EPR PROPERTIES (Form: 10-Q, Received: 08/06/2020 09:20:36)

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial standards provided pursuant to Section 13(a) of the Exchange Act. ☐

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epr:properties iso4217:CAD iso4217:USD

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q



☒	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2020



☐	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from to

Commission file number: 001-13561

EPR PROPERTIES

(Exact name of registrant as specified in its charter)



Maryland		43-1790877
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

909 Walnut Street,	Suite 200
Kansas City,	Missouri	64106
(Address of principal executive offices)		(Zip Code)



Registrant’s telephone number, including area code:	(816)	472-1700

Securities registered pursuant to Section 12(b) of the Act:



Title of each class	Trading symbol(s)	Name of each exchange on which registered
Common shares, par value $0.01 per share	EPR	New York Stock Exchange

5.75% Series C cumulative convertible preferred shares, par value $0.01 per share	EPR PrC	New York Stock Exchange

9.00% Series E cumulative convertible preferred shares, par value $0.01 per share	EPR PrE	New York Stock Exchange

5.75% Series G cumulative redeemable preferred shares, par value $0.01 per share	EPR PrG	New York Stock Exchange

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒

At August 5, 2020, there were 74,611,864 common shares outstanding.

CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS

With the exception of historical information, certain statements contained or incorporated by reference herein may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), such as those pertaining to the uncertain financial impact of COVID-19, our capital resources and liquidity, expected liquidity and performance of our customers, including AMC, our expected dividend payments and share repurchases and our results of operations and financial condition. Forward-looking statements involve numerous risks and uncertainties and you should not rely on them as predictions of actual events. There is no assurance the events or circumstances reflected in the forward-looking statements will occur. You can identify forward-looking statements by use of words such as “will be,” “intend,” “continue,” “believe,” “may,” “expect,” “hope,” “anticipate,” “goal,” “forecast,” “pipeline,” “estimates,” “offers,” “plans,” “would,” or other similar expressions or other comparable terms or discussions of strategy, plans or intentions in this Quarterly Report on Form 10-Q. In addition, references to our budgeted amounts and guidance are forward-looking statements.

Factors that could materially and adversely affect us include, but are not limited to, the factors listed below:


•	Risks associated with the current outbreak of the novel coronavirus, or COVID-19, or the future outbreak of any other highly infectious or contagious diseases;


•	Global economic uncertainty and disruptions in financial markets;


•	Reduction in discretionary spending by consumers;


•	Adverse changes in our credit ratings;


•	Fluctuations in interest rates;


•	Defaults in the performance of lease terms by our tenants;


•	Defaults by our customers and counterparties on their obligations owed to us;


•	A borrower's bankruptcy or default;


•	Our ability to renew maturing leases on terms comparable to prior leases and/or our ability to locate substitute lessees for these properties on economically favorable terms;


•	Risks of operating in the experiential real estate industry;


•	Our ability to compete effectively;


•	Risks associated with three tenants representing a substantial portion of our lease revenues;


•	The ability of our build-to-suit tenants to achieve sufficient operating results within expected time-frames and therefore have capacity to pay their agreed upon rent;


•	Risks associated with our dependence on third-party managers to operate certain of our experiential lodging properties;


•	Risks associated with our level of indebtedness;


•	Risks associated with use of leverage to acquire properties;


•	Financing arrangements that require lump-sum payments;


•	Our ability to raise capital;


•	Covenants in our debt instruments that limit our ability to take certain actions;


•	The concentration and lack of diversification of our investment portfolio;


•	Our continued qualification as a real estate investment trust for U.S. federal income tax purposes and related tax matters;


•	The ability of our subsidiaries to satisfy their obligations;


•	Financing arrangements that expose us to funding and completion risks;


•	Our reliance on a limited number of employees, the loss of which could harm operations;


•	Risks associated with the employment of personnel by managers of our experiential lodging properties;


•	Risks associated with the gaming industry;


•	Risks associated with gaming and other regulatory authorities;


•	Delays or prohibitions of transfers of gaming properties due to required regulatory approvals;


•	Risks associated with security breaches and other disruptions;


•	Changes in accounting standards that may adversely affect our financial statements;


•	Fluctuations in the value of real estate income and investments;


•	Risks relating to real estate ownership, leasing and development, including local conditions such as an

oversupply of space or a reduction in demand for real estate in the area, competition from other available space, whether tenants and users such as customers of our tenants consider a property attractive, changes in real estate taxes and other expenses, changes in market rental rates, the timing and costs associated with property improvements and rentals, changes in taxation or zoning laws or other governmental regulation, whether we are able to pass some or all of any increased operating costs through to tenants or other customers, and how well we manage our properties;


•	Our ability to secure adequate insurance and risk of potential uninsured losses, including from natural disasters;


•	Risks involved in joint ventures;


•	Risks in leasing multi-tenant properties;


•	A failure to comply with the Americans with Disabilities Act or other laws;


•	Risks of environmental liability;


•	Risks associated with the relatively illiquid nature of our real estate investments;


•	Risks with owning assets in foreign countries;


•	Risks associated with owning, operating or financing properties for which the tenants', mortgagors' or our operations may be impacted by weather conditions, climate change and natural disasters;


•	Risks associated with the development, redevelopment and expansion of properties and the acquisition of other real estate related companies;


•	Our ability to pay dividends in cash or at current rates;


•	Fluctuations in the market prices for our shares;


•	Certain limits on changes in control imposed under law and by our Declaration of Trust and Bylaws;


•	Policy changes obtained without the approval of our shareholders;


•	Equity issuances that could dilute the value of our shares;


•	Future offerings of debt or equity securities, which may rank senior to our common shares;


•	Risks associated with changes in foreign exchange rates; and


•	Changes in laws and regulations, including tax laws and regulations.

Our forward-looking statements represent our intentions, plans, expectations and beliefs and are subject to numerous assumptions, risks and uncertainties. Many of the factors that will determine these items are beyond our ability to control or predict. For further discussion of these factors see Item 1A - "Risk Factors" in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the Securities and Exchange Commission ("SEC") on May 11, 2020.

For these statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. You are cautioned not to place undue reliance on our forward-looking statements, which speak only as of the date of this Quarterly Report on Form 10-Q or the date of any document incorporated by reference herein. All subsequent written and oral forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except as required by law, we do not undertake any obligation to release publicly any revisions to our forward-looking statements to reflect events or circumstances after the date of this Quarterly Report on Form 10-Q.

TABLE OF CONTENTS



			Page

PART I			1

	Item 1.	Financial Statements	1
	Item 2.	Management's Discussion and Analysis of Financial Condition and Results of Operations	35
	Item 3.	Quantitative and Qualitative Disclosures About Market Risk	54
	Item 4.	Controls and Procedures	55

PART II			55

	Item 1.	Legal Proceedings	55
	Item 1A.	Risk Factors	55
	Item 2.	Unregistered Sale of Equity Securities and Use of Proceeds	56
	Item 3.	Defaults Upon Senior Securities	57
	Item 4.	Mine Safety Disclosures	57
	Item 5.	Other Information	57
	Item 6.	Exhibits	58

iii

PART I - FINANCIAL INFORMATION

Item 1. Financial Statements

EPR PROPERTIES Consolidated Balance Sheets (Dollars in thousands except share data)

	June 30, 2020			December 31, 2019
	(unaudited)
Assets
Real estate investments, net of accumulated depreciation of $1,034,771 and $989,254 at June 30, 2020 and December 31, 2019, respectively	$	5,110,059		$	5,197,308
Land held for development	26,244			28,080
Property under development	39,039			36,756
Operating lease right-of-use assets	189,058			211,187
Mortgage notes and related accrued interest receivable	357,668			357,391
Investment in joint ventures	28,925			34,317
Cash and cash equivalents	1,006,981			528,763
Restricted cash	2,615			2,677
Accounts receivable	134,774			86,858
Other assets	107,615			94,174
Total assets	$	7,002,978		$	6,577,511
Liabilities and Equity
Liabilities:
Accounts payable and accrued liabilities	$	96,454		$	122,939
Operating lease liabilities	229,030			235,650
Common dividends payable	19			29,424
Preferred dividends payable	6,034			6,034
Unearned rents and interest	81,096			74,829
Debt	3,854,088			3,102,830
Total liabilities	4,266,721			3,571,706
Equity:
Common Shares, $.01 par value; 100,000,000 shares authorized; and 81,903,786 and 81,588,489 shares issued at June 30, 2020 and December 31, 2019, respectively	819			816
Preferred Shares, $.01 par value; 25,000,000 shares authorized:
5,394,050 Series C convertible shares issued at June 30, 2020 and December 31, 2019; liquidation preference of $134,851,250	54			54
3,447,381 Series E convertible shares issued at June 30, 2020 and December 31, 2019; liquidation preference of $86,184,525	34			34
6,000,000 Series G shares issued at June 30, 2020 and December 31, 2019; liquidation preference of $150,000,000	60			60
Additional paid-in-capital	3,848,984			3,834,858
Treasury shares at cost: 7,290,948 and 3,125,569 common shares at June 30, 2020 and December 31, 2019, respectively	(260,351		)	(147,435		)
Accumulated other comprehensive income	(4,331		)	7,275
Distributions in excess of net income	(849,012		)	(689,857		)
Total equity	$	2,736,257		$	3,005,805
Total liabilities and equity	$	7,002,978		$	6,577,511

See accompanying notes to consolidated financial statements.

EPR PROPERTIES Consolidated Statements of (Loss) Income and Comprehensive (Loss) Income (Unaudited) (Dollars in thousands except per share data)

	Three Months Ended June 30,						Six Months Ended June 30,
	2020			2019			2020			2019
Rental revenue	$	97,531		$	147,003		$	232,574		$	287,295
Other income	416			5,726			7,989			6,070
Mortgage and other financing income	8,413			9,011			16,809			18,902
Total revenue	106,360			161,740			257,372			312,267
Property operating expense	15,329			14,597			28,422			30,148
Other expense	2,798			8,091			12,332			8,091
General and administrative expense	10,432			12,230			21,420			23,940
Severance expense	—			—			—			420
Costs associated with loan refinancing or payoff	820			—			820			—
Interest expense, net	38,340			36,458			73,093			70,421
Transaction costs	771			6,923			1,846			12,046
Credit loss expense	3,484			—			4,676			—
Impairment charges	51,264			—			51,264			—
Depreciation and amortization	42,450			38,790			86,260			74,792
(Loss) income before equity in (loss) income from joint ventures, other items and discontinued operations	(59,328		)	44,651			(22,761		)	92,409
Equity in (loss) income from joint ventures	(1,724		)	470			(2,144		)	959
Impairment charges on joint ventures	(3,247		)	—			(3,247		)	—
Gain (loss) on sale of real estate	22			—			242			(388		)
(Loss) income before income taxes	(64,277		)	45,121			(27,910		)	92,980
Income tax benefit	1,312			1,300			2,063			1,905
(Loss) income from continuing operations	$	(62,965	)	$	46,421		$	(25,847	)	$	94,885
Discontinued operations:
Income from discontinued operations before other items	—			10,399			—			20,568
Gain on sale of real estate from discontinued operations	—			9,774			—			16,490
Income from discontinued operations	—			20,173			—			37,058
Net (loss) income	(62,965		)	66,594			(25,847		)	131,943
Preferred dividend requirements	(6,034		)	(6,034		)	(12,068		)	(12,068		)
Net (loss) income available to common shareholders of EPR Properties	$	(68,999	)	$	60,560		$	(37,915	)	$	119,875
Net (loss) income available to common shareholders of EPR Properties per share:
Continuing operations	$	(0.90	)	$	0.53		$	(0.49	)	$	1.10
Discontinued operations	—			0.27			—			0.49
Basic	$	(0.90	)	$	0.80		$	(0.49	)	$	1.59

Continuing operations	$	(0.90	)	$	0.53		$	(0.49	)	$	1.10
Discontinued operations	—			0.26			—			0.49
Diluted	$	(0.90	)	$	0.79		$	(0.49	)	$	1.59
Shares used for computation (in thousands):
Basic	76,310			76,164			77,388			75,426
Diluted	76,310			76,199			77,388			75,467

Other comprehensive (loss) income:
Net (loss) income	$	(62,965	)	$	66,594		$	(25,847	)	$	131,943
Foreign currency translation adjustment	7,284			3,972			(9,211		)	7,782
Change in net unrealized loss on derivatives	(6,326		)	(7,195		)	(2,395		)	(14,693		)
Comprehensive (loss) income attributable to EPR Properties	$	(62,007	)	$	63,371		$	(37,453	)	$	125,032

See accompanying notes to consolidated financial statements.

EPR PROPERTIES Consolidated Statements of Changes in Equity (Unaudited) (Dollars in thousands, except per share data)

	EPR Properties Shareholders’ Equity
	Common Stock			Preferred Stock			Additional paid-in capital		Treasury shares			Accumulated other comprehensive income (loss)			Distributions in excess of net income			Total
	Shares	Par		Shares	Par		Additional paid-in capital		Treasury shares			Accumulated other comprehensive income (loss)			Distributions in excess of net income			Total
Balance at December 31, 2018	77,226,443	$	772	14,841,431	$	148	$	3,504,494	$	(130,728	)	$	12,085		$	(521,748	)	$	2,865,023
Restricted share units issued to Trustees	1,156	—		—	—		—		—			—			—			—
Issuance of nonvested shares, net of cancellations	197,755	2		—	—		4,831		(403		)	—			—			4,430
Purchase of common shares for vesting	—	—		—	—		—		(9,499		)	—			—			(9,499		)
Share-based compensation expense	—	—		—	—		3,177		—			—			—			3,177
Share-based compensation included in severance expense	—	—		—	—		103		—			—			—			103
Foreign currency translation adjustment	—	—		—	—		—		—			3,810			—			3,810
Change in unrealized gain on derivatives	—	—		—	—		—		—			(7,498		)	—			(7,498		)
Net income	—	—		—	—		—		—			—			65,349			65,349
Issuances of common shares	1,064,600	11		—	—		78,982		—			—			—			78,993
Stock option exercises, net	111,815	1		—	—		5,543		(6,276		)	—			—			(732		)
Dividends to common shareholders ($1.125 per share)	—	—		—	—		—		—			—			(84,343		)	(84,343		)
Dividends to Series C preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series E preferred shareholders ($0.5625 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series G preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(2,156		)	(2,156		)
Balance at March 31, 2019	78,601,769	$	786	14,841,431	$	148	$	3,597,130	$	(146,906	)	$	8,397		$	(546,776	)	$	2,912,779

Restricted share units issued to Trustees	26,236	—		—	—		—		—			—			—			—
Issuance of nonvested shares, net of cancellations	11,000	—		—	—		95		(95		)	—			—			—
Share-based compensation expense	—	—		—	—		3,283		—			—			—			3,283
Foreign currency translation adjustment	—	—		—	—		—		—			3,972			—			3,972
Change in unrealized loss on derivatives	—	—		—	—		—		—			(7,195		)	—			(7,195		)
Net income	—	—		—	—		—		—			—			66,594			66,594
Issuances of common shares	2,033,530	21		—	—		157,575		—			—			—			157,596
Stock option exercises, net	5,198	—		—	—		142		(142		)	—			—			—
Dividends to common shareholders ($1.125 per share)	—	—		—	—		—		—			—			(86,097		)	(86,097		)
Dividends to Series C preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series E preferred shareholders ($0.5625 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series G preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(2,156		)	(2,156		)
Balance at June 30, 2019	80,677,733	$	807	14,841,431	$	148	$	3,758,225	$	(147,143	)	$	5,174		$	(572,313	)	$	3,044,898

Continued on next page.



