exv10w1



 





EXHIBIT 10.1




30 WEST PERSHING, LLC;

ENTERTAINMENT PROPERTIES TRUST;

EPR HIALEAH, INC.;

WESTCOL CENTER, LLC; AND

EPT MELBOURNE, INC.

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




AMENDMENT NO. 1 TO

AMENDED AND RESTATED MASTER CREDIT AGREEMENT




     THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED MASTER CREDIT AGREEMENT (this
“Amendment”) is made as of April 18, 2007 by and among 30 WEST PERSHING, LLC, a limited
liability company duly organized and validly existing under the laws of the State of Missouri
(“Pershing”), EPR HIALEAH, INC., a corporation duly organized and validly existing under
the laws of the State of Missouri (“Hialeah”), WESTCOL CENTER, LLC, a limited liability
company duly organized and validly existing under the laws of the State of Delaware
(“Westcol”), EPT MELBOURNE, INC., a corporation duly organized and validly existing under
the laws of the State of Missouri (“Melbourne”), 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, Pershing, Hialeah, Westcol, Melbourne and any other Borrower-SPE and EPR are referred
to as the “Borrowers” or the “Borrower”, and each individually may be referred to
as a “Borrower”), the Lenders, KEYBANK NATIONAL ASSOCIATION, as Administrative Agent
(“Keybank” and/or the “Agent”), and KEYBANC CAPITAL MARKETS, as Sole Lead Arranger
and Sole Book Manager. Capitalized terms used herein and not otherwise defined shall have the
meanings specified in the Loan Agreement.



R E C I T A L S 




     WHEREAS, the Borrower, the Lenders, and the Agent entered into that certain Amended and
Restated Master Credit Agreement dated as of January 31, 2006, as the same may be amended from time
to time (as so amended, the “Loan Agreement”).



     WHEREAS, Borrower has requested and Agent and Lenders have agreed to various modifications to
the Loan Agreement, all as more particularly set forth herein.



     NOW THEREFORE, in consideration of the foregoing premises and the mutual benefits to be
derived by the Borrower and the Lenders from a continuing relationship under the Loan Agreement and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:



 









 




A. The Loan Agreement is hereby amended as follows:




     1. The following definitions are hereby inserted into Section 1.1 in their respective
alphabetical order:



          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.




     2. The definitions in Section 1.1 of the below referenced terms are hereby deleted in
their entirety and replaced with the following in their stead:



          Borrowing Base. The amount which is the lesser of (a) sixty-five percent (65%) of
Borrowing Base Asset Value, or (b) the sum of (i) Underwriteable Cash Flow generated by Megaplex
Movie Theatres and other Entertainment-Related Retail Improvements (whether subject to a Lease or
an EPR Senior First Mortgage) divided by 1.65, and then further divided by the Assumed Debt Service
Constant, and (ii) Underwriteable Cash Flow generated by assets other than Megaplex Movie Theatres
and other Entertainment-Related Retail Improvements divided by 1.85 and then further divided by the
Assumed Debt Service Constant; provided however, that in no event shall assets that are not
Megaplex Movie Theatres or other Entertainment-Related Retail Improvements exceed in the aggregate
twenty-five percent (25%) of the Borrowing Base.




          Borrowing Base Asset Value. With respect to Borrowing Base Properties, 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
(whether subject to a Lease or an EPR Senior First Mortgage); and (ii) 10.00% for all other
Borrowing Base Properties that are not Megaplex Movie Theatres or other Entertainment-Related
Retail Improvements..




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





	 	(a)	 	Megaplex Movie Theatres, Entertainment-Related Retail Improvements and Land
Under Development. With respect to any Borrowing Base Property (other than Borrowing
Base Property 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 Property (including base
rent and expense reimbursement, but excluding straight line and percentage rent), and
all as otherwise determined in accordance with GAAP together with recoveries from
tenants as determined in accordance with GAAP, all such amounts shall be attributable
to such period and accrued according to GAAP, less (i) all “property expenses”
consisting solely of expenses incurred or accrued by the Borrower-SPE that are directly
related to the operation and ownership of such Borrowing Base Property, including any
real estate taxes, sales taxes, common area maintenance charges, accounting and
administration, security, utilities, maintenance, janitorial, premiums for casualty and
liability insurance or ground lease payments (excluding from the foregoing expenses for
depreciation, amortization, interest and leasing commissions with respect to such
Borrowing Base Property) 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 Property
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
Property described above, then, if such Borrowing Base Property is a new theatre or a
new Lease executed by Tenant and Borrower-SPE in connection with the acquisition of a
Borrowing Base Property, 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 Property, as provided for in the applicable Lease less the Management
Expense and less the Replacement Reserve. Additionally, as the Borrowing Base
Property financial information becomes available (i.e. after the Borrowing Base
Property has been in operation for one quarter, two quarters, etc.) such actual
information shall be used, as adjusted, by “annualizing” the amounts so that such
amounts are received on a monthly basis over the course of a year and fairly stated for
each period, and as further adjusted for “property expenses,” Management Expense and
Replacement Reserves.
	 
