance of such Real Estate as a Borrowing Base
Asset shall have been satisfied.



     (b) In the event that there shall occur any Default that affects only certain Borrowing Base
Asset or the owner(s) thereof, or if any Default shall occur in any covenant contained in § 9.3
through § 9.11, then within five (5) Business Days after receipt of notice of such Default from the
Agent or the Required Lenders, the Borrower may elect to cure such Default by electing to remove
such Borrowing Base Asset from the Borrowing Base and reduce the outstanding Loans or by
substituting for such Borrowing Base Asset additional Borrowing Base Asset consisting of Potential
Borrowing Base Asset for the Borrowing Base Asset to which such Default relates (provided
that the value of such Borrowing Base Asset Replacement is such that after acceptance thereof,
the Borrower is in compliance with the Borrowing Base requirements), in which event such actions
shall be completed within five (5) Business Days following the expiration of the initial five (5)
Business Day period (or within thirty (30) days following the expiration of the initial five (5)
Business Day period in the event that the Borrower intends to provide additional or substitute
Borrowing Base Asset). The Borrower’s notice of its election pursuant to the preceding sentence
shall be delivered to the Agent within the period of five (5) Business Days provided above, and if
not so delivered Borrower’s cure period shall immediately terminate and such Default shall become
an Event of Default. In the event that Borrower elects to add additional or substitute Borrowing
Base Asset and fails within the time provided herein, the cure period shall terminate and such
Default immediately shall constitute an Event of Default. In the event that the Borrower shall
elect to cure any Default in any covenant contained in §9.3 through §9.11, by providing additional
Borrowing Base Asset consisting of Potential Borrowing Base Asset, the Real Estate to be added to
the Borrowing Base Asset shall be Eligible Real Estate and on or prior to the expiration of the
thirty (30) day period referred to above, each of the Eligible Real Estate Qualification Documents
shall have been completed at the Borrower’s expense and provided to the Agent for the benefit of
the Lenders and all other conditions in this



76









 




Agreement to the acceptance of such Real Estate as a
Borrowing Base Asset shall have been satisfied.




     §12.3 [Reserved].



     §12.4 Remedies. In case any one or more Events of Default shall have occurred and be
continuing, and whether or not the Lenders shall have accelerated the maturity of the Loans
pursuant to §12.1, the Agent on behalf of the Lenders may, with the consent of the Required Lenders
but not otherwise, proceed to protect and enforce their rights and remedies under this Agreement,
the Notes and/or any of the other Loan Documents by suit in equity, action at law or other
appropriate proceeding, including to the full extent permitted by applicable law the specific
performance of any covenant or agreement contained in this Agreement and the other Loan Documents,
the obtaining of the ex parte appointment of a receiver, and, if any amount shall
have become due, by declaration or otherwise, the enforcement of the payment thereof. No remedy
herein conferred upon the Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute or any other
provision of law. If Borrower fails to perform any agreement or covenant contained in this
Agreement or any of the other Loan Documents beyond any applicable period for notice
and cure, the Agent may itself perform, or cause to be performed, any agreement or covenant of such
Person contained in this Agreement or any of the other Loan Documents which such Person shall fail
to perform, and the out-of-pocket costs of such performance, together with any reasonable expenses,
including reasonable attorneys’ fees actually incurred (including attorneys’ fees incurred in any
appeal) by the Agent in connection therewith, shall be payable by Borrower upon demand and shall
constitute a part of the Obligations and shall if not paid within five (5) days after demand bear
interest at the rate for overdue amounts as set forth in this Agreement. In the event that all or
any portion of the Obligations is collected by or through an attorney-at-law, the Borrower shall
pay all costs of collection including, but not limited to, reasonable attorney’s fees.



     §12.5 Distribution of Proceeds. In the event that, following the occurrence and
during the continuance of any Event of Default, any monies are received in connection with the
realization of any of the Borrowers’ assets, such monies shall be distributed for application as
follows:



     (a) First, to the payment of, or (as the case may be) the reimbursement of the Agent for or in
respect of, all reasonable costs, expenses, disbursements and losses which shall have been paid,
incurred or sustained by the Agent in connection with the collection of such monies by the Agent,
for the exercise, protection or enforcement by the Agent of all or any of the rights, remedies,
powers and privileges of the Agent or the Lenders under this Agreement or any of the other Loan
Documents or in support of any provision of adequate indemnity to the Agent against any taxes or
liens which by law shall have, or may have, priority over the rights of the Agent or the Lenders to
such monies;



     (b) Second, to all other Obligations (including any interest, expenses or other obligations
incurred after the commencement of a bankruptcy) in such order or preference as the Required
Lenders shall determine; provided, that (i) distributions in respect of such other



77









 




Obligations shall include, on a pari passu basis, the Agent’s fee payable pursuant
to §4.3; (ii) Obligations owing to the Lenders with respect to each type of Obligation such as
interest, principal, fees and expenses shall be made among the Lenders pro rata; and
provided, further that the Required Lenders may in their discretion make proper allowance
to take into account any Obligations not then due and payable; and




     (c) Third, to termination payments due with respect to any Hedge Obligations; and



     (d) Fourth, the excess, if any, shall be returned to the Borrower or to such other Persons as
are entitled thereto.



§13. SETOFF.




     §13.1 Set-Off. During the continuance of any uncured Event of Default, any deposits
(general or specific, time or demand, provisional or final, regardless of currency, maturity, or
the branch where such deposits are held) or other sums credited by or due from any Lender to the
Borrower and any securities or other property of the Borrower in the possession of such Lender may
be applied to or set off against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lender that if
such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of
setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such
Lender on a pro rata basis with all other Lenders consistent with the Commitment Percentage and
such Lender shall make such disposition and arrangements with the other Lenders either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in
each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated
by this Agreement. ANY AND ALL RIGHTS TO REQUIRE LENDER TO EXERCISE ITS RIGHTS AND REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES OR MAY SECURE THE LOAN, PRIOR TO EXERCISING ITS RIGHT
OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.



     §13.2 Additional Rights. The rights of Lenders and each affiliate of Lenders under
this Article 13 are in addition to and not in limitation of, other rights and remedies,
including other rights of set-off which Lenders may have upon an Event of Default. 



78









 





§14. THE AGENT.




     §14.1 Authorization. The Agent is authorized to take such action on behalf of each of
the Lenders and to exercise all such powers as are hereunder and under any of the other Loan
Documents and any related documents delegated to the Agent, together with such powers as are
reasonably incident thereto, provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the Agent. The obligations of
the Agent hereunder are primarily administrative in nature, and nothing contained in this Agreement
or any of the other Loan Documents shall be construed to constitute the Agent as a trustee for any
Lender or to create an agency or fiduciary relationship. The Borrower and any other Person shall
be entitled to conclusively rely on a statement from the Agent that it has the authority to act for
and bind the Lenders pursuant to this Agreement and the other Loan Documents.



     §14.2 Employees and Agents. The Agent may exercise its powers and execute its duties
by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be paid by the Borrower.



     §14.3 No Liability. Neither the Agent nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor any agent, or
employee thereof, shall be liable to any of the Lenders for any waiver, consent or approval given
or any action taken, or omitted to be taken, in good faith by it or them hereunder or under any of
the other Loan Documents, or in connection herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment whatsoever, except that the Agent or such
other Person, as the case may be, shall be liable for losses due to its willful misconduct or gross
negligence.



     §14.4 No Representations. The Agent shall not be responsible for the execution or
validity or enforceability of this Agreement, the Notes, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral security for the Notes,
or for the value of any such collateral security or for the validity, enforceability or
collectability of any amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the Borrower or any of its
Subsidiaries, or be bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any of the other Loan Documents. The Agent
shall not be bound to ascertain whether any notice, consent, waiver or request delivered to it by
the Borrower or any holder of any of the Notes shall have been duly authorized or is true, accurate
and complete. The Agent has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Lenders, with respect to the
creditworthiness or financial condition of the Borrower or any of its Subsidiaries, or the value of
the Borrowing Base Asset or any other assets of the Borrower. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it will, independently



79









 




and without reliance upon the Agent or any other Lender, based upon such information and documents as
it deems appropriate at the time, continue to make its own credit analysis and decisions in taking
or not taking action under this Agreement and the other Loan Documents.




     §14.5 Payments.



     (a) A payment by the Borrower to the Agent hereunder or under any of the other Loan Documents
for the account of any Lender shall constitute a payment to such Lender. The Agent agrees to
distribute to each Lender not later than one Business Day after the Agent’s receipt of good funds,
determined in accordance with the Agent’s customary practices, such Lender’s pro
rata share of payments received by the Agent for the account of the Lenders except as
otherwise expressly provided herein or in any of the other Loan Documents. In the event that the
Agent fails to distribute such amounts within one Business Day as provided above, the Agent shall
pay interest on such amount at a rate per annum equal to the Federal Funds Effective Rate from time
to time in effect.