	EPR Properties Shareholders’ Equity
	Common Stock			Preferred Stock			Additional paid-in capital		Treasury shares			Accumulated other comprehensive income (loss)			Distributions in excess of net income			Total
Continued from previous page.	Shares	Par		Shares	Par		Additional paid-in capital		Treasury shares			Accumulated other comprehensive income (loss)			Distributions in excess of net income			Total
Balance at December 31, 2019	81,588,489	$	816	14,841,431	$	148	$	3,834,858	$	(147,435	)	$	7,275		$	(689,857	)	$	3,005,805
Issuance of nonvested shares, net of cancellations	211,549	2		—	—		6,221		(90		)	—			—			6,133
Purchase of common shares for vesting	—	—		—	—		—		(6,769		)	—			—			(6,769		)
Share-based compensation expense	—	—		—	—		3,509		—			—			—			3,509
Foreign currency translation adjustment	—	—		—	—		—		—			(16,495		)	—			(16,495		)
Change in unrealized loss on derivatives	—	—		—	—		—		—			3,931			—			3,931
Credit loss expense for implementation of Current Expected Credit Loss standard	—	—		—	—		—		—			—			(2,163		)	(2,163		)
Net income	—	—		—	—		—		—			—			37,118			37,118
Issuances of common shares	10,368	—		—	—		442		—			—			—			442
Stock option exercises, net	1,410	—		—	—		63		(63		)	—			—			—
Dividends to common shareholders ($1.1325 per share)	—	—		—	—		—		—			—			(88,996		)	(88,996		)
Dividends to Series C preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series E preferred shareholders ($0.5625 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series G preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(2,156		)	(2,156		)
Balance at March 31, 2020	81,811,816	$	818	14,841,431	$	148	$	3,845,093	$	(154,357	)	$	(5,289	)	$	(749,932	)	$	2,936,481

Restricted share units issued to Trustees	74,767	1		—	—		—		—			—			—			1
Share-based compensation expense	—	—		—	—		3,463		—			—			—			3,463
Foreign currency translation adjustment	—	—		—	—		—		—			7,284			—			7,284
Change in unrealized loss on derivatives	—	—		—	—		—		—			(6,326		)	—			(6,326		)
Net loss	—	—		—	—		—		—			—			(62,965		)	(62,965		)
Issuances of common shares	17,203	—		—	—		428		—			—			—			428
Repurchase of common shares	—	—		—	—		—		(105,994		)	—			—			(105,994		)
Dividend equivalents accrued on performance shares	—	—		—	—		—		—			—			(19		)	(19		)
Dividends to common shareholders ($0.3825 per share)	—	—		—	—		—		—			—			(30,062		)	(30,062		)
Dividends to Series C preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series E preferred shareholders ($0.5625 per share)	—	—		—	—		—		—			—			(1,939		)	(1,939		)
Dividends to Series G preferred shareholders ($0.359375 per share)	—	—		—	—		—		—			—			(2,156		)	(2,156		)
Balance at June 30, 2020	81,903,786	$	819	14,841,431	$	148	$	3,848,984	$	(260,351	)	$	(4,331	)	$	(849,012	)	$	2,736,257

See accompanying notes to consolidated financial statements.

EPR PROPERTIES Consolidated Statements of Cash Flows (Unaudited) (Dollars in thousands)

	Six Months Ended June 30,
	2020			2019
Operating activities:
Net (loss) income	$	(25,847	)	$	131,943
Adjustments to reconcile net (loss) income to net cash provided by operating activities:
Impairment charges	51,264			—
Impairment charges on joint ventures	3,247			—
Gain on sale of real estate	(242		)	(16,102		)
Deferred income tax benefit	(2,789		)	(2,284		)
Costs associated with loan refinancing or payoff	820			—
Equity in loss (income) from joint ventures	2,144			(959		)
Distributions from joint ventures	—			112
Credit loss expense	4,676			—
Depreciation and amortization	86,260			82,098
Amortization of deferred financing costs	3,285			3,019
Amortization of above/below market leases and tenant allowances, net	(260		)	(117		)
Share-based compensation expense to management and Trustees	6,972			6,563
Change in assets and liabilities:
Operating lease assets and liabilities	560			(290		)
Mortgage notes accrued interest receivable	(3,125		)	(1,544		)
Accounts receivable	(48,014		)	12,435
Direct financing leases receivable	—			(117		)
Other assets	(5,273		)	(5,434		)
Accounts payable and accrued liabilities	(20,072		)	50
Unearned rents and interest	3,807			383
Net cash provided by operating activities	57,413			209,756
Investing activities:
Acquisition of and investments in real estate and other assets	(28,585		)	(418,114		)
Proceeds from sale of real estate	3,839			95,958
Investment in unconsolidated joint ventures	—			(325		)
Investment in mortgage notes receivable	(3,667		)	(33,074		)
Proceeds from mortgage notes receivable paydowns	94			1,954
Investment in promissory notes receivable	—			(9,068		)
Proceeds from promissory note receivable paydown	69			3,574
Additions to properties under development	(24,728		)	(102,101		)
Net cash used by investing activities	(52,978		)	(461,196		)
Financing activities:
Proceeds from debt facilities and senior unsecured notes	750,000			422,000
Principal payments on debt	—			(218,150		)
Deferred financing fees paid	(2,859		)	(276		)
Costs associated with loan refinancing or payoff	(820		)	—
Net proceeds from issuance of common shares	713			231,407
Impact of stock option exercises, net	—			(732		)
Purchase of common shares for treasury for vesting	(6,769		)	(9,499		)
Purchase of common shares under share repurchase program	(105,994		)	—
Dividends paid to shareholders	(160,392		)	(179,989		)
Net cash provided by financing activities	473,879			244,761
Effect of exchange rate changes on cash	(158		)	109
Net change in cash and cash equivalents and restricted cash	478,156			(6,570		)
Cash and cash equivalents and restricted cash at beginning of the period	531,440			18,507
Cash and cash equivalents and restricted cash at end of the period	$	1,009,596		$	11,937
Supplemental information continued on next page.

EPR PROPERTIES Consolidated Statements of Cash Flows (Unaudited) (Dollars in thousands)

Continued from previous page
	Six Months Ended June 30,
	2020			2019
Reconciliation of cash and cash equivalents and restricted cash:
Cash and cash equivalents at beginning of the period	$	528,763		$	5,872
Restricted cash at beginning of the period	2,677			12,635
Cash and cash equivalents and restricted cash at beginning of the period	$	531,440		$	18,507

Cash and cash equivalents at end of the period	$	1,006,981		$	6,927
Restricted cash at end of the period	2,615			5,010
Cash and cash equivalents and restricted cash at end of the period	$	1,009,596		$	11,937

Supplemental schedule of non-cash activity:
Transfer of property under development to real estate investments	$	20,089		$	282,275
Issuance of nonvested shares and restricted share units at fair value, including nonvested shares issued for payment of bonuses	$	19,956		$	17,590
Credit loss expense related to adoption of ASC Topic 326	$	2,163		$	—
Amounts related to adoption of ASC Topic 842:
Operating lease right-of-use assets	$	—		$	227,355
Operating lease liabilities	$	—		$	251,934
Sub-lessor straight-line rent receivable	$	—		$	24,454
Acquisition of real estate in exchange for assumption of debt at fair value	$	—		$	14,000
Assumption of debt	$	—		$	18,585
Supplemental disclosure of cash flow information:
Cash paid during the period for interest	$	72,096		$	70,954
Cash paid during the period for income taxes	$	497		$	1,066
Interest cost capitalized	$	504		$	4,667
Change in accrued capital expenditures	$	(9,576	)	$	8,854

See accompanying notes to consolidated financial statements.

EPR PROPERTIES

Notes to Consolidated Financial Statements (Unaudited)

1. Organization

Description of Business

EPR Properties (the Company) was formed on August 22, 1997 as a Maryland real estate investment trust (REIT), and an initial public offering of the Company's common shares of beneficial interest (“common shares”) was completed on November 18, 1997. Since that time, the Company has been a leading Experiential net lease REIT specializing in select enduring experiential properties. The Company's underwriting is centered on key industry and property cash flow criteria, as well as the credit metrics of the Company's tenants and customers. The Company’s properties are located in the United States and Canada.

2. Summary of Significant Accounting Policies and Recently Issued Accounting Standards

Basis of Presentation

The accompanying unaudited consolidated financial statements of the Company have been prepared in accordance with U.S. generally accepted accounting principles (GAAP) for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. In preparing the consolidated financial statements, management is required to make estimates and assumptions that affect the reported amounts of assets and liabilities as of the date of the balance sheet and revenues and expenses for the period. Actual results could differ significantly from those estimates. In addition, operating results for the six month period ended June 30, 2020 are not necessarily indicative of the results that may be expected for the year ending December 31, 2020. Amounts as of December 31, 2019 have been derived from the audited consolidated financial statements as of that date and should be read in conjunction with the consolidated financial statements and footnotes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 2019 filed with the Securities and Exchange Commission (SEC) on February 25, 2020.

The Company consolidates certain entities when it is deemed to be the primary beneficiary in a variable interest entity (VIE) in which it has a controlling financial interest in accordance with the consolidation guidance of the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC). The equity method of accounting is applied to entities in which the Company is not the primary beneficiary as defined in the FASB ASC Topic on Consolidation (Topic 810) but can exercise influence over the entity with respect to its operations and major decisions.

The Company’s variable interest in VIEs currently are in the form of equity ownership and loans provided by the Company to a VIE or other partner. The Company examines specific criteria and uses its judgment when determining if the Company is the primary beneficiary of a VIE. The primary beneficiary generally is defined as the party with the controlling financial interest. Consideration of various factors include, but are not limited to, the Company’s ability to direct the activities that most significantly impact the entity’s economic performance and its obligation to absorb losses from or right to receive benefits of the VIE that could potentially be significant to the VIE. As of June 30, 2020 and December 31, 2019, the Company does not have any investments in consolidated VIEs.

Risks and Uncertainties

On March 11, 2020, the World Health Organization declared a novel strain of coronavirus (COVID-19) a pandemic, and on March 13, 2020, the United States declared a national emergency with respect to COVID-19. The Company is subject to risks and uncertainties as a result of the COVID-19 pandemic. The extent of the impact of COVID-19 on the Company’s business is highly uncertain and difficult to predict, as information is rapidly evolving. The outbreak of COVID-19 has severely impacted global economic activity and caused significant volatility and negative pressure in financial markets. The global impact of the outbreak has been rapidly evolving and many jurisdictions within the United States and abroad have reacted by instituting quarantines, mandating business and school closures and restricting travel. As a result, the COVID-19 pandemic is negatively impacting almost every industry directly or indirectly and is severely impacting experiential real estate properties given that such properties rely on social interaction and discretionary consumer spending. Substantially all the Company's customers' operations were temporarily closed for a portion of or all of the three months ended June 30, 2020. Certain of these customers' operations remain closed, while others have

implemented re-opening plans. Specifically, most of the Company's theatre tenants have not reopened their locations. The severity of the impact of COVID-19 on the Company’s business will depend on a number of factors, including, but not limited to, the duration and severity of the pandemic and the extent and severity of the impact on consumers and our customers, all of which are uncertain and cannot be predicted. COVID-19 has negatively affected, and COVID-19 (or a future pandemic) could have material and adverse effects on, the Company's ability to successfully operate and on its financial condition, results of operations and cash flows.

The Company’s consolidated financial statements reflect estimates and assumptions made by management that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and reported amounts of revenue and expenses during the reporting periods presented. The Company considered the impact of COVID-19 on the assumptions and estimates used in determining the Company’s financial condition and results of operations for the six months ended June 30, 2020. The following were adverse impacts to its financial statements during the six months ended June 30, 2020:


•	The Company recognized straight-line write-offs totaling $13.0 million, which were comprised of $5.0 million of straight-line accounts receivable and $8.0 million of sub-lessor ground lease straight-line accounts receivable. Straight-line rental revenue, net of write-offs, was a reduction to total rental revenue of $7.5 million for the six months ended June 30, 2020.


•	The Company increased its expected credit losses by $4.7 million from its implementation estimate of $2.2 million. This increase was primarily the result of increased fundings and the economic uncertainty and the rapidly changing environment surrounding the COVID-19 pandemic.


•	The Company reduced rental revenue by $4.9 million due to contractual rent abatements and $3.8 million for rent concessions for certain of its tenants due to COVID-19.

•

The Company deferred approximately $60.0 million of amounts due from tenants and $3.5 million due from borrowers that were booked as receivables and approximately $41.0 million of amounts due from tenants that were not booked as receivables as the full amounts were not deemed probable of collection as a result of COVID-19 pandemic. The amounts not booked as receivables remain obligations of the tenants and will be recognized as revenue when received. The repayment terms for all of these deferments vary by tenant or borrower and several are still being negotiated.


•	For the six months ended June 30, 2020, the Company recognized revenue from American-Multi Cinema, Inc. (AMC) as well as several smaller tenants on a cash basis. See Note 18 for additional details on the agreements entered into with AMC on July 31, 2020.


•	The Company recognized $51.3 million in impairment charges during the three and six months ended June 30, 2020, which was comprised of $36.3 million of impairments of real estate investments, and $15.0 million of impairments of operating lease right-of-use assets.


•	The Company recognized impairment charges on joint ventures of $3.2 million related to its equity investments in three theatres projects located in China.


•	On March 20, 2020, the Company borrowed $750.0 million under its unsecured revolving credit facility as a precautionary measure to increase the Company's cash position and preserve financial flexibility given the global uncertainty caused by the COVID-19 pandemic.

On June 29, 2020, the Company amended its Consolidated Credit Agreement, which governs its unsecured revolving credit facility and its unsecured term loan facility, and its Note Purchase Agreement, which governs its private placement notes. The amendments modified certain provisions and waived the Company's obligation to comply with certain covenants under these debt agreements in light of the continuing financial and operational impacts of the COVID-19 pandemic on the Company and its tenants and borrowers. The modifications are generally effective during the covenant relief period, which is defined as the period of time beginning June 29, 2020 and ending on the earlier of (i) April 1, 2021 or (ii) the date on which the Company provides notice that it elects to terminate the covenant relief period, subject to certain conditions. See Note 8 for additional details.

On the effective date of the amendments, June 29, 2020, the Company suspended its share repurchase plan. Prior to the effective date, during the six months ended June 30, 2020, the Company repurchased 4,066,716 common shares under the share repurchase program for approximately $106.0 million. The repurchases were made under a Rule 10b5-1 trading plan.

The monthly cash dividends to common shareholders were suspended following the common share dividend paid on May 15, 2020 to shareholders of record as of April 30, 2020. The suspension of the monthly cash dividend to common shareholders will continue through the covenant relief period, except as may be necessary to maintain REIT status and to not owe income tax.

In March 2020, the Company's employees transitioned to a fully remote work force to protect the safety and well-being of the Company's personnel. The Company's prior investments in technology, business continuity planning and cyber-security protocols have enabled the Company to continue working with limited operational impacts.