	 	(b)	 	EPR Senior First Mortgages. With respect to any Borrowing Base Property
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





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	 	 	 	amounts not more than 45 days delinquent in arrears) for the
Borrowing Base Property, 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 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
Property consisting of land under development which is subject to an EPR Senior First
Mortgage). If a Borrowing Base Property 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
Property described above, then for purposes of this calculation, “interest income”
shall mean the actual annual interest income for the Borrowing Base Property, as
provided for in the applicable EPR Senior First Mortgage less the Management Expense
and less the Replacement Reserve. Additionally, as the Borrowing Base Property
financial information becomes available (i.e. after the Borrowing Base Property has
been in operation for one quarter, two quarters, etc.) such actual information shall
be used, as adjusted, by “annualizing” the amounts so that such amounts are received
on a monthly basis over the course of a year and fairly stated for each period, and
as further adjusted for “property expenses,” Management Expense and Replacement
Reserves.
	 
	 	 	 	Eligible Real Estate. Real Estate:






     (a) (i) 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) A 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




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all Leases or EPR Senior First Mortgages for any Borrowing Base Property 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 Property are true and correct;




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




          (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.




          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 Theatre.




          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
Properties.




          Replacement Reserve means (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.




          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.




          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.




     3. The following modification shall address a scrivener’s error in the definition of
“Underwriteable Cash Flow” and note the inclusion of EPR Senior First Mortgages; said definition is
hereby deleted in its entirety and replaced with the following in its stead:



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     “Underwriteable Cash Flow. (1) With respect to Borrowing Base Property that is a
Megaplex Movie Theatre (whether subject to a Lease or an EPR Senior First Mortgage), determined
individually, the lesser of (A) the Borrowing Base Property NOI for the trailing 4 quarter period,
or (B) the Exhibitor’s EBITDAR for such Borrowing Base Property 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 Property that is not a Megaplex Movie
Theatre, the Borrowing Base Property NOI for the most recently ended quarter and then annualized.



     4. The first sentence in the definition of “Borrowing Base Property or Borrowing Base
Properties” in §1.1 of the Loan Agreement is deleted and is replaced by the following two
sentences: “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
Property consists of Eligible Real Estate that is subject to an EPR Senior First Mortgage, the term
“Borrowing Base Property” shall be deemed to refer to such Eligible Real Estate or the related EPR
Senior Property Loan, as the context may require.



     5. Section 2.10 “Letters of Credit” of the Loan Agreement is hereby modified
by increasing the maximum limit thereunder to Seventy Million and 00/100 Dollars ($70,000,000.00),
such that §2.10(a)(ii) reads as follows:



     “(ii) upon issuance of such Letter of Credit, the Outstanding Letters of Credit (including the
amounts of drawings made under Letters of Credit but not reimbursed) shall not exceed Seventy
Million and 00/100 Dollars ($70,000,000.00),”



     6. In recognition that the Borrower-SPE may make EPR Senior Property Loans, own land under
development and/or enter into other activities that are permitted pursuant to other provisions of
the Loan Agreement, the following subparts of §6.1(a) of the Loan Agreement are deleted in their
entirety and are replaced by the following:




     (i) is organized solely for the purpose of acquiring, financing, owning,
holding, developing, selling, leasing, transferring, exchanging, managing and
operating the Borrowing Base Properties 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 Properties 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 Properties (including, without limitation, EPR Senior Property Loans
and property encumbered by EPR Senior First Mortgages) or other activities described
in subpart (i) immediately above;



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     (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;




     (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);




     (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 Pershing from transferring to any of its Affiliates Pershing’s ownership
interest in any of its Subsidiaries which, at the time of such transfer, no longer
own any Borrowing Base Properties;




     (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



     7. The phrase in §6.2 of the Loan Agreement which reads “and the filing of the Security
Documents in the appropriate records office with respect thereto” is deleted.



     8. Section 6.23 “Property” of the Loan Agreement is hereby amended as follows:



     (a) By inserting the following underlined phrases in sub-section (i) such that the entire
provisions reads as follows:



          “(i) All of the Borrowing Base Properties 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 or mortgagor 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 Properties 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, the applicable Leases or the
applicable EPR Senior Loan Documents, as the case may be). There are no




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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 on 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 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 of the 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;”




     (b) By inserting the following provision at the beginning of sub-sections (iv) and (vii)
therein:



          “Except with respect to that encumbered by an EPR Senior First Mortgage,...”