     (b) If in the opinion of the Agent the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of the other Loan Documents might involve it in
liability, it may refrain from making distribution until its right to make distribution shall have
been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the Agent is to be repaid, each Person to whom
any such distribution shall have been made shall either repay to the Agent its proportionate share
of the amount so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. In the event that the Agent shall refrain from
making any distribution of any amount received by it as provided in this
§14.5(b), the Agent shall endeavor to hold such amounts in an interest bearing account and at such
time as such amounts may be distributed to the Lenders, the Agent shall distribute to each Lender,
based on their respective Commitment Percentages, its pro rata share of the interest or other
earnings from such deposited amount.



     (c) Notwithstanding anything to the contrary contained in this Agreement or any of the other
Loan Documents, any Lender that fails (i) to make available to the Agent, the amount of its Loan
Commitment or (ii) to comply with the provisions of §13 with respect to making dispositions and
arrangements with the other Lenders, where such Lender’s share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Lenders, in each case as, when and to the full extent required by the
provisions of this Agreement, shall be deemed delinquent (a “Delinquent Lender”) and shall
be deemed a Delinquent Lender until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from the Borrower, whether
on account of outstanding Loans, interest, fees or otherwise, to the remaining nondelinquent
Lenders for application to, and reduction of, their respective pro rata shares of
the outstanding Loan. The Delinquent Lender hereby authorizes the Agent to distribute such
payments to the nondelinquent Lenders in proportion to their respective pro rata
shares of the outstanding Loan. A Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to all outstanding
Loans of the nondelinquent Lenders or as a result of other payments by the Delinquent Lenders to
the nondelinquent Lenders, the Lenders’ respective pro rata shares of the
outstanding Loan have



80









 




returned to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.




     §14.6 Holders of Notes. Subject to the terms of §18, the Agent may deem and treat the
payee of any Note as the absolute owner or purchaser thereof for all purposes hereof until it shall
have been furnished in writing with a different name by such payee or by a subsequent holder,
assignee or transferee.



     §14.7 Indemnity. The Lenders ratably agree hereby to indemnify and hold harmless the
Agent from and against any and all claims, actions and suits (whether groundless or otherwise),
losses, damages, costs, expenses (including any expenses for which the Agent has not been
reimbursed by the Borrower as required by §15), and liabilities of every nature and character
arising out of or related to this Agreement, the Notes, or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Agent’s actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused by the Agent’s
willful misconduct or gross negligence.



     §14.8 Agent as Lender. In its individual capacity, KeyBank shall have the same
obligations and the same rights, powers and privileges in respect to its Commitment and the Loans
made by it, and as the holder of any of the Notes as it would have were it not also the Agent.



     §14.9 Resignation; Removal. The Agent may resign at any time by giving 60 days’ prior
written notice thereof to the Lenders and the Borrower. The Required Lenders may remove
the Agent from its capacity as Agent for failure to perform its material obligations under this
Agreement provided that the Required Lenders shall have given prior written notice to the Agent of
its failure to perform any of its material obligations under this Agreement and such failure shall
not have been cured within thirty (30) calendar days after receipt of notice of such failure (or
such failure cannot reasonably be cured within such thirty (30) day period, then within such longer
period of time as may be necessary to complete such cure so long as Agent commences such cure
within such thirty (30) day period and thereafter diligently pursues such cure to completion).
Upon any such resignation or removal, the Required Lenders shall have the right to appoint as a
successor Agent any Lender or any financial institution whose senior debt obligations are rated not
less than “A2” or its equivalent by Moody’s or not less than “A2” or its equivalent by S&P and
which has a net worth of not less than $500,000,000. Unless a Default or Event of Default shall
have occurred and be continuing, such successor Agent shall be reasonably acceptable to the
Borrower. If no successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent’s giving of notice of
resignation or its removal, then the retiring or removed Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be any Lender or any financial institution whose senior debt
obligations are rated not less than “A2” or its equivalent by Moody’s or not less than “A” or its
equivalent by S&P and which has a net worth of not less than $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring or
removed Agent, and the retiring or removed Agent shall be discharged from its duties and
obligations hereunder as Agent thereafter arising. After any retiring or removed Agent’s
resignation or removal, the provisions of this Agreement



81









 




and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent. Notwithstanding anything herein to the contrary, in the event that
Agent shall at any time hold a Commitment less than $10,000,000.00, then such Agent shall promptly
provide written notice thereof to the Lenders and the Required Lenders shall have the right, to be
exercised within fifteen (15) days of delivery of such notice by such Agent, to elect to remove
such Agent as Agent and replace such Agent as Agent under the Loan Documents, subject to the terms
of this §14.9.




     §14.10 Duties in the Case of Enforcement. In case one or more Events of Default have
occurred and shall be continuing, and whether or not acceleration of the Obligations shall have
occurred, the Agent shall, if (a) so requested by the Required Lenders and (b) the Lenders have
provided to the Agent such additional indemnities and assurances against expenses and liabilities
as the Agent may reasonably request, proceed to enforce and exercise all or any such other legal
and equitable and other rights or remedies as it may have in respect of the Borrowers’ assets. The
Required Lenders may direct, subject to the terms of any intercreditor agreement among the Agent
and the Lenders, the Agent in writing as to the method and the extent of any such sale or other
disposition of said assets, the Lenders hereby agreeing to indemnify and hold the Agent harmless
from all liabilities incurred in respect of all actions taken or omitted in accordance with such
directions, provided that the Agent need not comply with any such direction to the extent that the
Agent reasonably believes that the Agent’s compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.



     §14.11 Request for Agent Action. Agent and the Lenders acknowledge that in the
ordinary course of business of the Borrower, (a) a Borrowing Base Asset may be subject to a Taking,
(b) Borrower may desire to enter into easements or other agreements affecting the Borrowing Base
Assets, or take other actions or enter into other agreements in the ordinary course of business
which similarly require the consent, approval or agreement of the Agent. In connection with the
foregoing, the Lenders hereby expressly authorize the Agent to (x) execute releases of any liens in
connection with any Taking, (y) execute any required consents or subordinations in form and
substance satisfactory to Agent, consistent with the provisions of the applicable Leases in
connection with any easements or agreements affecting the Borrowing Base Asset, or (z) execute any
other required consents, approvals, or other agreements in form and substance satisfactory to the
Agent in connection with such other actions or agreements as may be necessary in the ordinary
course of Borrower’s business.



     §14.12 [Reserved].



     §14.13 Replacement of Holdout Lender. If any action to be taken by the Lenders
hereunder requires the unanimous consent, authorization, or agreement, of all Lenders, and a Lender
(“Holdout Lender”) fails to give its consent, authorization or agreement, then Agent, upon
at least 5 Business Days prior irrevocable notice to the Holdout Lender, may, or upon Borrower’s
request, and otherwise in compliance with the terms of this §14.13, permanently replace the Holdout
Lender with one or more substitute lenders (each, a “Replacement Lender”), and the Holdout
Lender shall have no right to refuse to be replaced hereunder. Any notice hereunder to replace the
Holdout Lender shall specify an effective date for such replacement, which date shall not be later
than 15 Business Days after the date such notice is given.




82











 





     Prior to the effective date of such replacement, the Holdout Lender and each Replacement
Lender shall execute and deliver an Assignment and Acceptance Agreement, subject only to the
Holdout Lender being repaid its share of the outstanding obligations without any premium or penalty
of any kind whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver any such
Assignment and Acceptance Agreement prior to the effective date of such replacement, the Holdout
Lender shall be deemed to have executed and delivered such Assignment and Acceptance Agreement. In
the event that no new Lender is located to purchase the Holdout Lender’s Commitment, then Borrower
shall have the option after receipt of written notice from Agent to Borrower that no new Lender has
been obtained, to terminate the Commitment of the Holdout Lender. Borrower agrees to pay all
reasonably incurred costs or expenses incurred by any Lender in connection with this §14.13
including without limitation, all principal and accrued and unpaid interest or fees, including any
accrued and unbilled LIBOR breakage fees.



§15. EXPENSES.




     The Borrower agrees to pay (a) the reasonable costs of producing and reproducing this
Agreement, the other Loan Documents and the other agreements and instruments mentioned herein, (b)
any taxes (including any interest and penalties in respect thereto) payable by the Agent or any of
the Lenders (other than taxes based upon the Agent’s or any Lender’s gross or net income in the
ordinary course), (c) all title insurance premiums, engineer’s fees, environmental reviews and the
reasonable fees, expenses and disbursements of the counsel to the Agent and any local counsel to
the Agent incurred in connection with the preparation, administration, syndication or
interpretation of the Loan Documents and other instruments mentioned herein (excluding, however,
the preparation of agreements evidencing participations granted under §18.4), and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) all other reasonable out of
pocket fees, expenses and disbursements of the Agent actually incurred by the Agent in connection
with the preparation or interpretation of the Loan Documents and other instruments mentioned
herein, the addition or substitution of additional Borrowing Base Assets, the review of leases, the
syndication of the Commitments pursuant to §18 (without duplication of those items addressed in
subparagraph (c), above), (e) all reasonable out-of-pocket expenses (including reasonable
attorneys’ fees and costs, and the fees and costs of appraisers, engineers, investment bankers or
other experts retained by any Lender or the Agent) actually incurred by any Lender or the Agent in
connection with (i) the enforcement of or preservation of rights under any of the Loan Documents
against the Borrower or the administration thereof after the occurrence of a Default or Event of
Default and (ii) any litigation, proceeding or dispute whether arising hereunder or otherwise, in
any way related to the Agent’s or any of the Lenders’ relationship with the Borrower , unless
brought by Borrower (f) all reasonable fees, expenses and disbursements of the Agent incurred in
connection with UCC searches, title rundowns or title searches and (g) all reasonable fees,
expenses and disbursements (including reasonable attorneys’ fees and costs) which may be incurred
by KeyBank in connection with the execution and delivery of this Agreement and the other Loan
Documents (without duplication of any of the items listed above). The covenants of this §15 shall
survive the repayment of the Loans and the termination of the obligations of the Lenders hereunder.