Recently Adopted Accounting Pronouncements

On January 1, 2020, Accounting Standards Update (ASU) No. 2016-13, Measurement of Credit Losses on Financial Instruments (Topic 326) became effective for the Company. The Company adopted the standard on the effective date and used the effective date as the date of initial application. Accordingly, comparative periods have not been recast, and disclosures required under the new standard will not be provided for dates and periods before January 1, 2020. On the effective date, the Company recognized credit loss expense through retained earnings and the corresponding allowance for credit losses of approximately $2.2 million, which was comprised of $2.1 million related to mortgage notes receivable and $0.1 million related to notes receivable (which are presented within other assets in the accompanying consolidated balance sheet). See Note 6 for information related to the Company's measurement of credit losses on its mortgage notes and notes receivable.

On April 10, 2020, the FASB issued a Staff Q&A on Topic 842 and Topic 840: Accounting for Lease Concessions Related to the Effects of the COVID-19 Pandemic. The purpose of this Staff Q&A was to respond to frequently asked questions about accounting for lease concessions related to the effects of the COVID-19 pandemic. In response to the Staff Q&A, the Company elected to not assess deferrals and rent concessions occurring during the period effected by the COVID-19 pandemic as lease modifications. The Company continues to evaluate the impacts of COVID-19 on the Company's lease accounting and related processes. See Rental Revenue below for further information on the Company's accounting for deferrals and other lease modifications.

Reportable Segments

The Company has two reportable operating segments: Experiential and Education. The Experiential segment includes the following property types: theatres, eat & play (including seven theatres located in entertainment districts), attractions, ski, experiential lodging, gaming, cultural and fitness & wellness. The Education segment includes the following property types: early childhood education centers and private schools. See Note 16 for financial information related to these reportable segments.

Real Estate Investments

Real estate investments are carried at initial recorded value less accumulated depreciation. Costs incurred for the acquisition and development of the properties are capitalized. Depreciation is computed using the straight-line method over the estimated useful lives of the assets, which generally are estimated to be 30 years to 40 years for buildings, three years to 25 years for furniture, fixtures and equipment and 10 years to 20 years for site improvements. Tenant improvements, including allowances, are depreciated over the shorter of the lease term or the estimated useful life and leasehold interests are depreciated over the useful life of the underlying ground lease.

Management reviews a property for impairment whenever events or changes in circumstances indicate that the carrying value of a property may not be recoverable, which is based on an estimate of undiscounted future cash flows expected to result from its use and eventual disposition. If impairment exists due to the inability to recover the carrying value of the property, an impairment loss is recorded to the extent that the carrying value of the property exceeds its estimated fair value.

The Company evaluates the held-for-sale classification of its real estate as of the end of each quarter. Assets that are classified as held for sale are recorded at the lower of their carrying amount or fair value less costs to sell and are generally classified as held for sale once management has initiated an active program to market them for sale and it is probable the assets will be sold within one year. On occasion, the Company will receive unsolicited offers from third

parties to buy individual Company properties. Under these circumstances, the Company will classify the properties as held for sale when a sales contract is executed with no contingencies and the prospective buyer has funds at risk to ensure performance.

Real Estate Acquisitions

Upon acquisition of real estate properties, the Company evaluates the acquisition to determine if it is a business combination or an asset acquisition.

If the acquisition is determined to be an asset acquisition, the Company records the purchase price and other related costs incurred to the acquired tangible assets and identified intangible assets and liabilities on a relative fair value basis. In addition, costs incurred for asset acquisitions including transaction costs, are capitalized.

If the acquisition is determined to be a business combination, the Company records the fair value of acquired tangible assets and identified intangible assets and liabilities as well as any noncontrolling interest. Acquisition-related costs in connection with business combinations are expensed as incurred and included in transaction costs in the accompanying consolidated statements of (loss) income and comprehensive (loss) income.

For real estate acquisitions (asset acquisitions or business combinations), the fair value (or relative fair value in an asset acquisition) of the tangible assets is determined by valuing the property using recent independent appraisals or methods similar to those used by independent appraisers. Land is valued using the sales comparison approach which uses available market data from recent comparable land sales as an input to estimate the fair value. Site improvements and tenant improvements are valued using the cost approach which uses replacement cost data obtained from industry recognized guides less depreciation as an input to estimate the fair value. The building is valued either using the cost approach described above or a combination of the cost and the income approach. The income approach uses market leasing assumptions to estimate the fair value of the property as if vacant. The cost and income approaches are reconciled to arrive at an estimated building fair value.

Deferred Financing Costs

Deferred financing costs are amortized over the terms of the related debt obligations or mortgage note receivable as applicable. Deferred financing costs of $35.9 million and $37.2 million as of June 30, 2020 and December 31, 2019, respectively, are shown as a reduction of debt. The deferred financing costs of $4.3 million and $3.5 million as of June 30, 2020 and December 31, 2019, respectively, related to the unsecured revolving credit facility are included in other assets.

Rental Revenue

The Company leases real estate to its tenants primarily under leases that are predominately classified as operating leases. The Company's leases generally provide for rent escalations throughout the lease terms. Rents that are fixed are recognized on a straight-line basis over the lease term. Base rent escalations that include a variable component are recognized upon the occurrence of the specified event as defined in the Company's lease agreements. Many of the Company's leasing arrangements include options to extend the lease, which are not included in the minimum lease terms unless it is reasonably certain to be exercised. Straight-line rental revenue is subject to an evaluation for collectibility, and the Company records a direct write-off against rental revenue if collectibility of these future rents is not probable. For the six months ended June 30, 2020, the Company recognized straight-line write-offs totaling $13.0 million, which were comprised of $5.0 million of straight-line accounts receivable and $8.0 million of sub-lessor ground lease straight-line accounts receivable. Straight-line rental revenue, net of write-offs, was a reduction to total rental revenue of $7.5 million for the six months ended June 30, 2020. For the six months ended June 30, 2019, the Company recognized $1.4 million (of which $1.2 million has been classified within discontinued operations) of straight-line write-offs and total straight-line rental revenue net of these write-offs was $5.6 million (of which $0.9 million has been classified within discontinued operations).

rent concessions during the period effected by the COVID-19 pandemic as lease modifications. While deferments for this and future periods delay rent payments, these deferments generally do not release customers from the obligation to pay the deferred amounts in the future. Deferred rent amounts will be reflected in the Company's financial statements as accounts receivable if collection is determined to be probable or will be recognized when received as variable lease payments if collection is determined to not be probable. Certain agreements with tenants where remaining lease terms are extended or changes are made to rent outside of the period impacted by COVID-19 are treated as lease modifications. In these circumstances, upon an executed lease modification, if the tenant is not being recognized on a cash basis, the contractual rent reflected in accounts receivable and straight-line rent receivable will be amortized over the remaining term of the lease against rental revenue. In limited cases, customers may be entitled to the abatement of rent during governmentally imposed prohibitions on business operations which is recognized in the period to which it relates, or the Company may provide rent concessions to tenants. In cases where the Company provides concessions to tenants to which they are not otherwise entitled, those amounts will be recognized in the period in which the concession is granted unless the changes are accounted for as lease modifications. The Company will continue to evaluate the impacts of COVID-19 on the Company's lease receivables and related accounting processes.

Most of the Company’s lease contracts are triple-net leases, which require the tenants to make payments to third parties for lessor costs (such as property taxes and insurance) associated with the properties. In accordance with Topic 842, the Company does not include these payments made by the lessees to third parties in rental revenue or property operating expenses. In certain situations, the Company pays these lessor costs directly to third-parties and the tenants reimburse the Company. In accordance with Topic 842, these payments are presented on a gross basis in rental revenue and property operating expense. During the six months ended June 30, 2020 and 2019, the Company recognized $0.9 million and $4.3 million, respectively, in tenant reimbursements related to the gross up of these reimbursed expenses which are included in rental revenue.

Certain of the Company's leases, particularly at its entertainment districts, require the tenants to make payments to the Company for property related expenses such as common area maintenance. The Company has elected to combine these non-lease components with the lease components in rental revenue. For the six months ended June 30, 2020 and 2019, the non-lease components included in rental revenue totaled $7.0 million and $7.6 million, respectively.

In addition, most of the Company's tenants are subject to additional rents if gross revenues of the properties exceed certain thresholds defined in the lease agreements (percentage rents). Percentage rents are recognized at the time when specific parameters have been met as provided by the lease agreement. Rental revenue included percentage rents of $4.2 million and $5.5 million for the six months ended June 30, 2020 and 2019, respectively.

The Company regularly evaluates the collectibility of its receivables on a lease by lease basis. The evaluation primarily consists of reviewing past due account balances and considering such factors as the credit quality of the Company's tenants, historical trends of the tenant and/or other debtor, current economic conditions and changes in customer payment terms. When the collectibility of lease receivables or future lease payments are no longer probable, the Company records a direct write-off of the receivable to rental revenue and recognizes future rental revenue on a cash basis.

Property Sales

Sales of real estate properties are recognized when a contract exists and the purchaser has obtained control of the property. Gains on sales of properties are recognized in full in a partial sale of nonfinancial assets, to the extent control is not retained. Any noncontrolling interest retained by the seller would, accordingly, be measured at fair value.

The Company evaluates each sale or disposal transaction to determine if it meets the criteria to qualify as discontinued operations. A discontinued operation is a component of an entity or group of components that have been disposed of or are classified as held for sale and represent a strategic shift that has or will have a major effect on the Company's operations and financial results. If the sale or disposal transaction does not meet the criteria, the operations and related gain or loss on sale is included in income from continuing operations. Certain reclassifications have been made to prior period amounts to conform to the current period presentation for assets that qualify for presentation as discontinued operations.

Mortgage Notes and Other Notes Receivable

Mortgage notes and other notes receivable, including related accrued interest receivable, consist of loans originated by the Company and the related accrued and unpaid interest income as of the balance sheet date. Mortgage notes and other notes receivable are initially recorded at the amount advanced to the borrower less allowance for credit loss. Interest income is recognized using the effective interest method based on the stated interest rate over the estimated life of the note. Premiums and discounts are amortized or accreted into income over the estimated life of the note using the effective interest method.

The Company adopted Topic 326 effective January 1, 2020, which requires allowance for credit losses to be recorded to reflect that all mortgage notes and notes receivable have some inherent risk of loss regardless of credit quality, collateral, or other mitigating factors. While Topic 326 does not require any particular method for determining the reserves, it does specify that it should be based on relevant information about past events, including historical loss experience, current portfolio and market conditions, as well as reasonable and supportable forecasts for the term of each mortgage note or note receivable. The Company uses a forward looking commercial real estate forecasting tool to estimate its current expected credit losses (CECL) for each of its mortgage notes and notes receivable on a loan by loan basis. The CECL allowance required by Topic 326 is a valuation account that is deducted from the related mortgage note or note receivable.

Certain of the Company’s mortgage notes and notes receivable include commitments to fund incremental amounts to its borrowers. These future funding commitments are also subject to the CECL model. The allowance related to future funding is recorded as a liability and is included in Accounts payable and accrued liabilities in the accompanying consolidated balance sheet.

As permitted under Topic 326, the Company made an accounting policy election to not measure an allowance for credit losses for accrued interest receivables related to its mortgage notes and notes receivable. Accordingly, if accrued interest receivable is deemed to be uncollectible, the Company will record any necessary write-offs as a reversal of interest income. As of June 30, 2020, the Company believes that all accrued interest is collectible.

In the event the Company has a past due mortgage note or note receivable and foreclosure is probable, the Company measures expected credit losses based on the fair value of the collateral. The Company evaluates the collectability of both interest and principal for each of its mortgage notes and notes receivable on a quarterly basis to determine if foreclosure is probable. As of June 30, 2020, the Company does not have any mortgage notes receivable with past due principal balances.

Mortgage and Other Financing Income

Certain of the Company's borrowers are subject to additional interest based on certain thresholds defined in the mortgage agreements (participating interest). Participating interest income is recognized at the time when specific parameters have been met as provided by the mortgage agreement. There was no participating interest income for the six months ended June 30, 2020 and 2019. For the six months ended June 30, 2019, mortgage and other financing income included $0.9 million in prepayment fees related to mortgage notes that were paid fully in advance of their maturity date. There were no prepayment fees recognized during the six months ended June 30, 2020.

Concentrations of Risk

Topgolf USA (Topgolf), Regal Entertainment Group (Regal) and American Multi-Cinema, Inc. (AMC) represented a significant portion of the Company's total revenue for the six months ended June 30, 2020 and 2019. The Company began recognizing revenue on a cash basis for AMC in the first quarter of 2020 and cash payments have been reduced due to the impact of COVID-19. The following is a summary of the Company's total revenue (including revenue from discontinued operations) derived from rental or interest payments from Topgolf, Regal and AMC (dollars in thousands):



	Six Months Ended June 30,
	2020				2019
	Total Revenue		% of Company's Total Revenue		Total Revenue		% of Company's Total Revenue
Topgolf	$	40,129	15.6	%	$	37,719	11.1	%
Regal	39,099		15.2	%	32,620		9.6	%
AMC	22,144		8.6	%	61,364		18.0	%

Share-Based Compensation

Share-based compensation to employees of the Company is granted pursuant to the Company's Annual Incentive Program and Long-Term Incentive Plan and share-based compensation to non-employee Trustees of the Company is granted pursuant to the Company's Trustee compensation program.

Share-based compensation expense consists of share option expense and amortization of nonvested share grants issued to employees, and amortization of share units issued to non-employee Trustees for payment of their annual retainers. Share-based compensation included in general and administrative expense in the accompanying consolidated statements of (loss) income and comprehensive (loss) income.

Share Options

Share options are granted to employees pursuant to the Long-Term Incentive Plan. The fair value of share options granted is estimated at the date of grant using the Black-Scholes option pricing model. Share options granted to employees vest over a period of four years and share option expense for these options is recognized on a straight-line basis over the vesting period. Expense recognized related to share options and included in general and administrative expense in the accompanying consolidated statements of (loss) income and comprehensive (loss) income was $6 thousand and $5 thousand for the six months ended June 30, 2020 and 2019, respectively.

Nonvested Shares Issued to Employees

The Company grants nonvested shares to employees pursuant to both the Annual Incentive Program and the Long-Term Incentive Plan. The Company amortizes the expense related to the nonvested shares awarded to employees under the Long-Term Incentive Plan and the premium awarded under the nonvested share alternative of the Annual Incentive Program on a straight-line basis over the future vesting period (three years or four years). Expense recognized related to nonvested shares and included in general and administrative expense in the accompanying consolidated statements of (loss) income and comprehensive (loss) income was $5.4 million and $5.6 million for the six months ended June 30, 2020 and 2019, respectively. Expense recognized related to nonvested shares and included in severance expense in the accompanying consolidated statement of income was $0.1 million for the six months ended June 30, 2019.

Nonvested Performance Shares Issued to Employees

During the six months ended June 30, 2020, the Compensation and Human Capital Committee of the Board of Trustees (Board) approved the 2020 Long Term Incentive Plan (the 2020 LTIP) as a sub-plan under the Company's 2016 Equity Incentive Plan. Under the 2020 LTIP, the Company awards performance shares and restricted shares to the Company's executive officers. The performance shares contain both a market condition and a performance condition. The Company amortizes the expense related to the performance shares over the future vesting period of three years. Expense recognized related to performance shares and included in general and administrative expense in the accompanying consolidated statements of (loss) income and comprehensive (loss) income was $0.5 million for the six months ended June 30, 2020.