     9. The following provision is inserted as Section 6.31:



          “§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 Property 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 Property as of the
date of inclusion of each Borrowing Base Property as a Borrowing Base Property. 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 Property as a Borrowing Base Property, (i) in
full force and effect in accordance with their terms, (ii) without any payment default or any other
material 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 Property as a Borrowing Base Property, 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.”




     10. Section 6.33 is hereby deleted in its entirety and replaced with the following in
its stead:



     “§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 Properties for its approved use and all
appurtenant and related uses (collectively, the “Licenses”), have been obtained and are in
full force and effect.”



     11. Section 6.34 is hereby deleted in its entirety and replaced with the following in
its stead:



          “§6.34 Insurance. The Borrowing Base Properties and improvements thereon are insured
by fire and other insurance policies providing coverage and otherwise in accordance with




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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 Properties. 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.




     12. The last sentence of §7.6(b) is deleted and is replaced by the following: “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.”



     13. §7.7(b) of the Loan Agreement is deleted and is replaced by the following:



          (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 Property.




     14. A new sentence is added to the end of §7.8 of the Loan Agreement which reads as follows:
“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.”



     15. In §7.9 of the Loan Agreement, the phrase “or any EPR Mortgagor” is added after the phrase
“of any tenant”. Similarly, the phrase “or EPR Senior Loan Property Loan Documents, as the case
may be” is added in §7.9 of the Loan Agreement after the phrase “the terms of the applicable
Lease”.



     16. Section 7.12 “Management” of the Loan Agreement is hereby amended by inserting the
phrase “...nor shall it allow an EPR Mortgagor to enter...” to follow the phrase “The Borrower-SPE
shall not enter into...”



     17. The second sentence of Section 7.15 “Registered Servicemark” of the Loan Agreement
is hereby deleted in its entirety and replaced with the following in its stead:



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     “Notwithstanding the foregoing, this provision shall not prevent any applicable Tenant or
applicable EPR Mortgagor from operating a Borrowing Base Property under its trademarks and
tradenames or service marks.”



     18. Section 7.21 is hereby deleted in its entirety and replaced with the following in
its stead:



     “§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 Properties for their approved uses and all appurtenant and related uses. The
use being made of each of the Borrowing Base Properties is in conformity with the certificate of
occupancy issued for each such Borrowing Base Property.”



     19. The following provision is inserted as Section 7.22 of the Loan Agreement:



          “§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 Properties (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).




          “(f) 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 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




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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.




          “(g) 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.




          “(h) 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.”




     20. Section 8.1(B) of the Loan Agreement is hereby amended as follows by inserting the
following underlined phrases such that the entire provisions reads as follows:



          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) unsecured debt (i.e., Indebtedness that is not secured by a Lien)
pursuant to §9.1 herein; (c) Indebtedness to Agent 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 Properties; (v) voluntary or involuntary bankruptcy by a borrower; and (vi) any
environmental matter(s) affecting any Borrowing Base Properties which is introduced or caused by a
Borrower or any holder of a beneficial or ownership interest in a Borrower.




     21. In subpart (iv) of §8.2, the phrase “or EPR Senior Property Loan Documents” is added after
the phrase “encumbrances on the Real Estate permitted under the applicable Lease”.



     22. Section 8.3(h) “Restrictions on Investments” of the Loan Agreement is hereby
amended by inserting the phrase “EPR Senior Property Loans (including property encumbered by EPR
Senior First Mortgages) and,” at the beginning thereof such that the entire provision reads as
follows:



11









 





          “(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;”




     23. §8.9 of the Loan Agreement is deleted and replaced by the following:



          §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.




     24. Section 9.1 of the Loan Agreement, is hereby deleted in its entirety and replaced
with the following in its stead:



          §9.1 Borrowing Base. The outstanding principal balance of the Loans including the
Letters of Credit Outstanding plus all other unsecured debt (i.e., Indebtedness that is not
secured) of Borrowers, shall at all times not be greater than and shall at all times be in
compliance with the Borrowing Base; additionally, at no time shall the outstanding principal
balance of the Loans, including the Letters of Credit Outstanding, exceed the Maximum Commitment
Amount.”




     25. Section 9.4 of the Loan Agreement is hereby deleted in its entirety and replaced
with the following in its stead:



          “§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%.”




     26. Section 9.10 (b) of the Loan Agreement is hereby amended such that the last
sentence thereof shall be deleted in its entirety and replaced with the following in its stead:



          “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 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.




     27. The following provision is inserted as a new paragraph at the end of Section 19 of
the Loan Agreement:



12









 




“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.