83









 





§16 INDEMNIFICATION.




     §16.1 Lender Indemnification. The Borrower agrees to indemnify and hold harmless the
Agent and the Lenders and their respective directors, officers, employees, agents and each Person
who controls the Agent or any Lender from and against any and all claims, actions and suits,
whether groundless or otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of or relating to this Agreement or any of the
other Loan Documents or the transactions contemplated hereby and thereby including, without
limitation, (a) any and all claims for brokerage, leasing, finders or similar fees which may be
made relating to the Borrowing Base Assets or the Loans, (b) any condition of the Borrowing Base
Assets, (c) any actual or proposed use by the Borrower of the proceeds of the Loan (d) any actual
or alleged infringement of any patent, copyright, trademark, service mark or similar right of the
Borrower, or any of its Subsidiaries comprised in the Borrowing Base Assets, (e) the Borrower
entering into or performing this Agreement or any of the other Loan Documents, (f) any actual or
alleged violation of any law, ordinance, code, order, rule, regulation, approval, consent, permit
or license relating to the Borrowing Base Assets, or (g) with respect to the Borrower and its
Subsidiaries and their respective properties and assets, the violation of any Environmental Law,
the Release or threatened Release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances (including, but not
limited to, claims with respect to wrongful death, personal injury, nuisance or damage to
property), in each case including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation, litigation or other proceeding;
provided, however, that the Borrower shall not be obligated under this §16 to
indemnify any Person for liabilities arising from such Person’s own gross negligence or willful
misconduct. In litigation, or the preparation therefor, the Lenders and the Agent shall be
entitled to select a single law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses of such counsel.
If, and to the extent that the obligations of the Borrower under this §16 are unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the payment in satisfaction
of such obligations which is permissible under applicable law. The provisions of this §16 shall
survive the repayment of the Loan and the termination of the obligations of the Lenders hereunder.



     §16.2 Borrower Must Notify. Agent and each Lender shall not be in default under this
Agreement or under any other Loan Document, unless a written notice specifically setting forth the
claim of Borrower shall have been given to Agent and each Lender within thirty (30) days after the
Borrower first had actual knowledge or actual notice of the occurrence of the event which Borrower
alleges gave rise to such claim and Agent and each Lender does not remedy or cure the default, if
any there be, with reasonable promptness thereafter.



     §16.3 Remedies. If it is determined by the final order of a court of competent
jurisdiction, which is not subject to further appeal, that Agent and/or Lender has breached any of
its obligations under the Loan Documents and has not remedied or cured the same with reasonable
promptness following notice thereof, Agent and/or Lender’s responsibilities shall be limited to:
(i) where the breach consists of the failure to grant consent or give approval in violation of the
terms and requirements of a Loan Document, the obligation to grant such consent or give such
approval and to pay Borrower’s reasonable costs and expenses including, without



84









 




limitation, reasonable attorneys fees and disbursements in connection with such court
proceedings; and (ii) the case of any such failure to grant such consent or give such approval, or
in the case of any other such default by Agent and/or Lender, where it is also so determined that
Agent and/or Lender acted in bad faith, or that Agent and/or Lender’s default constituted gross
negligence or willful misconduct, the payment of any actual, direct, compensatory damages sustained
by Borrower as a result thereof plus Borrower’s reasonable costs and expenses, including without
limitation, reasonable attorney’s fees and disbursements in connection with such court proceedings.




     §16.4 Limitations. In no event, however, shall Agent and/or Lender be liable to
Borrower or anyone else for other damages such as, but not limited to, indirect, speculative or
punitive damages whatever nature of the breach by Agent and/or Lender of its obligations under this
Agreement or under any of the other Loan Documents. In no event shall Lender be liable to Borrower
or anyone else unless a written notice specifically setting forth the claim of Borrower shall have
been given to lender within the time period specified above.



     §16.5 Obligations Absolute. Except to the extent prohibited by applicable law which
cannot be waived, the obligations of Borrower under the Loan Documents shall be absolute,
unconditional and irrevocable and shall be paid strictly in accordance with the terms of the Loan
Documents under all circumstances whatsoever, including without limitation, the existence of any
claim, set off, defense or other right which Borrower may have at any time against Agent and/or
Lender whether in connection with the Loan or any unrelated transaction.



§17. SURVIVAL OF COVENANTS, ETC.




     All covenants, agreements, representations and warranties made herein, in the Notes, in any of
the other Loan Documents or in any documents or other papers delivered by or on behalf of the
Borrower or any of its Subsidiaries pursuant hereto or thereto shall be deemed to have been relied
upon by the Lenders and the Agent, notwithstanding any investigation heretofore or hereafter made
by any of them, and shall survive the making by the Lenders of the Loan, as herein contemplated,
and shall continue in full force and effect so long as any amount due under this Agreement or the
Notes or any of the other Loan Documents remains outstanding. The indemnification obligations of
the Borrower provided herein and in the other Loan Documents shall survive the full repayment of
amounts due and the termination of the obligations of the Lenders hereunder and thereunder to the
extent provided herein and therein. All statements contained in any certificate delivered to any
Lender or the Agent at any time by or on behalf of the Borrower or any of its Subsidiaries pursuant
hereto or in connection with the transactions contemplated hereby shall constitute representations
and warranties by such Person hereunder.



§18. ASSIGNMENT AND PARTICIPATION.




     §18.1 Conditions to Assignment by Lenders. Except as provided herein, each Lender may
assign to one or more banks or other entities all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its Commitment Percentage and
Commitment and the same portion of the Loan at the time owing to it and the Notes held by it);
provided that: (a) the Agent and, so long as no Event of Default exists hereunder, the Borrower
shall have each given its prior written consent to such assignment, which consent shall not be



85









 




unreasonably withheld or delayed (provided that (i) such consent shall not be required for any
assignment to another Lender who was not admitted pursuant to a waiver of clause (e) below, to a
lender which is and remains under common control with the assigning Lender or to a wholly-owned
Subsidiary of such Lender, provided that such assignee shall remain a wholly-owned Subsidiary of
such Lender, and (ii) the consent of Agent shall not be required if an Event of Default exists and
is continuing so long as the assignee is an institutional lender), (b) each such assignment shall
be of a constant, and not a varying, percentage of all the assigning Lender’s rights and
obligations under this Agreement, (c) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined) an Assignment and Acceptance
Agreement in the form of Exhibit L annexed hereto, together with any Notes subject to such
assignment, (d) in no event shall any voting, consent or approval rights of a Lender be assigned to
any Person controlling, controlled by or under common control with, or which is not otherwise free
from influence or control by, the Borrower which rights shall instead be allocated pro
rata among the other remaining Lenders, (e) if such assignee is to become a Lender, such
assignee shall have a net worth as of the date of such assignment of not less than $200,000,000,
unless waived by the Agent and the Borrower, (f) such assignee shall acquire an interest in the
Loan of not less than $3,000,000 (or if less, the remaining portion of the Loan held by the
assignor), unless waived by the Agent, and so long as no Event of Default exists hereunder, the
Borrower, and (g) such assignee shall be subject to the terms of any intercreditor agreement among
the Lenders and the Agent. Any assignee satisfying the terms and conditions of this §18.1 shall be
referred to as an “Eligible Assignee” Upon execution, delivery, acceptance and recording of
such Assignment and Acceptance Agreement, (i) the assignee thereunder shall be a party hereto and
all other Loan Documents executed by the Lenders and have the rights and obligations of a Lender
hereunder, (ii) the assigning Lender shall, upon payment to the Agent of the registration fee
referred to in §18.2, be released from its obligations under this Agreement arising after the
effective date of such assignment with respect to the assigned portion of its interests, rights and
obligations under this Agreement, and (iii) the Agent may unilaterally amend Schedule 1 to
reflect such assignment. In connection with each assignment, the assignee shall represent and
warrant to the Agent, the assignor and each other Lender as to whether such assignee is
controlling, controlled by, under common control with or is not otherwise free from influence or
control by, the Borrower or any of its Subsidiaries.




     §18.2 Register. The Agent shall maintain on behalf of the Borrower a copy of each
assignment delivered to it and a register or similar list (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitment Percentages of and
principal amount of the Loans owing to the Lenders from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the Borrower and the Lenders
at any reasonable time and from time to time upon reasonable prior notice. Upon each such
recordation, the assigning Lender agrees to pay to the Agent a registration fee in the sum of
$3,500 (provided that with respect to any assignment by a Lender to a Subsidiary as provided
herein, the assigning Lender shall pay to Agent its reasonable expenses incurred in connection with
such assignment in lieu of such registration fee).