Restricted Share Units Issued to Non-Employee Trustees

The Company issues restricted share units to non-employee Trustees for payment of their annual retainers under the Company's Trustee compensation program. The fair value of the share units granted was based on the share price at the date of grant. The share units vest upon the earlier of the day preceding the next annual meeting of shareholders or a change of control. The settlement date for the shares is selected by the non-employee Trustee, and ranges from one year from the grant date to upon termination of service. This expense is amortized by the Company on a straight-line basis over the year of service by the non-employee Trustees. Total expense recognized related to shares issued to non-employee Trustees and included in general and administrative expense in the accompanying consolidated statements of (loss) income and comprehensive (loss) income was $1.0 million and $0.9 million for the six months ended June 30, 2020 and 2019, respectively.

Derivative Instruments

The Company uses derivative instruments to reduce exposure to fluctuations in foreign currency exchange rates and variable interest rates.

The Company records all derivatives on the balance sheet at fair value. The accounting for changes in the fair value of derivatives depends on the intended use of the derivative, whether the Company has elected to designate a derivative in a hedging relationship and apply hedge accounting and whether the hedging relationship has satisfied the criteria necessary to apply hedge accounting. Derivatives designated and qualifying as a hedge of the exposure to changes in the fair value of an asset, liability, or firm commitment attributable to a particular risk, such as foreign currency risk, are considered fair value hedges. Derivatives designated and qualifying as a hedge of the exposure to variability in expected future cash flows are considered cash flow hedges. Hedge accounting generally provides for the matching of the timing of gain or loss recognition on the hedging instrument with the recognition of the changes in the fair value hedge or the earnings effect of the hedged forecasted transactions in a cash flow hedge. For its net investment hedges that hedge the foreign currency exposure of its Canadian investments, the Company has elected to assess hedge effectiveness using a method based on changes in spot exchange rates and record the changes in the fair value amounts excluded from the assessment of effectiveness into earnings on a systematic and rational basis. The Company may enter into derivative contracts that are intended to economically hedge certain of its risk, even though hedge accounting does not apply or the Company elects not to apply hedge accounting. If hedge accounting is not applied, realized and unrealized gains or losses are reported in earnings.

The Company's policy is to measure the credit risk of its derivative financial instruments that are subject to master netting agreements on a net basis by counterparty portfolio.

Impact of Recently Issued Accounting Standards

In March 2020, the FASB issued ASU No. 2020-04, Reference Rate Reform (Topic 848). The ASU contains practical expedients for reference rate reform related activities that impact debt, leases, derivatives and other contracts. The guidance in ASU 2020-04 is optional and may be elected over time as reference rate reform activities occur. During the six months ended June 30, 2020, the Company elected to apply the hedge accounting expedients related to probability and the assessments of effectiveness for future LIBOR-indexed cash flows to assume that the index upon which future hedged transactions will be based matches the index on the corresponding derivatives. Application of these expedients preserves the presentation of derivatives consistent with past presentation. The Company continues to evaluate the impact of the guidance and may apply other elections as applicable as additional changes in the market occur.

3. Real Estate Investments

The following table summarizes the carrying amounts of real estate investments as of June 30, 2020 and December 31, 2019 (in thousands):



	June 30, 2020			December 31, 2019
Buildings and improvements	$	4,709,211		$	4,747,101
Furniture, fixtures & equipment	121,913			123,239
Land	1,287,656			1,290,181
Leasehold interests	26,050			26,041
	6,144,830			6,186,562
Accumulated depreciation	(1,034,771		)	(989,254		)
Total	$	5,110,059		$	5,197,308

Depreciation expense on real estate investments from continuing operations was $81.6 million and $71.9 million for the six months ended June 30, 2020 and 2019, respectively.

4. Impairment Charges

The Company reviews its properties for changes in circumstances that indicate that the carrying value of a property may not be recoverable based on an estimate of undiscounted future cash flows. As a result of the COVID-19 pandemic, many of the Company's properties are temporarily closed and the Company has negotiated and continues to negotiate lease modifications with customers that include rent deferrals, rent reductions or other modifications. As part of this process, the Company reassessed the expected holding periods of such properties, and determined that the estimated cash flows were not sufficient to recover the carrying values of six properties. Two of these six properties have operating ground lease arrangements with right-of-use assets. During the six months ended June 30, 2020, the Company determined the estimated fair value of the real estate investments and right-of-use assets using Level 3 inputs, including independent appraisals of these properties. The Company reduced the carrying value of the real estate investments, net to $49.6 million and the operating lease right-of-use assets to $13.0 million. The Company recognized impairment charges of $36.3 million on the real estate investments and $15.0 million on the right-of-use assets, which are the amounts that the carrying value of the assets exceeded the estimated fair value.

During the three months ended June 30, 2020, the Company also recognized $3.2 million in other-than-temporary impairments related to its equity investments in joint ventures in three theatre projects located in China. See Note 9 for further details on these impairments.

5. Investments and Dispositions

The Company's investment spending during the six months ended June 30, 2020 totaled $53.6 million of investments in Experiential properties. These investments included spending on the acquisition of two megaplex theatres totaling $22.1 million as well as build-to-suit development and redevelopment projects.

During the six months ended June 30, 2020, the Company completed the sale of three early education properties for net proceeds totaling $3.8 million and recognized a combined gain on sale of $0.2 million.

6. Investment in Mortgage Notes and Notes Receivable

Effective January 1, 2020, the Company adopted Topic 326, which requires the Company to estimate and record credit losses for each of its mortgage notes and note receivable. The Company measures expected credit losses on its mortgage notes and notes receivable on an individual basis over the related contractual term as its financial instruments do not have similar risk characteristics. The Company has not experienced historical losses on its mortgage note portfolio; therefore, the Company uses a forward looking commercial real estate loss forecasting tool to estimate its expected credit losses. The loss forecasting tool is comprised of a probability of default model and a loss given default model

that utilizes the Company’s loan specific inputs as well as selected forward looking macroeconomic variables and mean loss rates. Based on certain inputs, such as origination year, balance, interest rate as well as collateral value and borrower operating income, the model produces life of loan expected losses on a loan by loan basis. As of June 30, 2020, the Company did not anticipate any prepayments therefore the contractual term of its mortgage notes was used for the calculation of the expected credit losses. The Company updates the model inputs at each reporting period to reflect, if applicable, any newly originated loans, changes to loan specific information on existing loans and current macroeconomic conditions.

During the six months ended June 30, 2020, the Company increased its expected credit losses by $4.7 million from its implementation estimate of $2.2 million. This increase was as a result of additional fundings as well as adjustments to current macroeconomic conditions resulting from the economic uncertainty and the rapidly changing environment surrounding the COVID-19 pandemic.

In response to the COVID-19 pandemic, the Company deferred interest payments for four borrowers. The deferrals require the borrower to pay the deferred interest in future periods. The Company assessed the deferrals and determined that the modifications did not result in troubled debt restructurings at June 30, 2020.

Investment in mortgage notes, including related accrued interest receivable, at June 30, 2020 and December 31, 2019 consists of the following (in thousands):



					Outstanding principal amount of mortgage		Carrying amount as of				Unfunded commitments
Description	Year of Origination	Interest Rate		Maturity Date	Outstanding principal amount of mortgage		June 30, 2020		December 31, 2019 (1)		June 30, 2020
Attraction property Powells Point, North Carolina	2019	7.75	%	6/30/2025	$	27,423	$	26,480	$	27,423	$	—
Fitness & wellness property Omaha, Nebraska	2017	7.85	%	1/3/2027	10,905		11,002		10,977		—
Fitness & wellness property Merriam, Kansas	2019	7.55	%	7/31/2029	8,384		8,515		5,985		707
Ski property Girdwood, Alaska	2019	8.25	%	12/31/2029	37,000		36,975		37,000		20,000
Fitness & wellness property Omaha, Nebraska	2016	7.85	%	6/30/2030	5,773		5,889		5,803		5,145
Experiential lodging property Nashville, Tennessee	2019	6.99	%	9/30/2031	71,223		68,311		70,396		—
Eat & play property Austin, Texas	2012	11.31	%	6/1/2033	11,488		11,814		11,582		—
Ski property West Dover and Wilmington, Vermont	2007	11.78	%	12/1/2034	51,050		51,023		51,050		—
Four ski properties Ohio and Pennsylvania	2007	10.75	%	12/1/2034	37,562		37,392		37,562		—
Ski property Chesterland, Ohio	2012	11.21	%	12/1/2034	4,550		4,367		4,550		—
Ski property Hunter, New York	2016	8.57	%	1/5/2036	21,000		20,999		21,000		—
Eat & play property Midvale, Utah	2015	10.25	%	5/31/2036	17,505		17,952		17,505		—
Eat & play property West Chester, Ohio	2015	9.75	%	8/1/2036	18,068		18,498		18,068		—
Private school property Mableton, Georgia	2017	9.02	%	4/30/2037	4,674		5,055		5,048		—
Fitness & wellness property Fort Collins, Colorado	2018	7.85	%	1/31/2038	10,292		10,235		10,360		—
Early childhood education center Lake Mary, Florida	2019	7.87	%	5/9/2039	4,200		4,304		4,258		—
Eat & play property Eugene, Oregon	2019	8.13	%	6/17/2039	14,700		14,799		14,800		—
Early childhood education center Lithia, Florida	2017	8.25	%	10/31/2039	3,959		4,058		4,024		—
					$	359,756	$	357,668	$	357,391	$	25,852

(1) Balances as of December 31, 2019 are prior to the adoption of ASC Topic 326.

Investment in notes receivable, including related accrued interest receivable, was $14.0 million at June 30, 2020 and December 31, 2019, and is included in Other assets in the accompanying consolidated balance sheets.

The following summarizes the activity within the allowance for credit losses related to mortgage notes, unfunded commitments and notes receivable for the six months ended June 30, 2020 (in thousands):



	Mortgage notes receivable		Unfunded commitments		Notes receivable		Total
Allowance for credit losses at January 1, 2020	$	2,000	$	114	$	49	$	2,163
Credit loss expense	4,422		73		181		4,676
Charge-offs	—		—		—		—
Recoveries	—		—		—		—
Allowance for credit losses	$	6,422	$	187	$	230	$	6,839

7. Accounts Receivable

The following table summarizes the carrying amounts of accounts receivable as of June 30, 2020 and December 31, 2019 (in thousands):



	June 30, 2020		December 31, 2019
Receivable from tenants	$	68,254	$	11,373
Receivable from non-tenants	816		2,103
Straight-line rent receivable	65,704		73,382
Total	$	134,774	$	86,858

During the six months ended June 30, 2020, the Company wrote-off straight-line receivables totaling $13.0 million, to straight-line rental revenue classified in rental revenue in the accompanying consolidated statements of (loss) income and comprehensive (loss) income. The $13.0 million straight-line write-offs were comprised of $5.0 million of straight-line accounts receivable and $8.0 million of sub-lessor ground lease straight-line accounts receivable.

As of June 30, 2020, receivable from tenants includes fixed rent payments of approximately $60.0 million that were deferred due to the COVID-19 pandemic and determined to be collectible. Additionally, approximately $41.0 million of amounts due from tenants were not booked as receivables as the full amounts were not deemed probable of collection as a result of COVID-19 pandemic. While deferments for this and future periods delay rent payments, these deferments do not release tenants from the obligation to pay the deferred amounts in the future. The repayment terms for these deferments vary by tenant and agreements with certain tenants are still being negotiated.

8. Capital Markets and Dividends

During the six months ended June 30, 2020, the Company's Board approved a share repurchase program pursuant to which the Company may repurchase up to $150.0 million of the Company's common shares. The share repurchase program was scheduled to expire on December 31, 2020; however, the Company suspended the program on the effective date of the covenant modification agreements, June 29, 2020, as discussed below. During the six months ended June 30, 2020, the Company repurchased 4,066,716 common shares under the share repurchase program for approximately $106.0 million. The repurchases were made under a Rule 10b5-1 trading plan.

The Board declared regular monthly cash dividends on its common shares during the three and six months ended June 30, 2020 totaling $0.3825 and $1.5150 per common share, respectively. The monthly cash dividend to common shareholders was suspended following the common share dividend paid on May 15, 2020 to shareholders of record as of April 30, 2020.

During the three and six months ended June 30, 2020, the Board also declared cash dividends of $0.359375 and $0.71875 per share, respectively, on its 5.75% Series C cumulative convertible preferred shares, $0.5625 and $1.125 per share, respectively, on its 9.00% Series E cumulative convertible preferred shares and $0.359375 and $0.71875 per share, respectively, on its 5.75% Series G cumulative redeemable preferred shares.

On June 29, 2020, the Company amended its Consolidated Credit Agreement, which governs its unsecured revolving credit facility and its unsecured term loan facility, and its Note Purchase Agreement, which governs its private placement notes. The amendments modified certain provisions and waived the Company's obligation to comply with certain covenants under these debt agreements in light of the continuing financial and operational impacts of the COVID-19 pandemic on the Company and its tenants and borrowers. The modifications are generally effective during the covenant relief period, which is defined as the period of time beginning June 29, 2020 and ending on the earlier of (i) April 1, 2021 or (ii) the date on which the Company provides notice that it elects to terminate the covenant relief period, together with evidence that it would have been in compliance with the applicable financial covenants at the end of the most recently ended fiscal quarter even if the covenant relief period had not been in effect for such fiscal quarter.

During the covenant relief period, the initial interest rate for the revolving credit and term loan facility is LIBOR plus 1.375% and LIBOR plus 1.75%, respectively, (with a LIBOR floor of 0.50%) and the facility fee is increased to 0.375%. After the covenant relief period, the interest rates for the revolving credit and term loan facility are scheduled to return to LIBOR plus 1.00% and LIBOR plus 1.10%, respectively, (with a LIBOR floor of zero) and the facility fee will return to 0.20%. These rates are subject to changes, however, if the Company's long-term unsecured debt ratings change as defined in the agreements. During the covenant relief period, the interest rates for the private placement notes are 5.00% and 5.21%, respectively, for the Series A notes due 2024 and the Series B notes due 2026. After the covenant relief period, the interest rates for the private placement notes are scheduled to return to 4.35% and 4.56%, respectively, for the Series A notes due 2024 and the Series B notes due 2026.

The amendments permanently modified certain financial covenants and provided relief from compliance with certain financial covenants during all or a portion of the covenant relief period, as follows: (i) a new minimum liquidity financial covenant during the covenant relief period was added; (ii) compliance with the total-debt-to-total-asset-value and the maximum-unsecured-debt-to-unencumbered-asset-value financial covenants was suspended during the covenant relief period; (iii) compliance with the minimum unsecured interest coverage ratio and the minimum fixed charge ratio financial covenants was suspended for the period beginning on June 29, 2020 and ending on the earlier to occur of October 1, 2020 or the expiration or earlier termination of the covenant relief period; (iv) permanent amendments to the unsecured-debt-to-unencumbered-asset-value financial covenant to allow short-term indebtedness to be offset by unrestricted cash in the calculation and to allow unrestricted cash not otherwise offset against short term indebtedness to be counted as an unencumbered asset; and (v) permanent amendments to financial covenants to allow deferred payments to be included as recurring property revenue in these calculations. The amendments also imposed additional restrictions on the Company and its subsidiaries during the covenant relief period, including limitations on certain investments, incurrences of indebtedness, capital expenditures, payment of dividends or other distributions and stock repurchases, in each case subject to certain exceptions. In addition, the amendments require the Company to cause certain of its key subsidiaries to guarantee the Company's obligations and pledge the equity interests of such subsidiary guarantors upon the occurrence of certain events during the covenant relief period.