     28. Schedule 3 “Eligible Real Estate Qualification Documents” is hereby amended by
adding the following item as item 6 therein, and re-numbering the current item 6 as item 7:



          “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.




     29. In Section 19 of the Loan Agreement, the reference to “Fred Kennon, CFO” is
deleted and is replaced by “Mark A. Peterson, Vice President and CFO.”


B. The Borrower represents and warrants to the Lenders and the Agent that said Borrower has the
full power and authority to execute, deliver and perform its obligations under, this Amendment and
the execution and delivery of this Amendment have been duly authorized by all necessary action of
the stockholders, members and directors and managers of the Borrower, as applicable.



C. The Borrower hereby (i) reaffirms that the Borrower remains indebted to Lenders without defense,
counterclaim or offset and no default or Event of Default or event of default has occurred or
exists under the Loan Documents (ii) restate, and reaffirm, all of their covenants, representations
and warranties set forth in the Loan Documents to the same extent as if fully set forth herein and
the Borrower hereby certifies that all such covenants, representations and warranties are true and
accurate as of the date hereof (except for any such representations or warranties which expressly
relate to a specified date, which representations and warranties were true and accurate as of such
specified date)

and (iii) acknowledges and warrants that the Borrower does not have any claims, actions or causes
of action whatsoever in law or in equity against Lenders or Agent, their officers, directors,
employees, agents, successors, subsidiaries, related companies or attorneys (for the purpose of
this paragraph, collectively referred to herein as the “Lenders”) or any of them, in
connection with or related to or arising from the Loan Documents, whether known or unknown, from
the beginning of the world to the date of this Agreement, and the Borrower for good and valuable
consideration hereby waives, remises, releases and discharges any and all rights with respect to
such claims, additions or causes of action, if any.



D. This Amendment may be executed in one or more counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this
Amendment.




13









 




E. Upon and after the date of this Amendment all references to the Loan Agreement, or in any
related document, shall mean the Loan Agreement as amended by this Amendment. Except as expressly
provided in this Amendment, the execution and delivery of this Amendment does not and will not
amend, modify or supplement any provision of, or constitute a consent to or a waiver of any
noncompliance with the provisions of the Loan Agreement, and, except as specifically provided in
this Amendment, the Loan Agreement shall remain in full force and effect in accordance with the
respective terms thereof.



F. This Amendment is executed as an instrument under seal and shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflicts of law rules.
All parts of the Loan Agreement not affected by this Amendment are hereby ratified and affirmed in
all respects, provided that if any provision of the Loan Agreement shall conflict
or be inconsistent with this Amendment, the terms of this Amendment shall supersede and prevail.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





14










 





     IN WITNESS WHEREOF, each of the Borrower and the Lenders have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the date set forth in the
preamble on page one of this Amendment.



	 	 	 	 	 	 	 
	 	 	BORROWER:	 	 
	 
	 	 	 	 	 	 
	 	 	30 WEST PERSHING, LLC,	 	 
	 	 	a Missouri limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark A. Peterson
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark A. Peterson	 	 
	 

	 	Title:
	 	Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	EPR HIALEAH, INC., a Missouri corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark A. Peterson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark A. Peterson	 	 
	 

	 	Title:
	 	Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	WESTCOL CENTER,
LLC, a Delaware limited liability
company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark A. Peterson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark A. Peterson	 	 
	 

	 	Title:
	 	Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	EPT MELBOURNE, INC., a Missouri corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	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	 	 






 









 





	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gregory W. Lane	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Gregory W. Lane	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	ROYAL BANK OF CANADA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dan Page	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Dan Page	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Donald S. Shokrian	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Donald S. Shokrian	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	EMIGRANT BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas G. Devine	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. Devine	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	MIDFIRST BANK, A
FEDERALLY CHARTERED SAVINGS
ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Todd G. Wright	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Todd G. Wright	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	UMB BANK, n.a.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert P. Elbert	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert P. Elbert	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






 









 





	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	SOVEREIGN BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ T. Gregory Donohue	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	T. Gregory Donohue	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BEARSTEARNS CORPORATE LENDING, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Keith C. Barnish	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Keith C. Barnish	 	 
	 

	 	Title:
	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BANK MIDWEST N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David L. Rambo	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	David L. Rambo	 	 
	 

	 	Title:
	 	Senior Vice President — Commercial Lending	 	 
	 
	 	 	 	 	 	 
	 	 	MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK
BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tsang-Pei Hsu	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tsang-Pei Hsu	 	 
	 

	 	Title:
	 	VP & Deputy General Manager	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Maureen Malphus	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Maureen Malphus	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tyler Miller	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tyler Miller	 	 
	 

	 	Title:
	 	Vice President