     §18.3 New Notes. Upon its receipt of an Assignment and Acceptance Agreement executed
by the parties to such assignment, together with each Note subject to such assignment,



86









 




the Agent shall record the information contained therein in the Register. Within five (5) Business
Days after receipt of notice of such assignment from Agent, the Borrower, at Agent’s expense, shall
execute and deliver to the Agent, in exchange for each surrendered Note, a new Note to the order of
such assignee in an amount equal to the amount assigned to such assignee pursuant to such
Assignment and Acceptance Agreement and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Lender in an amount equal to the
amount retained by it hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance Agreement and shall otherwise be in substantially the form of the assigned Notes. The
surrendered Notes shall be canceled and returned to the Borrower.




     §18.4 Participations. Each Lender may sell participations to one or more Lenders or
other entities in all or a portion of such Lender’s rights and obligations under this Agreement and
the other Loan Documents; provided that (a) any such sale or participation shall not affect
the rights and duties of the selling Lender hereunder, (b) such participation shall not entitle
such participant to any rights or privileges under this Agreement or any Loan Documents, including
without limitation, rights granted to the Lenders under §4.8, §4.9 and §4.10, (c) such
participation shall not entitle the participant to the right to approve waivers, amendments or
modifications, (d) such participant shall have no direct rights against the Borrower, (e) such sale
is effected in accordance with all applicable laws, and (f) such participant shall not be a Person
controlling, controlled by or under common control with, or which is not otherwise free from
influence or control by any of the Borrower. Any Lender which sells a participation shall promptly
notify the Agent of such sale and the identity of the purchaser of such interest.



     §18.5 Pledge by Lender. Any Lender may at any time pledge all or any portion of its
interest and rights under this Agreement (including all or any portion of its Note) to any of the
twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341 or to
such other Person as the Agent may approve to secure obligations of such lenders. No such pledge
or the enforcement thereof shall release the pledgor Lender from its obligations hereunder or under
any of the other Loan Documents.



     §18.6 No Assignment by Borrower. No Borrower shall assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of each of the Lenders
and any purported assignment without such consent shall be null and void.



     §18.7 Disclosure. Borrower agrees to promptly cooperate with any Lender in connection
with any proposed assignment or participation of all or any portion of its Commitment. Each of the
Lenders and the Agent acknowledges and agrees for itself that certain information provided and to
be provided by the Borrower contains confidential non-public information related to Borrower and
agrees to keep any information delivered or made available by the Borrower to it confidential from
anyone other than its employees, officers, attorneys and other advisors who are or are expected to
become engaged in evaluating, administering or syndicating the Loan or rendering advice in
connection therewith, and each of Agent and the Lenders agrees not to trade in EPR’s securities
(all of whom shall be bound by this §18.7) in violation of Section 10(b) of the Securities Exchange
Act of 1934, as amended, or Rule 10b-5 or



87









 




any other federal securities laws or regulations thereunder, provided that nothing herein shall
prevent any of the foregoing Persons from disclosing such information (a) to any potential
assignees or participants who have agreed to maintain the confidentiality of such information in
the manner and to the extent provided in this §18.7, (b) upon the order of any court or
administrative agency or upon the request of any administrative agency or authority having
jurisdiction over any of the foregoing Persons or such potential assignees or participants, (c)
upon the request or demand of any regulatory agency or authority, (d) to the extent that such
information has been publicly disclosed other than as a result of a disclosure by the foregoing
Persons, (e) otherwise as required by law or (f) to the extent necessary to enforce the Loan
Documents. In addition, the Lenders may make disclosure of such information to any contractual
counterparty in swap agreements or such contractual counterparty’s professional advisors (so long
as such contractual counterparty or professional advisors to such contractual counterparty agree to
be bound by the provisions of this §18.7).




     §18.8 Amendments to Loan Documents. Upon any such assignment or participation, the
Borrower shall, upon the request of the Agent, enter into such documents as may be reasonably
required by the Agent to modify the Loan Documents to reflect such assignment or participation.



§19. NOTICES.




     Each notice, demand, election or request provided for or permitted to be given pursuant to
this Agreement (hereinafter in this §19 referred to as “Notice”), but specifically
excluding to the maximum extent permitted by law any notices of the institution or commencement of
foreclosure proceedings, must be in writing and shall be deemed to have been properly given or
served by personal delivery or by sending same by overnight courier or by depositing same in the
United States Mail, postpaid and registered or certified, return receipt requested, or as expressly
permitted herein, by telegraph, telecopy, telefax or telex, and addressed as follows:



     If to the Agent or KeyBank:




KeyBank National Association

224 Franklin Street, 18th Floor

Boston, Massachusetts 02110

Attn: KeyBank Institutional Real Estate

Telecopy No.: (617) 385-6292



     With a copy to:




Burns & Levinson LLP

125 Summer Street

Boston, MA 02110

Attn: Frank A. Segall, Esq.

Telecopy No. (617) 345-3299



88









 





     If to the Borrower:




EPT 301, LLC;

Entertainment Properties Trust

c/o Entertainment Properties Trust

30 Pershing Road, Suite 201

Kansas City, MO 64108

Attn: Mark A. Peterson, Vice President and CFO; and

     Gregory K. Silvers, Esq.

     Vice President and General Counsel

Telecopy No.: (816) 472-5794


to any other Lender which is a party hereto, at the address for such Lender set forth on its
signature page hereto, and to any Lender which may hereafter become a party to this Agreement, at
such address as may be designated by such Lender. Each Notice shall be effective upon being
personally delivered or upon being sent by overnight courier or upon being deposited in the United
States Mail as aforesaid, or if transmitted by telegraph, telecopy, telefax or telex is permitted,
upon being sent and confirmation of receipt. The time period in which a response to such Notice
must be given or any action taken with respect thereto (if any), however, shall commence to run
from the date of receipt if personally delivered or sent by overnight courier, or if so deposited
in the United States Mail, the earlier of three (3) Business Days following such deposit or the
date of receipt as disclosed on the return receipt. Rejection or other refusal to accept or the
inability to deliver because of changed address for which no notice was given shall be deemed to be
receipt of the Notice sent. By giving at least fifteen (15) days prior Notice thereof, the
Borrower, a Lender or Agent shall have the right from time to time and at any time during the term
of this Agreement to change their respective addresses and each shall have the right to specify as
its address any other address within the United States of America.



Agent shall provide each Lender with written notice of any event which requires consent of the
Lenders hereunder. Unless another time period is otherwise expressly stated herein, failure to
respond within ten (10) business days from the receipt of this communication shall constitute a
deemed approval by the addressee of the action requested by the Borrower or the course of conduct
proposed by the Agent in the communication.




89









 








§20. RELATIONSHIP.




     Neither the Agent nor any Lender has any fiduciary relationship with or fiduciary duty to the
Borrower or its Subsidiaries arising out of or in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereunder and thereunder, and the relationship between
each Lender and Agent, and the Borrower is solely that of a lender and borrower, and nothing
contained herein or in any of the other Loan Documents shall in any manner be construed as making
the parties hereto partners, joint venturers or any other relationship other than lender and
borrower.



§21. USURY.




     Notwithstanding anything to the contrary contained herein, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a result of the
operation of this § 21, shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not able the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of
repayment, shall have been received by such Lender.



§22. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.




     THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
HEREIN OR THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN §19. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.



90









 




§23. POWER OF ATTORNEY. For purposes of exercising the rights and remedies granted to
Agent and the Lenders under this Agreement, Borrower hereby irrevocably constitutes and appoints
Agent its true and lawful attorney-in-fact, upon and following any Event of Default, to execute,
acknowledge and deliver any instruments and to do and perform any acts permitted hereunder or by
law in the name and on behalf of the Borrower.




§24. HEADINGS.




     The captions in this Agreement are for convenience of reference only and shall not define or
limit the provisions hereof.



§25. COUNTERPARTS.




     This Agreement and any amendment hereof may be executed in several counterparts and by each
party on a separate counterpart, each of which when so executed and delivered shall be an original,
and all of which together shall constitute one instrument. In proving this Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by the party against
whom enforcement is sought.



§26. ENTIRE AGREEMENT, ETC.




     The Loan Documents express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in §27 and §29.



§27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.




     EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY
NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER
OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGE THAT THE AGENT
AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO
WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
§27. THE BORROWER ACKNOWLEDGES THAT IT HAS HAD AN OPPORTUNITY TO REVIEW THIS §27 WITH LEGAL
COUNSEL AND THAT THE BORROWER AGREES TO THE FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.



91









 





§28. DEALINGS WITH THE BORROWER.




     The Lenders and their Affiliates may accept deposits from, extend credit to and generally
engage in any kind of banking, trust or other business with the Borrower and its Subsidiaries or
any of their Affiliates regardless of the capacity of the Lender hereunder.