In connection with the amendments, $0.8 million of fees paid to third parties were expensed and included in costs associated with loan refinancing in the accompanying consolidated statements of (loss) income and comprehensive (loss) income for the three and six months ended June 30, 2020. In addition, the Company paid $2.6 million in fees to existing lenders that were capitalized in deferred financing costs and amortized as part of the effective yield. These fees consisted of $1.6 million related to the unsecured revolving credit facility and included in other assets and $1.0 million related to the term loan and private placement notes and shown as a reduction of debt.

9. Unconsolidated Real Estate Joint Ventures

As of June 30, 2020 and December 31, 2019, the Company had a 65% investment interest in two unconsolidated real estate joint ventures related to two experiential lodging properties located in St. Petersburg Beach, Florida. The Company's partner, Gencom Acquisition, LLC and its affiliates, own the remaining 35% interest in the joint ventures.

There are two separate joint ventures, one that holds the investment in the real estate of the experiential lodging properties and the other that holds lodging operations, which are facilitated by a management agreement with an eligible independent contractor. The Company's investment in the operating entity is held in a taxable REIT subsidiary (TRS). The Company accounts for its investment in these joint ventures under the equity method of accounting. As of June 30, 2020 and December 31, 2019, the Company had equity investments of $28.2 million and $29.7 million, respectively, in these joint ventures.

The joint venture that holds the real property has a secured mortgage loan due April 1, 2022 with an initial balance of $61.2 million and a maximum availability of $85.0 million. The note can be extended for two additional one year periods upon the satisfaction of certain conditions. As of June 30, 2020, the joint venture had $61.2 million outstanding and total availability of $23.8 million to fund upcoming property renovations. Additionally, the Company has guaranteed the completion of the renovations in the amount of approximately $24.3 million. The mortgage loan bears interest at an annual rate equal to the greater of 6.00% or LIBOR plus 3.75%. Interest is payable monthly beginning on May 1, 2019 until the stated maturity date of April 1, 2022, which can be extended to April 1, 2023. The joint venture has an interest rate cap agreement to limit the variable portion of the interest rate (LIBOR) on this note to 3.0% from March 28, 2019 to April 1, 2023. In response to the COVID-19 pandemic, on May 28, 2020, the joint venture was granted a three month interest deferral, which is required to be paid on the maturity date of the loan and is not considered a troubled debt restructuring.

The Company recognized a loss of $1.6 million and income of $1.1 million during the six months ended June 30, 2020 and 2019, respectively, and received no distributions during the six months ended June 30, 2020 and 2019 related to the equity investments in these joint ventures.

As of June 30, 2020 and 2019, the Company's investments in these joint ventures were considered to be variable interests and the underlying entities are VIEs. The Company is not the primary beneficiary of the VIEs as the Company does not individually have the power to direct the activities that are most important to the joint ventures and accordingly these investments are not consolidated. The Company's maximum exposure to loss at June 30, 2020, is its investment in the joint ventures of $28.2 million as well as the Company's guarantee of the estimated costs to complete renovations of approximately $24.3 million.

In addition, as of June 30, 2020 and December 31, 2019, the Company had equity investments of $0.7 million and $4.6 million, respectively, in unconsolidated joint ventures for three theatre projects located in China. During the six months ended June 30, 2020, the Company recognized $3.2 million in other-than-temporary impairment charges on these equity investments. The Company determined the estimated fair value of these investments using Level 3 inputs, based primarily on discounted cash flow projections. The Company recognized losses of $590 thousand and $106 thousand during the six months ended June 30, 2020 and 2019, respectively, and received distributions of $112 thousand from its investment in these joint ventures for the six months ended June 30, 2019. No distributions were received during the six months ended June 30, 2020.

10. Derivative Instruments

All derivatives are recognized at fair value in the consolidated balance sheets within the line items "Other assets" and "Accounts payable and accrued liabilities" as applicable. The Company has elected not to offset its derivative position for purposes of balance sheet presentation and disclosure. The Company had derivative assets of $8.0 million and $1.1 million at June 30, 2020 and December 31, 2019, respectively, and derivative liabilities of $13.9 million and $4.5 million derivative liabilities at June 30, 2020 and December 31, 2019, respectively. The Company has not posted or received collateral with its derivative counterparties as of June 30, 2020 or December 31, 2019. See Note 11 for disclosures relating to the fair value of the derivative instruments.

Risk Management Objective of Using Derivatives

The Company is exposed to certain risk arising from both its business operations and economic conditions including the effect of changes in foreign currency exchange rates on foreign currency transactions and interest rates on its LIBOR based borrowings. The Company manages this risk by following established risk management policies and procedures including the use of derivatives. The Company’s objective in using derivatives is to add stability to reported earnings and to manage its exposure to foreign exchange and interest rate movements or other identified risks. To accomplish this objective, the Company primarily uses interest rate swaps, cross-currency swaps and foreign currency forwards.

Cash Flow Hedges of Interest Rate Risk

The Company uses interest rate swaps as its interest rate risk management strategy. Interest rate swaps designated as cash flow hedges involve the receipt or payment of variable-rate amounts from a counterparty which results in the Company recording net interest expense that is fixed over the life of the agreements without exchange of the underlying notional amount.

As of June 30, 2020, the Company had four interest rate swap agreements designated as cash flow hedges of interest rate risk related to its variable rate unsecured term loan facility totaling $400.0 million. Additionally, at June 30, 2020, the Company had an interest rate swap agreement designated as a cash flow hedge of interest rate risk related to its variable rate secured bonds totaling $25.0 million. Interest rate swap agreements outstanding as of June 30, 2020 are summarized below:



Fixed rate		Notional Amount (in millions)		Index	Maturity
3.7950%	(1)	$	116.7	USD LIBOR	February 7, 2022
3.8075%	(1)	116.7		USD LIBOR	February 7, 2022
3.8080%	(1)	116.6		USD LIBOR	February 7, 2022
3.9950%	(1)	50.0		USD LIBOR	February 7, 2022
Total		$	400.0

1.3925%		25.0		USD LIBOR	September 30, 2024
Total		$	25.0

(1) As discussed in Note 8, on June 29, 2020 the Company amended its Consolidated Credit Agreement. The above fixed rates increased by 0.65% during the covenant relief period. The rates are scheduled to return to previous levels at the end of this period, subject to certain conditions.

The change in the fair value of interest rate derivatives designated and that qualify as cash flow hedges is recorded in accumulated other comprehensive income (AOCI) and is subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings within the same income statement line item as the earnings effect of the hedged transaction.

Amounts reported in AOCI related to derivatives will be reclassified to interest expense as interest payments are made on the Company’s variable-rate debt. As of June 30, 2020, the Company estimates that during the twelve months ending June 30, 2021, $8.1 million will be reclassified from AOCI to interest expense.

Cash Flow Hedges of Foreign Exchange Risk

The Company is exposed to foreign currency exchange risk against its functional currency, USD, on CAD denominated cash flow from its four Canadian properties. The Company uses cross-currency swaps to mitigate its exposure to fluctuations in the USD-CAD exchange rate on cash inflows associated with these properties which should hedge a significant portion of the Company's expected CAD denominated cash flows.

During the six months ended June 30, 2020, the Company entered into USD-CAD cross-currency swaps that was effective July 1, 2020 with a fixed original notional value of $100.0 million CAD and $76.6 million USD. The net effect of this swap is to lock in an exchange rate of $1.31 CAD per USD on approximately $7.2 million annual CAD denominated cash flows through June 2022.

The change in the fair value of foreign currency derivatives designated and that qualify as cash flow hedges of foreign exchange risk is recorded in AOCI and subsequently reclassified into earnings in the period that the hedged forecasted transaction affects earnings within the same income statement line item as the earnings effect of the hedged transaction. As of June 30, 2020, the Company estimates that during the twelve months ending June 30, 2021, $0.2 million of gains will be reclassified from AOCI to other income.

Net Investment Hedges

The Company is exposed to fluctuations in the USD-CAD exchange rate on its net investments in Canada. As such, the Company uses either currency forward agreements or cross-currency swaps to manage its exposure to changes in foreign exchange rates on certain of its foreign net investments. As of June 30, 2020, the Company had the following cross-currency swaps designated as net investment hedges:



Fixed rate	Notional Amount (in millions, CAD)		Maturity
$1.32 CAD per USD	$	100.0	July 1, 2023
$1.32 CAD per USD	100.0		July 1, 2023
Total	$	200.0

The cross-currency swaps also have a monthly settlement feature locked in at an exchange rate of $1.32 CAD per USD on $4.5 million of CAD annual cash flows, the net effect of which is an excluded component from the effectiveness testing of this hedge.

For qualifying foreign currency derivatives designated as net investment hedges, the change in the fair value of the derivatives are reported in AOCI as part of the cumulative translation adjustment. Amounts are reclassified out of AOCI into earnings when the hedged net investment is either sold or substantially liquidated. Gains and losses on the derivative representing hedge components excluded from the assessment of effectiveness are recognized over the life of the hedge on a systematic and rational basis, as documented at hedge inception in accordance with the Company's accounting policy election. The earnings recognition of excluded components are presented in other income.

Below is a summary of the effect of derivative instruments on the consolidated statements of changes in equity and income for the three and six months ended June 30, 2020 and 2019.

Effect of Derivative Instruments on the Consolidated Statements of Changes in Equity and Comprehensive (Loss) Income for the Three and Six Months Ended June 30, 2020 and 2019 (Dollars in thousands)

	Three Months Ended June 30,						Six Months Ended June 30,
Description	2020			2019			2020			2019
Cash Flow Hedges
Interest Rate Swaps
Amount of Loss Recognized in AOCI on Derivative	$	(1,031	)	$	(5,413	)	$	(11,673	)	$	(7,852	)
Amount of (Expense) Income Reclassified from AOCI into Earnings (1)	(1,601		)	403			(2,066		)	1,178
Cross-Currency Swaps
Amount of (Loss) Gain Recognized in AOCI on Derivative	(472		)	(165		)	667			(476		)
Amount of Income Reclassified from AOCI into Earnings (2)	236			157			442			291

Net Investment Hedges
Cross-Currency Swaps
Amount of (Loss) Gain Recognized in AOCI on Derivative	(6,188		)	(1,057		)	6,987			(4,896		)
Amount of Income Recognized in Earnings (2) (3)	172			146			334			284

Total
Amount of Loss Recognized in AOCI on Derivatives	$	(7,691	)	$	(6,635	)	$	(4,019	)	$	(13,224	)
Amount of (Expense) Income Reclassified from AOCI into Earnings	(1,365		)	560			(1,624		)	1,469
Amount of Income Recognized in Earnings	172			146			334			284

Interest expense, net in accompanying consolidated statements of (loss) income and comprehensive (loss) income	$	38,340		$	36,458		$	73,093		$	70,421
Other income in accompanying consolidated statements of (loss) income and comprehensive (loss) income	$	416		$	5,726		$	7,989		$	6,070

(1) Included in "Interest expense, net" in the accompanying consolidated statements of (loss) income and comprehensive (loss) income for the three and six months ended June 30, 2020 and 2019.

(2) Included in "Other income" in the accompanying consolidated statements of (loss) income and comprehensive (loss) income for the three and six months ended June 30, 2020 and 2019.

(3) Amounts represent derivative gains excluded from the effectiveness testing.

Credit-risk-related Contingent Features

The Company has agreements with each of its interest rate derivative counterparties that contain a provision where if the Company defaults on any of its obligations for borrowed money or credit in an amount exceeding $50.0 million and such default is not waived or cured within a specified period of time, including default where repayment of the indebtedness has not been accelerated by the lender, then the Company could also be declared in default on its interest rate derivative obligations.

As of June 30, 2020, the fair value of the Company's derivatives in a liability position related to these agreements was $13.9 million. If the Company breached any of the contractual provisions of these derivative contracts, it would be required to settle its obligations under the agreements at their termination value, after considering the right of offset of $12.6 million. As of June 30, 2020, the Company had not posted any collateral related to these agreements and was not in breach of any provisions in these agreements.

11. Fair Value Disclosures

The Company has certain financial instruments that are required to be measured under the FASB’s Fair Value Measurement guidance. The Company currently does not have any non-financial assets and non-financial liabilities that are required to be measured at fair value on a recurring basis.

As a basis for considering market participant assumptions in fair value measurements, the FASB’s Fair Value Measurement guidance establishes a fair value hierarchy that distinguishes between market participant assumptions based on market data obtained from sources independent of the reporting entity (observable inputs that are classified within Levels 1 and 2 of the hierarchy) and the reporting entity’s own assumptions about market participant assumptions (unobservable inputs classified within Level 3 of the hierarchy). Level 1 inputs use quoted prices (unadjusted) in active markets for identical assets or liabilities that the Company has the ability to access. Level 2 inputs are inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. Level 3 inputs are unobservable inputs for the asset or liability, which are typically based on an entity’s own assumptions, as there is little, if any, related market activity. In instances where the determination of the fair value measurement is based on inputs from different levels of the fair value hierarchy, the level in the fair value hierarchy within which the entire fair value measurement falls is based on the lowest level input that is significant to the fair value measurement in its entirety. The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment and considers factors specific to the asset or liability.

Derivative Financial Instruments

The Company uses interest rate swaps, foreign currency forwards and cross-currency swaps to manage its interest rate and foreign currency risk. The valuation of these instruments is determined using widely accepted valuation techniques including discounted cash flow analysis on the expected cash flows of each derivative. This analysis reflects the contractual terms of the derivatives, including the period to maturity, and uses observable market-based inputs, including interest rate curves, foreign exchange rates, and implied volatilities. The fair values of interest rate swaps are determined using the market standard methodology of netting the discounted future fixed cash receipts and the discounted expected variable cash payments. The variable cash payments are based on an expectation of future interest rates (forward curves) derived from observable market interest rate curves. The Company incorporates credit valuation adjustments to appropriately reflect both its own nonperformance risk and the respective counterparty’s nonperformance risk in the fair value measurements. In adjusting the fair value of its derivative contracts for the effect of nonperformance risk, the Company has considered the impact of netting and any applicable credit enhancements, such as collateral postings, thresholds, mutual puts, and guarantees. In conjunction with the FASB's Fair Value Measurement guidance, the Company made an accounting policy election to measure the credit risk of its derivative financial instruments that are subject to master netting agreements on a net basis by counterparty portfolio.

Although the Company determined that the majority of the inputs used to value its derivatives fall within Level 2 of the fair value hierarchy, the credit valuation adjustments associated with its derivatives also use Level 3 inputs, such as estimates of current credit spreads, to evaluate the likelihood of default by itself and its counterparties. As of June 30, 2020, the Company assessed the significance of the impact of the credit valuation adjustments on the overall valuation of its derivative positions and determined that the credit valuation adjustments are not significant to the overall valuation of its derivatives and therefore, classified its derivatives as Level 2 within the fair value reporting hierarchy.

The table below presents the Company’s financial assets and liabilities measured at fair value on a recurring basis as of June 30, 2020 and December 31, 2019 aggregated by the level in the fair value hierarchy within which those measurements are classified and by derivative type.

Assets and Liabilities Measured at Fair Value on a Recurring Basis at June 30, 2020 and December 31, 2019 (Dollars in thousands)

Description	Quoted Prices in Active Markets for Identical Assets (Level I)		Significant Other Observable Inputs (Level 2)			Significant Unobservable Inputs (Level 3)		Balance at end of period
June 30, 2020
Cross-Currency Swaps*	$	—	$	8,040		$	—	$	8,040
Interest Rate Swap Agreements**	$	—	$	(13,877	)	$	—	$	(13,877	)
December 31, 2019
Cross-Currency Swaps*	$	—	$	828		$	—	$	828
Interest Rate Swap Agreements*	$	—	$	225		$	—	$	225
Interest Rate Swap Agreements**	$	—	$	(4,495	)	$	—	$	(4,495	)

*Included in "Other assets" in the accompanying consolidated balance sheets.

** Included in "Accounts payable and accrued liabilities" in the accompanying consolidated balance sheets.

Non-recurring fair value measurements

The table below presents the Company's assets measured at fair value on a non-recurring basis during the six months ended June 30, 2020, aggregated by the level in the fair value hierarchy within which those measurements fall.

Assets Measured at Fair Value on a Non-Recurring Basis During the Six Months Ended June 30, 2020 (Dollars in thousands)

Description	Quoted Prices in Active Markets for Identical Assets (Level I)		Significant Other Observable Inputs (Level 2)		Significant Unobservable Inputs (Level 3)		Balance at end of period
2020:
Real estate investments, net	$	—	$	—	$	49,613	$	49,613
Operating lease right-of-use assets	—		—		12,953		12,953
Investment in joint ventures	—		—		771		771

As discussed further in Note 4, during the six months ended June 30, 2020, the Company recorded impairment charges of $51.3 million, of which $36.3 million related to real estate investments, net and $15.0 million related to operating lease right-of-use assets. Management estimated the fair value of these investments taking into account various factors including the independent appraisals, shortened hold periods and current market conditions. The Company determined, based on the inputs, that its valuation of real estate investments, net and operating lease right-of-use assets were classified within Level 3 of the fair value hierarchy as many of the assumptions are not observable.

Additionally, as discussed further in Note 9, during the six months ended June 30, 2020, the Company recorded impairment charges $3.2 million related to its investment in joint ventures. Management estimated the fair value of these investments taking into account various factors including implied asset value changes based on discounted cash flow projections and current market conditions. The Company determined, based on the inputs, that its valuation of investment in joint ventures was classified within Level 3 of the fair value hierarchy as many of the assumptions are not observable.

Fair Value of Financial Instruments

The following methods and assumptions were used by the Company to estimate the fair value of each class of financial instruments at June 30, 2020 and December 31, 2019:

Mortgage notes receivable and related accrued interest receivable:

The fair value of the Company’s mortgage notes and related accrued interest receivable is estimated by discounting the future cash flows of each instrument using current market rates. At June 30, 2020, the Company had a carrying value of $357.7 million in fixed rate mortgage notes receivable outstanding, including related accrued interest and allowance for credit losses, with a weighted average interest rate of approximately 9.03%. The fixed rate mortgage notes bear interest at rates of 6.99% to 11.78%. Discounting the future cash flows for fixed rate mortgage notes receivable using rates of 7.99% to 9.25%, management estimates the fair value of the fixed rate mortgage notes receivable to be approximately $390.0 million with an estimated weighted average market rate of 8.00% at June 30, 2020.

At December 31, 2019, the Company had a carrying value of $357.4 million in fixed rate mortgage notes receivable outstanding, including related accrued interest, with a weighted average interest rate of approximately 8.98%. The fixed rate mortgage notes bear interest at rates of 6.99% to 11.61%. Discounting the future cash flows for fixed rate mortgage notes receivable using rates of 6.99% to 9.25%, management estimates the fair value of the fixed rate mortgage notes receivable to be $395.6 million with an estimated weighted average market rate of 7.76% at December 31, 2019.

Derivative instruments:

Derivative instruments are carried at their fair value.

Debt instruments:

The fair value of the Company's debt is estimated by discounting the future cash flows of each instrument using current market rates. At June 30, 2020, the Company had a carrying value of $1.2 billion in variable rate debt outstanding with a weighted average interest rate of approximately 2.21%. The carrying value of the variable rate debt outstanding approximated the fair value at June 30, 2020.

At December 31, 2019, the Company had a carrying value of $425.0 million in variable rate debt outstanding with a weighted average interest rate of approximately 2.75%. The carrying value of the variable rate debt outstanding approximated the fair value at December 31, 2019.

At June 30, 2020 and December 31, 2019, $425.0 million of the Company's variable rate debt, discussed above, had been effectively converted to a fixed rate by interest rate swap agreements. See Note 10 for additional information related to the Company's interest rate swap agreements.

At June 30, 2020, the Company had a carrying value of $2.72 billion in fixed rate long-term debt outstanding with a weighted average interest rate of approximately 4.62%. Discounting the future cash flows for fixed rate debt using June 30, 2020 market rates of 5.00% to 6.06%, management estimates the fair value of the fixed rate debt to be approximately $2.54 billion with an estimated weighted average market rate of 5.71% at June 30, 2020.

At December 31, 2019, the Company had a carrying value of $2.72 billion in fixed rate long-term debt outstanding with an average weighted interest rate of approximately 4.54%. Discounting the future cash flows for fixed rate debt using December 31, 2019 market rates of 2.87% to 4.56%, management estimates the fair value of the fixed rate debt to be approximately $2.87 billion with an estimated weighted average market rate of 3.51% at December 31, 2019.

12. Earnings Per Share

The following table summarizes the Company’s computation of basic and diluted earnings per share (EPS) for the three and six months ended June 30, 2020 and 2019 (amounts in thousands except per share information):



	Three Months Ended June 30, 2020							Six Months Ended June 30, 2020
	Income (numerator)			Shares (denominator)	Per Share Amount			Income (numerator)			Shares (denominator)	Per Share Amount
Basic EPS:
Net loss	$	(62,965	)					$	(25,847	)
Less: preferred dividend requirements	(6,034		)					(12,068		)
Net loss available to common shareholders	$	(68,999	)	76,310	$	(0.90	)	$	(37,915	)	77,388	$	(0.49	)
Diluted EPS:
Net loss available to common shareholders	$	(68,999	)	76,310				$	(37,915	)	77,388
Effect of dilutive securities:
Share options	—			—				—			—
Net loss available to common shareholders	$	(68,999	)	76,310	$	(0.90	)	$	(37,915	)	77,388	$	(0.49	)



	Three Months Ended June 30, 2019						Six Months Ended June 30, 2019
	Income (numerator)			Shares (denominator)	Per Share Amount		Income (numerator)			Shares (denominator)	Per Share Amount
Basic EPS:
Income from continuing operations	$	46,421					$	94,885
Less: preferred dividend requirements	(6,034		)				(12,068		)
Income from continuing operations available to common shareholders	$	40,387		76,164	$	0.53	$	82,817		75,426	$	1.10
Income from discontinued operations available to common shareholders	$	20,173		76,164	$	0.27	$	37,058		75,426	$	0.49
Net income available to common shareholders	$	60,560		76,164	$	0.80	$	119,875		75,426	$	1.59
Diluted EPS:
Income from continuing operations available to common shareholders	$	40,387		76,164			$	82,817		75,426
Effect of dilutive securities:
Share options	—			35			—			41
Income from continuing operations available to common shareholders	$	40,387		76,199	$	0.53	$	82,817		75,467	$	1.10
Income from discontinued operations available to common shareholders	$	20,173		76,199	$	0.26	$	37,058		75,467	$	0.49
Net income available to common shareholders	$	60,560		76,199	$	0.79	$	119,875		75,467	$	1.59

The additional 2.2 million common shares that would result from the conversion of the Company’s 5.75% Series C cumulative convertible preferred shares for the three and six months ended June 30, 2020 and 2019, and the additional 1.7 million and 1.6 million common shares that would result from the conversion of the Company’s 9.0% Series E cumulative convertible preferred shares for the three and six months ended June 30, 2020 and 2019, respectively, and the corresponding add-back of the preferred dividends declared on those shares are not included in the calculation of diluted earnings per share because the effect is anti-dilutive.

The dilutive effect of potential common shares from the exercise of share options is included in diluted earnings per share for the periods presented. Options to purchase 117 thousand and 4 thousand common shares at per share prices ranging from $44.62 to $76.63 and $73.84 to $76.63 were outstanding for the three and six months ended June 30, 2020 and 2019, respectively, but were not included in the computation of diluted earnings per share because they were anti-dilutive.

The dilutive effect of the potential common shares from the performance shares is included in diluted earnings per share upon the satisfaction of certain performance and market conditions. These conditions are evaluated at each reporting period and if the conditions have been satisfied during the reporting period, the number of contingently issuable shares are included in the computation of diluted earnings per share. During the three and six months ended June 30, 2020, the Company determined the performance and market conditions were not met, therefore, none of the 62 thousand contingently issuable performance shares were included in the computation of diluted earnings per share.

13. Equity Incentive Plan

All grants of common shares and options to purchase common shares were issued under the Company's 2007 Equity Incentive Plan prior to May 12, 2016 and under the 2016 Equity Incentive Plan on and after May 12, 2016. Under the 2016 Equity Incentive Plan, an aggregate of 1,950,000 common shares, options to purchase common shares and restricted share units, subject to adjustment in the event of certain capital events, may be granted. During the six months ended June 30, 2020, the Compensation and Human Capital Committee of the Board approved the 2020 Long Term Incentive Plan (2020 LTIP) as a sub-plan under the Company's 2016 Equity Incentive Plan. Under the 2020 LTIP, the Company awards performance shares and restricted shares to the Company's executive officers. At June 30, 2020, there were 742,376 shares available for grant under the 2016 Equity Incentive Plan.

Share Options

Share options have exercise prices equal to the fair market value of a common share at the date of grant. The options may be granted for any reasonable term, not to exceed 10 years. The Company generally issues new common shares upon option exercise. A summary of the Company’s share option activity and related information is as follows:



	Number of options		Option price per share					Weighted avg. exercise price
Outstanding at December 31, 2019	118,030		$	44.62	—	$	76.63	$	55.63
Exercised	(1,410	)	44.98		—	44.98		44.98
Granted	2,890		69.19		—	69.19		69.19
Forfeited/Expired	(2,820	)	44.98		—	44.98		44.98
Outstanding at June 30, 2020	116,690		$	44.62	—	$	76.63	$	56.36

The weighted average fair value of options granted was $3.73 and $4.64 during the six months ended June 30, 2020 and 2019, respectively. The intrinsic value of share options exercised was $22 thousand and $2.7 million for the six months ended June 30, 2020 and 2019, respectively.

The following table summarizes outstanding and exercisable options at June 30, 2020:



	Options outstanding						Options exercisable
Exercise price range	Options outstanding	Weighted avg. life remaining	Weighted avg. exercise price		Aggregate intrinsic value (in thousands)		Options outstanding	Weighted avg. life remaining	Weighted avg. exercise price		Aggregate intrinsic value (in thousands)
$ 44.62 - 49.99	27,215	1.8					27,215	1.8
50.00 - 59.99	31,710	4.0					29,793	3.8
60.00 - 69.99	53,609	6.0					50,719	4.6
70.00 - 76.63	4,156	7.5					2,148	7.1
	116,690	4.5	$	56.36	$	—	109,875	3.8	$	55.67	$	—

Nonvested Shares

A summary of the Company’s nonvested share activity and related information is as follows:



	Number of shares		Weighted avg. grant date fair value		Weighted avg. life remaining
Outstanding at December 31, 2019	509,338		$	67.88
Granted	211,549		69.09
Vested	(228,557	)	67.76
Forfeited	(1,317	)	68.38
Outstanding at June 30, 2020	491,013		$	68.45	1.31

The holders of nonvested shares have voting rights and receive dividends from the date of grant. The fair value of the nonvested shares that vested was $16.0 million and $22.1 million for the six months ended June 30, 2020 and 2019, respectively. At June 30, 2020, unamortized share-based compensation expense related to nonvested shares was $18.3 million.

Nonvested Performance Shares

A summary of the Company's nonvested performance share activity and related information is as follows:



	Number of Performance Shares
Outstanding at December 31, 2019	—
Granted	61,615
Vested	—
Forfeited	—
Outstanding at June 30, 2020	61,615

The number of common shares issuable upon settlement of the performance shares granted during the six months ended June 30, 2020 will be based upon the Company's achievement level relative to the following performance measures at December 31, 2022: 50% based upon the Company's Total Shareholder Return (TSR) relative to the TSRs of the Company's peer group companies, 25% based upon the Company's TSR relative to the TSRs of companies in the MSCI US REIT Index and 25% based upon the Company's Average Annual Growth in AFFO per share over the three-year performance period. The Company's achievement level relative to the performance measures is assigned a specific payout percentage which is multiplied by a target number of performance shares.

The performance shares based on relative TSR performance have market conditions and are valued using a Monte Carlo simulation model on the grant date, which resulted in a grant date fair value of approximately $3.0 million. The estimated fair value is amortized to expense over the three-year vesting period, which ends on December 31, 2022. The following assumptions were used in the Monte Carlo simulation for computing the grant date fair value of the performance shares with a market condition: risk-free interest rate of 1.4%, volatility factors in the expected market price of the Company's common shares of 18% and an expected life of three years. At June 30, 2020, unamortized share-based compensation expense related to nonvested performance shares was $2.5 million.

The performance shares based on growth in AFFO have a performance condition. The probability of achieving the performance condition is assessed at each reporting period. If it is deemed probable that the performance condition will be met, compensation cost will be recognized based on the closing price per share of the Company's common stock on the date of the grant multiplied by the number of awards expected to be earned. If it is deemed that it is not probable that the performance condition will be met, the Company will discontinue the recognition of compensation cost and any compensation cost previously recorded will be reversed. At June 30, 2020, achievement of the performance condition for the performance shares granted during the six months ended June 30, 2020 was deemed not probable.

The performance shares accrue dividend equivalents which are paid only if common shares are issued upon settlement of the performance shares. During the three and six months ended June 30, 2020, the Company accrued dividend equivalents expected to be paid on earned awards of $19 thousand.

Restricted Share Units

A summary of the Company’s restricted share unit activity and related information is as follows:



	Number of shares		Weighted avg. grant date fair value		Weighted avg. life remaining
Outstanding at December 31, 2019	26,236		$	77.54
Granted	74,767		31.57
Vested	(26,236	)	77.54
Outstanding at June 30, 2020	74,767		$	31.57	0.92

The holders of restricted share units receive dividend equivalents from the date of grant. At June 30, 2020, unamortized share-based compensation expense related to restricted share units was $2.2 million.

14. Discontinued Operations

During the year ended December 31, 2019, the Company completed the sale of its public charter school portfolio with the largest disposition occurring on November 22, 2019 consisting of 47 public charter school related assets, for net proceeds of approximately $449.6 million. The Company determined the dispositions of the remaining public charter school portfolio in 2019 represented a strategic shift that had a major effect on the Company's operations and financial results. Therefore, all public charter school investments disposed of by the Company during the year ended December 31, 2019 qualified as discontinued operations. Accordingly, the historical financial results of these public charter school investments are reflected in the Company's consolidated financial statements as discontinued operations for the three and six months ended June 30, 2019.