§29. CONSENTS, AMENDMENTS, WAIVERS, ETC.




     Except as otherwise expressly provided in this Agreement, any consent or approval required or
permitted by this Agreement may be given, and any term of this Agreement or of any other instrument
related hereto or mentioned herein may be amended, and the performance or observance by the
Borrower of any terms of this Agreement or such other instrument or the continuance of any Default
or Event of Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the Agent and the
Required Lenders. Notwithstanding the foregoing, none of the following may occur without the
written consent of each Lender directly affected by any of the following: a reduction in the rate
of interest on the Notes; an increase in the amount of the Commitments of the Lenders (except as
provided in §18.1 and §2.2); a forgiveness, reduction or waiver of the principal of any unpaid Loan
or any interest thereon or fee payable under the Loan Documents; a change in the amount of any fee
payable to a Lender hereunder; the postponement of any date fixed for any payment of and fees or
any principal of or interest on any Loan; an extension of the Maturity Date; a change in the manner
of distribution of any payments to the Lenders or the Agent; any modification to require a Lender
to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than
based on its Commitment Percentage; a waiver of any indemnity of a Lender. The provisions of §14
may not be amended without the written consent of the Agent. Further notwithstanding the foregoing,
none of the following may occur without the written consent of 100% of the Lenders: the release of
the Borrower; an amendment of the definition of Required Lenders or of any requirement for consent
by all of the Lenders; an amendment to this §29; or an amendment of any provision of this Agreement
or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to
require a lesser number of Lenders to approve such action



     No waiver shall extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the Agent or any
Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial
thereto. No notice to or demand upon any of the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.



92









 





§30. SEVERABILITY.




     The provisions of this Agreement are severable, and if any one clause or provision hereof
shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any jurisdiction.



§31. TIME OF THE ESSENCE.




     Time is of the essence with respect to each and every covenant, agreement and obligation of
the Borrower under this Agreement and the other Loan Documents.



§32. NO UNWRITTEN AGREEMENTS.




     THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE AGREEMENT
BETWEEN THE PARTIES ARE SET FORTH BELOW.



§33. REPLACEMENT NOTES.




     Upon receipt of evidence reasonably satisfactory to Borrower of the loss, theft, destruction
or mutilation of any Note, and in the case of any such loss, theft or destruction, upon delivery of
an indemnity agreement reasonably satisfactory to Borrower or, in the case of any such mutilation,
upon surrender and cancellation of the applicable Note, Borrower will execute and deliver, in lieu
thereof, a replacement Note, identical in form and substance to the applicable Note and dated as of
the date of the applicable Note and upon such execution and delivery all references in the Loan
Documents to such Note shall be deemed to refer to such replacement Note.



§34. NO THIRD PARTIES BENEFITED.




     This Agreement and the other Loan Documents are made and entered into for the sole protection
and legal benefit of the Borrower, the Lenders, the Agent and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct
or indirect cause of action or claim in connection with, this Agreement or any of the other Loan
Documents.



§35. HONARARY TITLES.




     Morgan Stanley Bank is appointed as Documentation Agent, and in such capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for servicing, enforcement
or collection of any of the Loans, nor any duties as an agent hereunder for the Lenders. The title
of “Documentation Agent” is solely honorific and imply no fiduciary responsibility to the Agent,
the Borrower or any Lender and the use of such title does not impose on the Documentation Agent any
duties or obligations greater



93









 




than those of any other Lender or entitle the Documentation Agent to any rights other than
those to which any other Lender is entitled.




     §36. USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Agent, as applicable, to
identify the Borrower in accordance with the Act.



[SIGNATURES BEGIN ON FOLLOWING PAGE]




94









 








     IN WITNESS WHEREOF, each of the undersigned have caused this Agreement to be executed by its
duly authorized representatives as of the date first set forth above.



	 	 	 	 	 
	 	BORROWER:

EPT 301, LLC, a Missouri limited liability company

 	 
	 	By:  	/s/ Mark A. Peterson 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	ENTERTAINMENT PROPERTIES

TRUST, a Maryland real estate

investment trust

 	 
	 	By:  	/s/ Mark A. Peterson 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 



95









 






	 	 	 	 	 



	 	 	 	 	 	 	 
	LENDERS:	 	 	 	 
	 
	 	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION, individually
as a Lender and as Agent	 	 	 	Loan Amount:
$35,000,000.00

Percentage: 29.18%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Gregory W. Lane 	 	 	 	 
	 

	 	 
	 	 	 	 
	Name:
	 	Gregory W. Lane 	 	 	 	 
	Title:
	 	Vice President, Institutional
Capital Group 	 	 	 	 
	 
	 	 	 	 	 	 
	Morgan Stanley Bank, as a Lender	 	 	 	Loan Amount
$25,000,000.00

Percentage:20.83%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Daniel Twenge 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name:
	 	Daniel Twenge 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Royal Bank of Canada,
as a Lender	 	 	 	Loan Amount:
$10,000,000.00

Percentage: 8.33%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Gordon C. MacArthur 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name: Gordon C. MacArthur

Title: Authorized Signatory


JPMorgan Chase Bank, N.A.,

as a Lender	 	 	 	Loan Amount:
$10,000,000.00

Percentage: 8.33%%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Donald S. Shokrian 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name:
	 	Donald S. Shokrian 	 	 	 	 
	Title:
	 	Managing Director 	 	 	 	 
	 
	 	 	 	 	 	 
	Sovereign Bank, 

as a Lender	 	 	 	Loan Amount:
$10,000,000.00

Percentage: 8.33%
	 
	 	 	 	 	 	 
	By:
	 	/s/ T. Gregory Donohue 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name: T. Gregory Donohue

Title: Sr. Vice President	 	 	 	 






96









 






	 	 	 	 	 	 	 
	Bank Midwest N.A.,

as a Lender	 	 	 	Loan Amount
$10,000,000.00

Percentage: 8.33%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Damon K. Stelting 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name: Damon K. Stelting

Title: Vice President, Commercial Lending


Fifth Third Bank, as a Lender	 	 	 	Loan Amount
$10,000,000.00

Percentage:8.33%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Traci L. Dodson 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name: Traci L. Dodson	 	 	 	 
	Title: Vice President	 	 	 	 
	 
	 	 	 	 	 	 
	UMB Bank, n.a.,

as a Lender	 	 	 	Loan Amount:
$5,000,000.00

Percentage: 4.17%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Robert P. Elbert 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name: Robert P. Elbert	 	 	 	 
	Title: Senior Vice President


Bear Stearns Corporate Lending Inc.

as a Lender	 	 	 	

Loan Amount:
$5,000,000.00

Percentage: 4.17%
	 
	 	 	 	 	 	 
	By:
	 	/s/ Victor F. Bulzacchelli 	 	 	 	 
	 

	 	 

	 	 	 	 
	Name:
	 	Victor F. Bulzacchelli 	 	 	 	 
	Title:
	 	Vice President 	 	 	 	 






97









 





EXHIBIT B


PROMISSORY NOTE




			
	 	 	 
	$_______.00
	 	October ___, 2007






     FOR VALUE RECEIVED, the undersigned, EPT 301, LLC, a Missouri limited liability company,
ENTERTAINMENT PROPERTIES TRUST, a real estate investment trust, duly organized under the laws of
the state of Maryland, (severally, a “Borrower” and collectively, the “Borrowers”),
each with an address at c/o Entertainment Properties Trust, 30 Pershing Road, Suite 201, Kansas
City, MO 64108, jointly and severally hereby promises to pay to the order of
_________(“Payee”) at the office of KEYBANK NATIONAL ASSOCIATION, a
national banking association, as Agent for the Lenders (“Agent”), in accordance with the
terms of that certain Master Credit Agreement, dated as of October ___, 2007, as from time to time
in effect, among Borrowers, KeyBank National Association, for itself and as Agent, and such other
Lenders as may be from time to time named therein, (the “Credit Agreement”), to the extent
not sooner paid, on or before the Maturity Date, the principal sum of _________ and 00/100
Dollars ($_________.00), or such amount as may be advanced by the Payee under the Credit Agreement as
a Loan with daily interest from the date thereof, computed as provided in the Credit Agreement, on
the principal amount hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest applicable to such
portion in accordance with the Credit Agreement, and with interest on overdue principal and, to the
extent permitted by applicable law, on overdue installments of interest and late charges at the
rates provided in the Credit Agreement. Interest shall be payable on the dates specified in the
Credit Agreement, except that all accrued interest shall be paid at the stated or accelerated
maturity hereof or upon the prepayment in full hereof. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Credit Agreement.



     Payments hereunder shall be made to the Agent for the Payee at 225 Franklin Street,
18th Floor, Boston, Massachusetts 02110.



     This Note is one of one or more Notes evidencing borrowings under and is entitled to the
benefits and subject to the provisions of the Credit Agreement. The principal of this Note may be
due and payable in whole or in part prior to the Maturity Date and is subject to mandatory
prepayment in the amounts and under the circumstances set forth in the Credit Agreement, and may be
prepaid in whole or from time to time in part, all as set forth in the Credit Agreement.