The operating results relating to discontinued operations are as follows (in thousands):



	Three Months Ended June 30, 2019			Six Months Ended June 30, 2019
Rental revenue	$	10,327		$	20,758
Mortgage and other financing income	3,631			7,215
Total revenue	13,958			27,973
Property operating expense	174			416
Interest expense, net	(180		)	(317		)
Depreciation and amortization	3,565			7,306
Income from discontinued operations before other items	10,399			20,568
Gain on sale of real estate	9,774			16,490
Income from discontinued operations	$	20,173		$	37,058

The cash flow information relating to discontinued operations are as follows (in thousands):



	Six Months Ended June 30,
	2019
Depreciation and amortization	$	7,306
Acquisition of and investments in real estate and other assets	(1,827		)
Proceeds from sale of real estate	86,154
Investment in mortgage notes receivable	(4,143		)
Proceeds from mortgage notes receivable paydowns	1,783
Additions to properties under development	(15,041		)

Non-cash activity:
Transfer of property under development to real estate investments	$	4,748
Interest cost capitalized	317

15. Operating Leases

The Company’s real estate investments are leased under operating leases. As described in Note 2, the Company adopted Topic 842 on January 1, 2019 and elected to not reassess its prior conclusions about lease classification. Accordingly, these lease arrangements continue to be classified as operating leases. In addition to its lessor arrangements on its real estate investments, as of June 30, 2020 and December 31, 2019, the Company was lessee in 58 operating ground leases, as well as lessee in an operating lease of its executive office. The Company's tenants, who are generally sub-tenants under these ground leases, are responsible for paying the rent under these ground leases. In the event the tenant fails to pay the ground lease rent, the Company would be primarily responsible for the payment, assuming the Company does not sell or re-tenant the property.

The following table summarizes rental revenue, including sublease arrangements, and lease costs, including impairment charges on operating lease right-of-use assets, for the three and six months ended June 30, 2020 and 2019 (in thousands):



		Three Months Ended June 30,				Six Months Ended June 30,
	Classification	2020		2019		2020		2019
Rental revenue
Operating leases (1)	Rental revenue	$	92,017	$	141,168	$	229,106	$	275,737
Sublease income - operating ground leases (2)	Rental revenue	$	5,514	$	5,835	$	3,468	$	11,558

Lease costs
Operating ground lease cost	Property operating expense	$	6,283	$	6,065	$	12,500	$	12,003
Operating office lease cost	General and administrative expense	$	226	$	226	$	452	$	456
Operating lease right-of-use asset impairment charges (3)	Impairment charges	$	15,009	$	—	$	15,009	$	—

(1) During the three and six months ended June 30, 2020, the Company wrote-off straight-line receivables of $0.5 million and $5.0 million, respectively, to straight-line rental revenue classified in rental revenue in the accompanying consolidated statements of (loss) income and comprehensive (loss) income.

(2) During the six months ended June 30, 2020, the Company wrote-off sub-lessor ground lease straight-line receivables of $8.0 million to straight-line rental revenue classified in rental revenue in the accompanying consolidated statements of (loss) income and comprehensive (loss) income.

(3) During the three and six months ended June 30, 2020, the Company recognized impairment charges of $15.0 million related to the operating lease right-of-use assets at two of its properties. See Note 4 for the details on these impairments.

Substantially all the Company's customers' operations were temporarily closed for a portion of or all of the three months ended June 30, 2020 as a result of the COVID-19 pandemic. Certain of these customers' operations remain closed, while others have implemented re-opening plans. In response, the Company has agreed to defer rent for a substantial portion of its customers. In reliance upon a FASB Staff Q&A, the Company intends to not treat qualifying deferrals or rent concessions during the period effected by the COVID-19 pandemic as lease modifications. While deferments for this and future periods delay rent payments, these deferments generally do not release customers from the obligation to pay the deferred amounts in the future. Deferred rent amounts will be reflected in the Company's financial statements as accounts receivable if collection is determined to be probable or will be recognized when received as variable lease payments if collection is determined to not be probable. In limited cases, customers may be entitled to the abatement of rent during governmentally imposed prohibitions on business operations which is recognized in the period to which it relates, or the Company may provide rent concessions to tenants. In cases where the Company provides concessions to tenants to which they are not otherwise entitled, those amounts will be recognized in the period in which the concession is granted unless the changes are accounted for as lease modifications. The Company will continue to evaluate the impacts of COVID-19 on the Company's lease receivables and related accounting processes.

16. Segment Information

The Company groups its investments into two reportable operating segments: Experiential and Education. Due to the Company's change to two reportable segments during the year ended December 31, 2019, certain reclassifications have been made to the 2019 presentation to conform to the current presentation.

The financial information summarized below is presented by reportable operating segment (in thousands):



Balance Sheet Data:
	As of June 30, 2020
	Experiential		Education		Corporate/Unallocated		Consolidated
Total Assets	$	5,253,239	$	721,098	$	1,028,641	$	7,002,978

	As of December 31, 2019
	Experiential		Education		Corporate/Unallocated		Consolidated
Total Assets	$	5,307,295	$	730,165	$	540,051	$	6,577,511



Operating Data:
	Three Months Ended June 30, 2020
	Experiential		Education		Corporate/Unallocated		Consolidated
Rental revenue	$	84,204	$	13,327	$	—	$	97,531
Other income	8		—		408		416
Mortgage and other financing income	8,108		305		—		8,413
Total revenue	92,320		13,632		408		106,360

Property operating expense	14,514		628		187		15,329
Other expense	2,798		—		—		2,798
Total investment expenses	17,312		628		187		18,127
Net operating income - before unallocated items	75,008		13,004		221		88,233

Reconciliation to Consolidated Statements of (Loss) Income and Comprehensive (Loss) Income:
General and administrative expense							(10,432		)
Costs associated with loan refinancing or payoff							(820		)
Interest expense, net							(38,340		)
Transaction costs							(771		)
Credit loss expense							(3,484		)
Impairment charges							(51,264		)
Depreciation and amortization							(42,450		)
Equity in loss from joint ventures							(1,724		)
Impairment charges on joint ventures							(3,247		)
Gain on sale of real estate							22
Income tax benefit							1,312
Net loss							(62,965		)
Preferred dividend requirements							(6,034		)
Net loss available to common shareholders of EPR Properties							$	(68,999	)



Operating Data:
	Three Months Ended June 30, 2019
	Experiential		Education		Corporate/Unallocated		Consolidated
Rental revenue	$	129,271	$	17,732	$	—	$	147,003
Other income	5,423		—		303		5,726
Mortgage and other financing income	8,761		250		—		9,011
Total revenue	143,455		17,982		303		161,740

Property operating expense	13,488		882		227		14,597
Other expense	8,091		—		—		8,091
Total investment expenses	21,579		882		227		22,688
Net operating income - before unallocated items	121,876		17,100		76		139,052

Reconciliation to Consolidated Statements of (Loss) Income and Comprehensive (Loss) Income:
General and administrative expense							(12,230		)
Interest expense, net							(36,458		)
Transaction costs							(6,923		)
Depreciation and amortization							(38,790		)
Equity in income from joint ventures							470
Income tax benefit							1,300
Discontinued operations:
Income from discontinued operations							10,399
Gain on sale of real estate from discontinued operations							9,774
Net income							66,594
Preferred dividend requirements							(6,034		)
Net income available to common shareholders of EPR Properties							$	60,560



Operating Data:
	Six Months Ended June 30, 2020
	Experiential		Education		Corporate/Unallocated		Consolidated
Rental revenue	$	202,864	$	29,710	$	—	$	232,574
Other income	7,213		—		776		7,989
Mortgage and other financing income	16,152		657		—		16,809
Total revenue	226,229		30,367		776		257,372

Property operating expense	26,843		1,169		410		28,422
Other expense	12,332		—		—		12,332
Total investment expenses	39,175		1,169		410		40,754
Net operating income - before unallocated items	187,054		29,198		366		216,618

Reconciliation to Consolidated Statements of (Loss) Income and Comprehensive (Loss) Income:
General and administrative expense							(21,420		)
Costs associated with loan refinancing or payoff							(820		)
Interest expense, net							(73,093		)
Transaction costs							(1,846		)
Credit loss expense							(4,676		)
Impairment charges							(51,264		)
Depreciation and amortization							(86,260		)
Equity in loss from joint ventures							(2,144		)
Impairment charges on joint ventures							(3,247		)
Gain on sale of real estate							242
Income tax benefit							2,063
Net loss							(25,847		)
Preferred dividend requirements							(12,068		)
Net loss available to common shareholders of EPR Properties							$	(37,915	)



Operating Data:
	Six Months Ended June 30, 2019
	Experiential		Education		Corporate/Unallocated		Consolidated
Rental revenue	$	253,287	$	34,008	$	—	$	287,295
Other income	5,494		—		576		6,070
Mortgage and other financing income	18,129		773		—		18,902
Total revenue	276,910		34,781		576		312,267

Property operating expense	27,936		1,752		460		30,148
Other expense	8,091		—		—		8,091
Total investment expenses	36,027		1,752		460		38,239
Net operating income - before unallocated items	240,883		33,029		116		274,028

Reconciliation to Consolidated Statements of (Loss) Income and Comprehensive (Loss) Income:
General and administrative expense							(23,940		)
Severance expense							(420		)
Interest expense, net							(70,421		)
Transaction costs							(12,046		)
Depreciation and amortization							(74,792		)
Equity in income from joint ventures							959
Loss on sale of real estate							(388		)
Income tax benefit							1,905
Discontinued operations:
Income from discontinued operations							20,568
Gain on sale of real estate from discontinued operations							16,490
Net income							131,943
Preferred dividend requirements							(12,068		)
Net income available to common shareholders of EPR Properties							$	119,875

17. Other Commitments and Contingencies

As of June 30, 2020, the Company had 10 development projects with commitments to fund an aggregate of approximately $81.7 million. Development costs are advanced by the Company in periodic draws. If the Company determines that construction is not being completed in accordance with the terms of the development agreement, it can discontinue funding construction draws. The Company has agreed to lease the properties to the operators at pre-determined rates upon completion of construction.

The Company has certain commitments related to its mortgage notes and notes receivable investments that it may be required to fund in the future. The Company is generally obligated to fund these commitments at the request of the borrower or upon the occurrence of events outside of its direct control. As of June 30, 2020, the Company had three mortgage notes and notes receivable with commitments totaling approximately $25.9 million. If commitments are funded in the future, interest will be charged at rates consistent with the existing investments.

In connection with construction of its development projects and related infrastructure, certain public agencies require posting of surety bonds to guarantee that the Company's obligations are satisfied. These bonds expire upon the completion of the improvements or infrastructure. As of June 30, 2020, the Company had two surety bonds outstanding totaling $31.6 million.

18. Subsequent Events

On July 31, 2020, the Company entered into a Forbearance Agreement (the Forbearance Agreement), a Master Lease Agreement (the Master Lease) and seven amended lease agreements (the Transitional Leases and collectively with the Master Lease, the Leases) with AMC, its affiliate tenants of the Company (AMC and such affiliates, collectively, AMC Tenant), and AMC Entertainment Holdings, Inc. (Guarantor), relating to all 53 properties currently leased to AMC Tenant (the Leased Properties). These agreements restructured the then-existing lease terms for the Leased Properties

in light of the continuing impact of the COVID-19 pandemic on AMC Tenant's operations. Effective July 1, 2020, the Leased Properties are leased to AMC Tenant pursuant to the following leases:


•	Master Lease relating to 46 Leased Properties (the Master Lease Properties), and


•	Seven Transitional Leases relating to seven Leased Properties (the Transitional Properties).

In addition, AMC Tenant and the Company entered into the following related agreements:


•	Security Agreement granting to the Company a security interest subordinated to AMC's secured credit agreements and indentures in all of AMC Tenant’s property located at the Leased Properties to secure AMC Tenant’s obligations to the Company under the Forbearance Agreement and the Leases,


•	Guaranty providing a guaranty by Guarantor of AMC Tenant’s obligations to the Company under the Forbearance Agreement and the Leases, and


•	Capital Improvements Agreement providing a financial mechanism for the Company to provide AMC Tenant with up to $35 million of funds to complete improvements to the Master Lease Properties in exchange for increased annual fixed rent.

The prior leases for the 46 Master Lease Properties were replaced with a single Master Lease. The Company agreed to reduce total annual fixed rent on the 46 Master Lease Properties by approximately $19.4 million to approximately $87.8 million (including approximately $6.8 million of ground rent and the repayment of deferral amounts for the months of April, May and June 2020). The Company agreed to the deferral of all fixed rent due under the prior leases of the Master Lease Properties for the months of April, May and June 2020. This total amount deferred is included in the calculation of the fixed rent under the Master Lease and is amortized over the first 14 years of the Master Lease term.

The Master Lease Properties have been divided into four tranches, with the initial term of each tranche expiring on a different date: June 30, 2034, June 30, 2035, June 30, 2036 and June 30, 2037. The AMC Tenant may exercise up to three 5-year extensions for each tranche. If AMC Tenant elects not to exercise an extension option with respect to a tranche, fixed rent will be reduced by the fair market rental value of Master Lease Properties included in such tranche at that time, determined in accordance with the Master Lease. Upon the expiration of the initial term of each tranche or expiration of any extension option of each tranche and the election by AMC Tenant to further extend the term of such tranche, AMC Tenant may elect to remove up to two Master Lease Properties included in the tranche, which will result in a reduction in the annual fixed rent equal to the fair market rental value of such removed Master Lease Properties at that time, determined in accordance with the Master Lease. AMC Tenant may not remove more than 10 Master Lease Properties in total and not more than three Master Lease Properties per tranche during the entirety of the Master Lease term.

Each lease for the seven Transitional Properties was amended by the parties. The Company agreed to reduce the aggregate annual fixed rent on the Transitional Properties by approximately $6.2 million to approximately $8.1 million (including approximately $1.2 million of ground rent and the repayment of deferral amounts for the months of April, May and June, 2020). The Company agreed to the deferral of all fixed rent due under the Transitional Leases for the months of April, May and June 2020. This total amount deferred under each Transitional Lease is included in the calculation of the fixed rent under the Transitional Lease and amortized over the remaining current term of the Transitional Lease. The Transitional Leases have expiration dates occurring between November 2026 and March 2029.

Pursuant to the Master Lease and the Forbearance Agreement, commencing on July 1, 2020 and continuing through December 31, 2020, in lieu of monthly fixed rent AMC Tenant agreed to pay percentage rent of 15% of total gross sales/receipts during such month, not to exceed the deferred monthly fixed rent for the Leased Properties. The difference between the scheduled monthly fixed rent and the percentage rent actually paid to the Company will be additional deferred rent that, beginning in February 2021, will be added to fixed cash rent and amortized over the remaining portion of the first 14 years of the term of the Master Lease or over the remaining current term in the case of Transitional Leases.

The Leases are triple-net leases requiring AMC Tenant to be responsible at all times for taxes, assessments, maintenance and operating costs, common area charges, association fees, ground rent, insurance premiums, utility charges and similar pass-through charges. Fixed rent of the Master Lease (excluding the portion attributable to deferred rent) will increase by 7.5% every five years during the term and any extensions.

The Company may terminate each Transitional Lease by giving the AMC Tenant 90 days' prior notice of termination. Upon termination of a Transitional Lease by the Company, AMC Tenant has agreed to (1) cooperate with the Company in transitioning the applicable Transitional Property to a new operator to ensure seamless transfer of management and re-branding, and (2) transfer certain property, including fixtures, furnishings and equipment, located or used at the applicable Transitional Property in exchange for a credit to the unpaid deferred amount due under the Transitional Lease.