     Notwithstanding anything in this Note to the contrary, all agreements between the undersigned
Borrowers and the Lenders and the Agent, whether now existing or hereafter arising and whether
written or oral, are hereby limited so that in no contingency, whether by reason of acceleration of
the maturity of any of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Lenders exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to the Lenders in excess of the
maximum lawful amount, the interest payable to the Lenders shall



1









 







be reduced to the maximum amount permitted under applicable law; and if from any circumstance
the Lenders shall ever receive anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction
of the principal balance of the Obligations of the undersigned Borrowers or, if such excessive
interest exceeds the unpaid balance of principal of the Obligations of the undersigned Borrowers,
such excess shall be refunded to the undersigned Borrowers. All interest paid or agreed to be paid
to the Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full period until payment in full of the principal of the Obligations of
the undersigned Borrowers (including the period of any renewal or extension thereof) so that the
interest thereon for such full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between the undersigned Borrowers and the Lenders
and the Agent.



     In case an Event of Default shall occur, the entire principal amount of this Note may become
or be declared due and payable in the manner and with the effect provided in said Credit Agreement.



     This Note shall be governed by and construed in accordance with the laws of the State of New
York (without giving effect to the conflict of laws rules of any jurisdiction).



     The undersigned Borrowers and all guarantors and endorsers hereby waive presentment, demand,
notice, protest, notice of intention to accelerate the indebtedness evidenced hereby, notice of
acceleration of the indebtedness evidenced hereby and all other demands and notices in connection
with the delivery, acceptance, performance and enforcement of this Note, except as specifically
otherwise provided in the Credit Agreement, and assent to extensions of time of payment or
forbearance or other indulgence without notice.



[SIGNATURES APPEAR ON FOLLOWING PAGE]




2









 








     IN WITNESS WHEREOF, the undersigned has duly executed this Note on the day and year first
above written.



	 	 	 	 	 
	 	EPT 301, LLC

a Missouri limited liability company

 	 
	_________________
Witness: 	By:  	 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 
	 	ENTERTAINMENT PROPERTIES TRUST

a Maryland real estate investment trust

 	 
	_________________
Witness: 	By:  	 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 



3









 






	 	 	 	 	 



EXHIBIT J




FORM OF BORROWING BASE CERTIFICATE




Date: __________, 20__




KeyBank National Association

225 Franklin Street, 18th Floor

Boston, Massachusetts 02110Attn:                     





Ladies and Gentlemen:



     This Certificate is furnished pursuant to Section 7.4(c) of the Master Credit Agreement dated
as of October ___, 2007, as it may be amended from time to time (the “Credit Agreement”) by
and among EPT 301, LLC, a limited liability company duly organized and validly existing under the
laws of the State of Missouri (“Borrower-SPE”), and ENTERTAINMENT PROPERTIES TRUST, a real
estate investment trust duly organized and validly existing under the laws of the State of Maryland
(“EPR”) (individually and collectively, jointly and severally, Borrower-SPE, and EPR are
referred to as the “Borrower”), having its principal place of business at c/o
Entertainment Properties Trust, 30 Pershing Road, Suite 201, Kansas City, MO 64108, KEYBANK
NATIONAL ASSOCIATION (“KeyBank”) the other lending institutions which are or may become
parties to this Agreement as “Lenders” (each, individually, a “Lender”), pursuant
to §18 (together with KeyBank, the “Lenders”), and KEYBANK NATIONAL ASSOCIATION, as Agent
for the Lenders (the “Agent”).



     Unless otherwise defined herein, the terms used in this Certificate have the meanings given to
them in the Credit Agreement. I am duly authorized to deliver this Certificate and the attached
Schedule on behalf of the Borrower and hereby certify that the calculations made on said Schedule
are correct and accurate as of ____________ 20___, and that as of the date hereof, and after giving
effect to any pending extension of credit, there exists and shall not exist any violation of the
Borrowing Base covenants as set forth in the Credit Agreement and that Borrower is in compliance
therewith.



     Borrower is providing the attached information to demonstrate compliance as of the date hereof
with the covenants described in the attachment hereto.



1









 





     IN WITNESS WHEREOF, the undersigned have duly executed this Borrowing Base Certificate this
_______________ day of ___, 200__.



	 	 	 	 	 
	 	EPT 301, LLC,

a Missouri limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 
	 	ENTERTAINMENT PROPERTIES TRUST, 

a Maryland real estate investment trust

 	 
	 	By:  	 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 



2









 






	 	 	 	 	 



EXHIBIT K




FORM OF COMPLIANCE CERTIFICATE




KeyBank National Association

225 Franklin Street, 18th Floor

Boston, Massachusetts 02110




Attn: _________________





Ladies and Gentlemen:



Reference is made to the d Master Credit Agreement dated as of October ___, 2007 (as the same
may hereafter be amended, the “Credit Agreement”) by and among EPT 301, LLC, and
ENTERTAINMENT PROPERTIES TRUST (collectively, the “Borrower”), KeyBank National Association
for itself and as Agent, and the other Lenders from time to time party thereto. Terms defined in
the Credit Agreement and not otherwise defined herein are used herein as defined in the Credit
Agreement.



     Pursuant to the Credit Agreement, Borrower is furnishing to you herewith (or have most
recently furnished to you) the consolidated financial statement of Borrower and its Consolidated
Subsidiaries for the fiscal period ended _______________ (the “Balance Sheet Date”). Such
financial statement has been prepared in accordance with GAAP and presents fairly the consolidated
financial position of Borrower and its Consolidated Subsidiaries covered thereby at the date
thereof and the results of its operations for the periods covered thereby, subject in the case of
interim statements only to normal year-end audit adjustments.



     This certificate (including the attached schedule) is submitted in compliance with
requirements of §5.4(b), §7. 4(c), §7. 5(e), Article 9 or §10.12 of the Credit Agreement. If this
certificate is provided under a provision other than §7.4(c), the calculations provided below are
made using the consolidated financial statement of Borrower as of the Balance Sheet Date adjusted
in the best good faith estimate of Borrower to give effect to the making of any credit extension,
acquisition or disposition of property or other event that occasions the preparation of this
certificate; and the nature of such event and the estimate of Borrower of its effects are set forth
in reasonable detail in an attachment hereto. The undersigned officer is the chief financial
officer or chief accounting officer of Borrower.



     The undersigned representatives have caused the provisions of the Loan Documents to be
reviewed and have no knowledge of any Default or Event of Default. (Note: If the signer does have
knowledge of any Default or Event of Default, the form of certificate should be revised to specify
the Default or Event of Default, the nature thereof and the actions taken, being taken or proposed
to be taken by the Borrower with respect thereto.)



     Borrower is providing the attached information to demonstrate compliance as of the date hereof
with the covenants described in the attachment hereto.



1









 





     IN WITNESS WHEREOF, the undersigned have duly executed this Compliance Certificate this ___
day of _______________, 200__.



	 	 	 	 	 
	 	EPT 301, LLC,

a Missouri limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President and Chief Financial Officer 	 
	 
	 	ENTERTAINMENT PROPERTIES TRUST

a Maryland real estate investment trust

 	 
	 	By:  	 	 
	 	 	Name:  	Mark A. Peterson 	 
	 	 	Title:  	Vice President 	 



2









 






	 	 	 	 	 



EXHIBIT L




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT





     Reference is made to that certain Master Credit Agreement dated as of October ___, 2007, (as
the same may be amended or modified from time to time, the “Credit Agreement”), among EPT
301, LLC, and Entertainment Properties Trust, (each, jointly and severally, a “Borrower”;
collectively, the “Borrowers”), the financial institutions party thereto, as lenders and
KeyBank National Association, for itself and as agent for the Lenders (in such capacity, the
“Agent”). Terms defined in the Credit Agreement are used herein with the same meanings.


1. The undersigned assignor (the “Assignor”) hereby sells and assigns, without recourse, to
the undersigned assignee (the “Assignee”), and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the effective date set forth below, the
interests set forth below (the “Assigned Interest”) in the Assignor’s rights and
obligations under the Credit Agreement, including, without limitation, the interests set forth
below in the Commitments of the Assignor on the effective date and the Loans owing to the Assignor
which are outstanding on the effective date, together with unpaid interest accrued on the assigned
Loans to the effective date and the amount, if any, set forth below of the fees accrued to the
effective date for the account of the Assignor. Each of the Assignor and the Assignee hereby makes
and agrees to be bound by all the representations, warranties and agreements set forth in the
Credit Agreement, a copy of which has been received by each such party. From and after the
effective date (i) the Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interest assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and under the Loan Documents and (ii) the Assignor
shall, to the extent of the interests assigned by this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.



2. This Assignment and Acceptance is being delivered to the Agent together with (i) the Notes
evidencing the Loans included in the Assigned Interest, (ii) if the Assignee is organized under the
laws of a jurisdiction outside the United States, such forms as may be required by the Agent, duly
completed and executed by such Assignee and (iii) if the Assignee is not already a Lender under the
Credit Agreement, an Administrative Questionnaire in the form of Exhibit L-1 to the Credit
Agreement.



3. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK



Date of Assignment:



Legal Name of Assignor:



Legal Name of Assignee:



Assignee’s Address for Notices:




1









 







Effective date of Assignment (may not be fewer than 5 Business Days after the Date of Assignment):




Percentage Assigned of Commitments (set forth,
as a percentage of the Aggregate
Allocations: __________________%




Principal Amount

Assigned: $



Fees Assigned (if any):



The terms set forth above are hereby agreed to:




__________________________________________ as Assignor




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



__________________________________________ as Assignee




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 




2









 






	 	 	 	 	 



EXHIBIT L-1




FORM OF ADMINISTRATIVE QUESTIONNAIRE



Please accurately complete the following information and return via FAX to the attention of
James B. McLaughlin, Director, Institutional Real Estate, KeyBank National Association, as soon as
possible.




Fax Number: (617) 385-6292




LEGAL NAME TO APPEAR IN DOCUMENTATION:




GENERAL INFORMATION — DOMESTIC LENDING OFFICE:




Institution Name:

Street Address:

City, State, Zip Code:

CONTACTS/NOTIFICATION METHODS:

CREDIT CONTACTS:

Primary Contact:

Street Address:

City, State, Zip Code:

Phone Number:

FAX Number:

Backup Contact:

Street Address:

City, State, Zip Code:

Phone Number:

FAX Number:

TAX WITHHOLDING:




Non Resident Alien          Y*

* Form 4224 Enclosed

Tax ID Number




3









 





CONTACTS/NOTIFICATION METHODS:




ADMINISTRATIVE CONTACTS — BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.




Contact:

Street Address:

City, State, Zip Code:

Phone Number:

FAX Number:




PAYMENT INSTRUCTIONS:




Name of Bank where funds are to be transferred:

Routing Transit/ABA number of Bank where funds are to be transferred:

Name of Account, if applicable:

Account Number:

Additional Information:




MAILINGS:




Please specify who should receive financial information:

Name:

Street Address:

City, State, Zip Code:



It is very important that all of the above information is accurately filled in and returned
promptly. If there is someone other than yourself who should receive this questionnaire, please
notify me of their name and FAX number and we will FAX them a copy of the questionnaire. If you
have any questions, please call me at (617) 385-6292.




PARTICIPANT INFORMATION




Participant Name:

Address:

Primary Contact:

Title:

Department:

Phone Number:

Facsimile 9:

Alternate Contact:

Phone Number:

Facsimile #:

Account Officer:




4









 





Phone Number:

Tax ID #:

Commitment Percentage:

Maximum Commitment:

Interest Rate and Fees:




WIRE INSTRUCTIONS TO YOUR BANK:




Bank Name:

Department Name:

ABA 9:

A/C #:

Attention:

Client Name/Ref




AGENT’S WIRE INSTRUCTIONS:




Name:

ABA 9:

A/C #: (to be assigned)

Tax ID #:

Attention:

Client Name/Ref




5









 





SCHEDULE 1




LENDERS AND COMMITMENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Commitment	 
	Lender	 	Commitment	 	 	Percentage	 
	 
	KeyBank National Association

	 	$	_________.00	 	 	 	________	%
	225 Franklin Street, 18th Floor

	 	 	 	 	 	 	 	 
	Boston, Massachusetts 02110

	 	 	 	 	 	 	 	 
	Attn: James McLaughlin

	 	 	 	 	 	 	 	 
	Institutional Real Estate

	 	 	 	 	 	 	 	 
	Tel: (617) 385-6215

	 	 	 	 	 	 	 	 
	Fax: (617) 385-6292
	 	 	 	 	 	 	 	 






1









 






SCHEDULE 1.1




BORROWING BASE ASSETS




	 	 	 
	Asset Name	 	Asset Location
	 
	Ski Assets (Peak Resorts)
	 	 
	Mad River Mountain
	 	Zanesville, OH
	Crotched Mounting
	 	Bennington, NH
	Mt. Attitash
	 	West Dover, NH
	Mt. Snow
	 	Wilmington, VT
	 
	Waterpark
	 	 
	SVVI—Schlitterbahn
	 	Kansas City, KS
	 
	Wineries and Vineyards
	 	 
	EOS
	 	Paso Robles, CA
	Cosentino
	 	Napa/San Joaquin, CA
	 
	Movie Theatres
	 	 
	Hampton Town Center 24
	 	Hampton, VA






1









 






SCHEDULE 3




ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS



1. Lease Summaries. Detailed Lease Summaries of all Tenant Leases relating to such Real
Estate, in form and substance reasonably satisfactory to the Required Lenders.



2. Rent Roll. Current Rent Roll for such Real Estate certified by the Borrower as accurate
and complete as of a recent date, in form and substance reasonably satisfactory to the Required
Lenders, including without limitation, Tenant identification, term of lease, current rent, square
footage, etc.



3. Certificate Regarding Condition. A certification from the chief executive or chief
financial officer of the Borrower that such Real estate complies with the terms of Section 6.23.



4. Budget. An operating and capital expenditure budget for such Real Estate in form and
substance reasonably satisfactory to the Required Lenders. The capital expenditure budget for the
Real Estate must show adequate reserves or cash flow to cover capital expenditure needs of the Real
Estate.



5. Operating Statements. Operating statements for such Real Estate in the form of such
statements delivered to the Lenders under Section 7.4(c) covering each of the four fiscal quarters
ending immediately prior to the addition of such Real Estate to the Borrowing Base Asset, to the
extent available. Such operating statements shall be subject to the approval of the Required
Lenders.



6. EPR Senior Property Loan Summaries. Detailed summaries of all EPR Senior Property Loans
and related EPR Senior First Mortgages in form and substance reasonably satisfactory to the
Required Lenders.



7. Additional Documents. Such other agreements, documents, certificates, reports or
assurances as the Agent may reasonably require.





1









 








SCHEDULE 6.3




LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS




None.




1









 





SCHEDULE 6.5




MATERIAL CHANGES TO BORROWING BASE ASSETS

None.



1









 





SCHEDULE 6.7




PENDING LITIGATION OF BORROWER

None.




1









 





SCHEDULE 6.15




LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES




None.




1









 





SCHEDULE 6.20




ENVIRONMENTAL RELEASES SCHEDULE




None.





1











 





SCHEDULE 6.21




EPR AND ITS AFFILIATES




	 	 	 
	 	 	Jurisdiction of
	Entity	 	Organization
	 
	 	 
	Entertainment Properties Trust
	 	MD
	3 Theatres, Inc.
	 	MO
	30 West Pershing, LLC
	 	MO
	Atlantic — EPR I
	 	DE
	Atlantic — EPR II
	 	DE
	Burbank Village, Inc.
	 	DE
	Burbank Village, L.P.
	 	DE
	Cantera 30 Theatre, LP
	 	DE
	Cantera 30, Inc.
	 	DE
	Domus Communities, LLC
	 	DE
	Duncan Peak VinREIT LLC
	 	DE
	EPR Canada, Inc.
	 	MO
	EPR Hialeah, Inc.
	 	MO
	EPR Metropolis Trust
	 	DE
	EPR North Trust
	 	DE
	EPR TRS Holdings, Inc.
	 	MO
	EPR TRS I, Inc.
	 	MO
	EPR TRS II, Inc.
	 	MO
	EPT 301, LLC
	 	MO
	EPT Aliso Viejo, Inc.
	 	DE
	EPT Arroyo, Inc.
	 	DE






1









 






	 	 	 
	 	 	Jurisdiction of
	Entity	 	Organization
	 
	 	 
	EPT Auburn, Inc.
	 	DE
	EPT Biloxi, Inc.
	 	DE
	EPT Boise, Inc.
	 	DE
	EPT Chattanooga, Inc.
	 	DE
	EPT Columbiana, Inc.
	 	DE
	EPT Crotched Mountain, Inc.
	 	MO
	EPT Davie, Inc.
	 	DE
	EPT Deer Valley, Inc.
	 	DE
	EPT DownREIT, Inc.
	 	MO
	EPT DownREIT II, Inc.
	 	MO
	EPT East, Inc.
	 	MO
	EPT Firewheel, Inc.
	 	DE
	EPT First Colony, Inc.
	 	DE
	EPT Fresno, Inc.
	 	DE
	EPT GCC, LLC
	 	DE
	EPT Gulf Pointe, Inc.
	 	DE
	EPT Hamilton, Inc.
	 	DE
	EPT Hattiesburg, Inc.
	 	DE
	EPT Hoffman Estates, Inc.
	 	DE
	EPT Huntsville, Inc.
	 	DE
	EPT Hurst, Inc.
	 	DE
	EPT Indianapolis, Inc.
	 	DE
	EPT Kalamazoo, Inc.
	 	MO
	EPT Lafayette, Inc.
	 	DE
	EPT Lawrence, Inc.
	 	DE






2









 






	 	 	 
	 	 	Jurisdiction of
	Entity	 	Organization
	 
	 	 
	EPT Leawood, Inc.
	 	DE
	EPT Little Rock, Inc.
	 	DE
	EPT Macon, Inc.
	 	DE
	EPT Mad River, Inc.
	 	MO
	EPT Manchester, Inc.
	 	DE
	EPT Melbourne, Inc.
	 	MO
	EPT Mesa, Inc.
	 	DE
	EPT Mesquite, Inc.
	 	DE
	EPT Modesto, Inc.
	 	DE
	EPT Mount Attitash, Inc.
	 	DE
	EPT Mount Snow, Inc.
	 	DE
	EPT New Roc GP, Inc.
	 	DE
	EPT New Roc, LLC
	 	DE
	EPT Oakview, Inc.
	 	DE
	EPT Pensacola, Inc.
	 	MO
	EPT Pompano, Inc.
	 	DE
	EPT Raleigh Theatres, Inc.
	 	DE
	EPT Schoolhouse, Inc.
	 	DE
	EPT Ski Properties, Inc.
	 	DE
	EPT Slidell, Inc.
	 	DE
	EPT South Barrington, Inc.
	 	DE
	EPT Waterparks, Inc.
	 	DE
	EPT White Plains, LLC
	 	DE
	EPT Wilmington, Inc.
	 	DE
	Exit 108 Entertainment, LLC
	 	AL






3









 






	 	 	 
	 	 	Jurisdiction of
	Entity	 	Organization
	 
	 	 
	Flik Depositor, Inc.
	 	DE
	Flik, Inc.
	 	DE
	Kanata Entertainment Holdings, Inc.
	 	Canada
	LCPV VinREIT, Inc.
	 	DE
	LC White Plains Recreation, LLC
	 	NY
	LC White Plains Retail, LLC
	 	NY
	Megaplex Four, Inc.
	 	MO
	Megaplex Holdings, Inc.
	 	MO
	Megaplex Nine, Inc.
	 	MO
	Metropolis Entertainment Holdings, Inc.
	 	Canada
	Mississauga Entertainment Holdings, Inc.
	 	Canada
	New Roc Associates, LP
	 	NY
	Oakville Entertainment Holdings, Inc.
	 	Canada
	Paso Robles VinREIT, LLC
	 	MO
	Suffolk Retail, LLC
	 	DE
	Tampa Veterans 24, Inc.
	 	DE
	Tampa Veterans 24, LP
	 	DE
	Theatre Sub, Inc.
	 	MO
	VinREIT, LLC
	 	DE
	WestCol Center, LLC
	 	DE
	WestCol Holdings, LLC
	 	DE
	WestCol Theatre, LLC
	 	DE
	Westminster Promenade Owner’s Association, LLC
	 	CO
	Whitby Entertainment Holdings, Inc.
	 	CO






4









 






SCHEDULE 6.22




MONETARY DEFAULTS UNDER LEASES




None.




1









 





SCHEDULE 6.25




MATERIAL LOAN AGREEMENTS




	 	 	 	 	 	 	 
	Company	 	Original Lender	 	Start Date	 	End Date
	 
	 	 	 	 	 	 
	Burbank Village, LP

	 	Archon Financial
	 	5/19/2005
	 	6/5/2015
	EPR North Trust

	 	GMAC
	 	3/1/2004
	 	3/1/2014
	EPT Aliso Viejo, Inc.

	 	Goldman Sachs
	 	3/6/2006
	 	3/6/2016
	EPT Arroyo, Inc.

	 	Goldman Sachs
	 	9/29/2006
	 	10/6/2016
	EPT Auburn, Inc.

	 	Bear Stearns
	 	9/12/2006
	 	10/1/2016
	EPT Biloxi, Inc.

	 	Bear Stearns
	 	2/21/2007
	 	3/1/2017
	EPT Boise, Inc.

	 	Archon Financial
	 	10/28/2005
	 	11/6/2015
	EPT Chattanooga, Inc.

	 	Bear Stearns
	 	7/30/2007
	 	8/1/2017
	EPT Columbiana, Inc.

	 	Bear Stearns
	 	9/12/2006
	 	10/1/2016
	EPT Davie, Inc.

	 	Goldman Sachs
	 	3/6/2006
	 	3/6/2016
	EPT Deer Valley, Inc.

	 	Archon Financial
	 	10/28/2005
	 	11/6/2015
	EPT DownREIT II, Inc.

	 	Archon Financial
	 	6/29/1998
	 	7/11/2008
	EPT First Colony, Inc.

	 	Bear Stearns
	 	4/19/2007
	 	5/1/2017
	EPT Fresno, Inc.

	 	Goldman Sachs
	 	3/23/2007
	 	4/6/2017
	EPT Gulf Pointe, Inc.

	 	Bear Stearns
	 	9/19/2007
	 	10/1/2012
	EPT Hamilton, Inc.

	 	Archon Financial
	 	10/28/2005
	 	11/6/2015
	EPT Hattiesburg, Inc.

	 	Key Bank
	 	4/18/2007
	 	5/1/2017
	EPT Hurst, Inc.

	 	Bear Stearns
	 	6/1/2006
	 	6/30/2016
	EPT Indianapolis, Inc.

	 	Key Bank
	 	4/18/2007
	 	5/1/2017
	EPT Lafayette, Inc.

	 	Goldman Sachs
	 	9/29/2006
	 	10/6/2016
	EPT Lawrence, Inc.

	 	Key Bank
	 	4/18/2007
	 	5/1/2017
	EPT Leawood, Inc.

	 	Bear Stearns
	 	7/30/2007
	 	8/1/2017
	EPT Little Rock, Inc.

	 	Archon Financial
	 	10/28/2005
	 	11/6/2015
	EPT Macon, Inc.

	 	Goldman Sachs
	 	9/29/2006
	 	10/6/2016
	EPT Mesa, Inc.

	 	Bear Stearns
	 	6/1/2006
	 	6/30/2016
	EPT Mesquite, Inc.

	 	Bear Stearns
	 	9/24/2007
	 	10/1/2012
	EPT Modesto, Inc.

	 	Bear Stearns
	 	9/12/2006
	 	10/1/2016
	EPT Oakview, Inc.

	 	Bear Stearns
	 	4/19/2007
	 	5/1/2017
	EPT Pompano, Inc.

	 	Archon Financial
	 	10/28/2005
	 	11/6/2015
	EPT Raleigh Theatres,
Inc.

	 	Archon Financial
	 	10/28/2005
	 	11/6/2015






1









 






	 	 	 	 	 	 	 
	Company	 	Original Lender	 	Start Date	 	End Date
	 
	 	 	 	 	 	 
	EPT South Barrington,
Inc.

	 	Bear Stearns
	 	10/3/2007
	 	11/1/2012
	EPT Wilmington, Inc.

	 	Bear Stearns
	 	9/12/2006
	 	10/1/2016
	Flik, Inc.

	 	Secore Financial
	 	2/27/2003
	 	2/10/2013
	New Roc Associates, LP

	 	Archon Financial
	 	3/9/2014
	 	4/1/2014
	New Roc Associates, LP

	 	Empire State Development Corporation
	 	1/30/1998
	 	Undetermined*
	Westcol Theatre, LLC

	 	Wells Fargo Bank
	 	8/1/1998
	 	7/15/2018
	LC White Plains
Retail, LLC & LC
White Plains
recreation, LLC

	 	Union Labor Life
	 	10/7/2004
	 	10/7/2010
	LC White Plains
Retail, LLC

	 	Empire State Development Corporation
	 	 	 	Undetermined*






The Revolving Credit Agreement




2









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	EXHIBITS AND SCHEDULE	 	 	 	 
	 
	Exhibit A
	 	[RESERVED].	 	 	 	 
	Exhibit B
	 	[RESERVED]	 	 	 	 
	Exhibit E
	 	[RESERVED]	 	 	 	 
	Exhibit H
	 	[RESERVED]	 	 	 	 
	Exhibit I
	 	[RESERVED]	 	 	 	 
	Exhibit J
	 	FORM OF BORROWING BASE CERTIFICATE	 	 	 	 
	Exhibit K
	 	FORM OF COMPLIANCE CERTIFICATE	 	 	 	 
	Exhibit L
	 	FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT	 	 	 	 
	Exhibit L-1
	 	FORM OF ADMINISTRATIVE QUESTIONNAIRE	 	 	 	 
	Schedule 1
	 	COMMITMENTS	 	 	 	 
	Schedule 1.1
	 	INITIAL ELIGIBLE REAL ESTATE	 	 	 	 
	Schedule 3
	 	ELIGIBLE REAL ESTATE QUALIFICATION DOCUMENTS	 	 	 	 
	Schedule 6.3
	 	LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS	 	 	 	 
	Schedule 6.5
	 	MATERIAL CHANGES TO BORROWING BASE ASSETS	 	 	 	 
	Schedule 6.7
	 	PENDING LITIGATION OF BORROWER	 	 	 	 
	Schedule 6.15
	 	LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES	 	 	 	 
	Schedule 6.20
	 	ENVIRONMENTAL RELEASES	 	 	 	 
	Schedule 6.21
	 	AFFILIATES OF THE BORROWER	 	 	 	 
	Schedule 6.22
	 	MONETARY DEFAULTS UNDER LEASES	 	 	 	 
	Schedule 6.25
	 	MATERIAL LOAN AGREEMENTS