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion should be read in conjunction with the Consolidated Financial Statements and Notes thereto included in this Quarterly Report on Form 10-Q of EPR Properties (the “Company”, “EPR”, “we” or “us”). The forward-looking statements included in this discussion and elsewhere in this Quarterly Report on Form 10-Q involve risks and uncertainties, including anticipated financial performance, anticipated liquidity and capital resources, business prospects, industry trends, shareholder returns, performance of leases by tenants, performance on loans to customers and other matters, which reflect management's best judgment based on factors currently known. See “Cautionary Statement Concerning Forward-Looking Statements” which is incorporated herein by reference. Actual results and experience could differ materially from the anticipated results and other expectations expressed in our forward-looking statements as a result of a number of factors, including but not limited to those discussed in Item 1A - "Risk Factors" in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the SEC on May 11, 2020.

Overview

Business

Our principal business objective is to enhance shareholder value by achieving predictable and increasing Funds From Operations As Adjusted ("FFOAA") and dividends per share. Our strategy is to focus on long-term investments in the Experiential sector which benefit from our depth of knowledge and relationships, and which we believe offer sustained performance throughout all economic cycles.

Our investment portfolio includes ownership of and long-term mortgages on Experiential and Education properties. Substantially all of our owned single-tenant properties are leased pursuant to long-term, triple-net leases, under which the tenants typically pay all operating expenses of the property. Tenants at our owned multi-tenant properties are typically required to pay common area maintenance charges to reimburse us for their pro-rata portion of these costs. We also own certain experiential lodging assets structured using traditional REIT lodging structures.

It has been our strategy to structure leases and financings to ensure a positive spread between our cost of capital and the rentals or interest paid by our tenants. We have primarily acquired or developed new properties that are pre-leased to a single tenant or multi-tenant properties that have a high occupancy rate. We have also entered into certain joint ventures and we have provided mortgage note financing. We intend to continue entering into some or all of these types of arrangements in the foreseeable future.

Historically, our primary challenges have been locating suitable properties, negotiating favorable lease or financing terms (on new or existing properties), and managing our portfolio as we have continued to grow. We believe our management’s knowledge and industry relationships have facilitated opportunities for us to acquire, finance and lease properties. Our business is subject to a number of risks and uncertainties, including those described in Item 1A - "Risk Factors" in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the SEC on May 11, 2020.

As of June 30, 2020, our total assets were approximately $7.0 billion (after accumulated depreciation of approximately $1.0 billion) with properties located in 44 states and Ontario, Canada. Our total investments (a non-GAAP financial

measure) were approximately $6.7 billion at June 30, 2020. See "Non-GAAP Financial Measures" for the calculation of total investments and reconciliation of total investments to "Total assets" in the consolidated balance sheet at June 30, 2020 and December 31, 2019. We group our investments into two reportable segments, Experiential and Education. As of June 30, 2020, our Experiential investments comprised $5.9 billion, or 89%, and our Education investments comprised $0.8 billion, or 11%, of our total investments.

As of June 30, 2020, our Experiential segment consisted of the following property types (owned or financed):


•	180 theatre properties;


•	56 eat & play properties (including seven theatres located in entertainment districts);


•	18 attraction properties;


•	13 ski properties;


•	six experiential lodging properties;


•	one gaming property;


•	three cultural properties; and


•	seven fitness & wellness properties.

As of June 30, 2020, our owned Experiential real estate portfolio consisted of approximately 19.4 million square feet, was 97% leased and included $39.0 million in property under development and $22.7 million in undeveloped land inventory.

As of June 30, 2020, our legacy Education segment consisted of the following property types (owned or financed):


•	69 early childhood education center properties; and


•	16 private school properties.

As of June 30, 2020, our owned Education real estate portfolio consisted of approximately 1.9 million square feet, was 100% leased and included $3.5 million in undeveloped land inventory.

The combined owned portfolio consisted of 21.3 million square feet and was 97.3% leased.

COVID-19 Update

On March 11, 2020, the World Health Organization declared a novel strain of coronavirus (“COVID-19”) a pandemic, and on March 13, 2020, the United States declared a national emergency with respect to COVID-19. We are subject to risks and uncertainties as a result of the COVID-19 pandemic. The extent of the impact of COVID-19 on our business is highly uncertain and difficult to predict, as information is rapidly evolving. The outbreak of COVID-19 has severely impacted global economic activity and caused significant volatility and negative pressure in financial markets. The global impact of the outbreak has been rapidly evolving and many jurisdictions within the United States and abroad have reacted by instituting quarantines, mandating business and school closures and restricting travel. As a result, the COVID-19 pandemic is negatively impacting almost every industry directly or indirectly and is severely impacting experiential real estate properties given that such properties rely on social interaction and discretionary consumer spending. Substantially all of our customers' operations were temporarily closed for a portion of or all of the three months ended June 30, 2020. Certain of these customers' operations remain closed, while others have implemented re-opening plans. Specifically, most of our theatre tenants have not reopened their locations. The severity of the impact of COVID-19 on our business will depend on a number of factors, including, but not limited to, the duration and severity of the pandemic and the extent and severity of the impact on consumers and our customers, all of which are uncertain and cannot be predicted. COVID-19 has negatively affected, and COVID-19 (or a future pandemic) could have material and adverse effects on, our ability to successfully operate and on our financial condition, results of operations and cash flows.

Our Consolidated Financial Statements reflect estimates and assumptions made by management that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the Consolidated

Financial Statements and reported amounts of revenue and expenses during the reporting periods presented. We considered the impact of COVID-19 on the assumptions and estimates used in determining our financial condition and results of operations for the six months ended June 30, 2020. The following were adverse impacts to our financial statements during the six months ended June 30, 2020:


•	We recognized straight-line write-offs totaling $13.0 million, which was comprised of $5.0 million of straight-line accounts receivable and $8.0 million of sub-lessor ground lease straight-line accounts receivable. Straight-line rental revenue, net of write-offs, was a reduction to total rental revenue of $7.5 million for the six months ended June 30, 2020.


•	We increased our expected credit losses by $4.7 million from our implementation estimate of $2.2 million. This increase was primarily the result of increased fundings and the economic uncertainty and the rapidly changing environment surrounding the COVID-19 pandemic.


•	We reduced rental revenue by $4.9 million due to contractual rent abatements and $3.8 million for rent concessions for certain of our tenants due to COVID-19.

•

We deferred approximately $60.0 million of amounts due from tenants and $3.5 million due from borrowers that were booked as receivables and approximately $41.0 million of amounts due from tenants that were not booked as receivables as the full amounts were not deemed probable of collection as a result of COVID-19 pandemic. The amounts not booked as receivables remain obligations of the tenants and will be recognized as revenue when received. The repayment terms for all of these deferments vary by tenant or borrower and several are still being negotiated.


•	For the six months ended June 30, 2020, we recognized revenue from American-Multi Cinema, Inc. (AMC) as well as several smaller tenants on a cash basis. See section below titled "Recent Developments" for additional details on the agreements entered into with AMC on July 31, 2020.


•	We recognized $51.3 million in impairment charges during the three and six months ended June 30, 2020, which was comprised of $36.3 million of impairments of real estate investments, and $15.0 million of impairments of operating lease right-of-use assets.


•	We recognized impairment charges on joint ventures of $3.2 million related to our equity investments in three theatre projects located in China.


•	On March 20, 2020, we borrowed $750.0 million under our unsecured revolving credit facility as a precautionary measure to increase our cash position and preserve financial flexibility given the global uncertainty caused by the COVID-19 pandemic.

On June 29, 2020, we amended our Consolidated Credit Agreement, which governs our unsecured revolving credit facility and our unsecured term loan facility, and our Note Purchase Agreement, which governs our private placement notes. The amendments modified certain provisions and waived our obligation to comply with certain covenants under these debt agreements in light of the continuing financial and operational impacts of the COVID-19 pandemic on us and our tenants and borrowers. The modifications are generally effective during the covenant relief period, which is defined as the period of time beginning June 29, 2020 and ending on the earlier of (i) April 1, 2021 or (ii) the date on which we provides notice that we elect to terminate the covenant relief period, subject to certain conditions. The amendments also impose additional restrictions on us during the covenant relief period, including limitations on certain investments, incurrences of indebtedness, capital expenditures, payment of dividends or other distributions, and share repurchases, in each case subject to certain exceptions. See Note 8 to the Consolidated Financial Statements in this Quarterly Report on Form 10-Q for additional details.

On March 24, 2020, our Board of Trustees (the "Board") announced approval of a limited share repurchase program in response to the extraordinary dislocation in our common share price. We may repurchase up to $150 million of our common shares, but there is no requirement that we repurchase a minimum number of common shares. The share repurchase program is scheduled to expire on December 31, 2020, however, we suspended the program upon the effective date of the covenant modification agreements on June 29, 2020. During the six months ended June 30, 2020, we repurchased 4,066,716 common shares under the share repurchase program for approximately $106.0 million. The repurchases were made under a Rule 10b5-1 trading plan. There can be no assurances as to our ability to reinstitute the share repurchase program in future periods or the timing thereof.

In March, our employees transitioned to a fully remote work force to protect the safety and well-being of our personnel. Our prior investments in technology, business continuity planning and cyber-security protocols have enabled us to continue working with limited operational impacts.

For the three months ended June 30, 2020, tenants and borrowers paid approximately 21% of second quarter 2020 pre-COVID contractual cash rent and interest payments. We agreed or are in negotiations to agree to defer rent and mortgage payments for substantially all of our customers that did not pay rent or interest for this period. While deferments for this and future periods delay rent or mortgage payments, these deferments generally do not release customers from the obligation to pay the deferred amounts in the future. Deferred rent amounts are reflected in our financial statements as accounts receivable if collection is determined to be probable or will be recognized when received as variable lease payments if collection is determined to not be probable, while deferred mortgage payments are reflected as mortgage notes and related accrued interest receivable, less any allowance for credit loss. Certain agreements with tenants where remaining lease terms are extended or changes are made to rent outside of the period impacted by COVID-19 are treated as lease modifications. In these circumstances upon an executed lease modification, if the tenant is not being recognized on a cash basis, the contractual rent reflected in accounts receivable and the straight line rent receivable will be amortized over the remaining term of the lease against rental revenue. In limited cases, tenants may be entitled to the abatement of rent during governmentally imposed prohibitions on business operations which is recognized in the period to which it relates, or we may provide rent concessions to tenants. In cases where we provide concessions to tenants to which they are not otherwise entitled, those amounts are recognized in the period in which the concession is granted unless the changes are accounted for as lease modifications.

Operating Results

Our total revenue from continuing operations, net (loss) income available to common shareholders per diluted share and Funds From Operations As Adjusted ("FFOAA") per diluted share (a non-GAAP financial measure) are detailed below for the three and six months ended June 30, 2020 and 2019 (in millions, except per share information):



	Three Months Ended June 30,							Six Months Ended June 30,
	2020			2019		Change		2020			2019		Change
Total revenue from continuing operations	$	106.4		$	161.7	(34	)%	$	257.4		$	312.3	(18	)%
Net (loss) income available to common shareholders per diluted share	$	(0.90	)	$	0.79	(214	)%	$	(0.49	)	$	1.59	(131	)%
FFOAA per diluted share	$	0.41		$	1.36	(70	)%	$	1.39		$	2.73	(49	)%

The major factors impacting our results for the three and six months ended June 30, 2020, as compared to the three and six months ended June 30, 2019 were as follows:


•	The effects of COVID-19 as described above;


•	The effect of investment spending that occurred in 2020 and 2019;


•	The effect of property dispositions and mortgage note payoffs that occurred in 2020 and 2019;


•	The increase in other income and other expenses for the six months ended June 30, 2020 and a decrease in other income and other expenses for the three months ended June 30, 2020 primarily from the operations of the Kartrite Resort and Indoor Waterpark in Sullivan County, New York and the impacts of the COVID-19 pandemic on this property;


•	The decrease in termination fees included in gain on sale related to the sale of Education properties as well as lower gains on sale of real estate;


•	The decrease in transaction costs; and


•	The increase in common shares outstanding.

For further detail on items impacting our operating results, see section below titled "Results of Operations". FFOAA is a non-GAAP financial measure. For the definitions and further details on the calculations of FFOAA and certain other non-GAAP financial measures, see section below titled "Non-GAAP Financial Measures."

Critical Accounting Policies

The preparation of financial statements in conformity with accounting principles generally accepted in the United States (“GAAP”) requires management to make estimates and assumptions in certain circumstances that affect amounts reported in the accompanying consolidated financial statements and related notes. In preparing these financial statements, management has made its best estimates and assumptions that affect the reported assets and liabilities and the reported amounts of revenues and expenses during the reporting period. The most significant assumptions and estimates relate to the valuation of real estate, accounting for real estate acquisitions, assessing the collectibility of receivables and the credit loss related to mortgage and other notes receivable. Application of these assumptions requires the exercise of judgment as to future uncertainties and, as a result, actual results could differ from these estimates. A summary of critical accounting policies is included in our Annual Report on Form 10-K for the year ended December 31, 2019. For the six months ended June 30, 2020, there were no changes to critical accounting policies except for that noted in the COVID-19 discussion above and as noted below.

Collectibility of Mortgage and Notes Receivables

Our mortgage and notes receivables consist of loans originated by us and the related accrued and unpaid interest income. We regularly evaluate the collectibility of our receivables by reviewing past due balances and considering such factors as the credit quality of our borrowers, historical trends of the borrower, our historical loss experience, current portfolio, market and economic conditions and changes in borrower payment terms. We estimate our current expected credit losses on a loan by loan basis using a forward looking commercial real estate forecasting tool. We record credit loss expense and reduce our mortgage note and note receivables balances by the allowance for credit losses on a quarterly basis in accordance with ASC 326. In the event we have a past due mortgage note or note receivable and foreclosure is probable, we measure expected credit losses based on the fair value of the collateral. If foreclosure is deemed probable, and we expect to sell rather than operate the collateral, we adjust the fair value of the collateral for the estimated costs to sell. Prior to 2020, we evaluated the collectibility of our mortgage and notes receivables to determine whether the loan was impaired and if it was probable that we would be unable to collect all amounts due according to the contractual terms.

Recent Developments

Investment Spending

Our investment spending during the six months ended June 30, 2020 and 2019 totaled $53.6 million and $566.5 million, respectively, and is detailed below (in thousands):



Six Months Ended June 30, 2020
Operating Segment	Total Investment Spending		New Development		Re-development		Asset Acquisition		Mortgage Notes or Notes Receivable		Investment in Joint Ventures
Experiential:
Theatres	$	26,118	$	700	$	3,310	$	22,108	$	—	$	—
Eat & Play	12,791		12,013		778		—		—		—
Attractions	970		—		970		—		—		—
Experiential Lodging	11,106		10,708		398		—		—		—
Cultural	152		—		152		—		—		—
Fitness & Wellness	2,441		—		—		—		2,441		—
Total Experiential	53,578		23,421		5,608		22,108		2,441		—

Education:
Early Childhood Education Centers	3		—		—		—		3		—
Total Education	3		—		—		—		3		—

Total Investment Spending	$	53,581	$	23,421	$	5,608	$	22,108	$	2,444	$	—



Six Months Ended June 30, 2019
Operating Segment	Total Investment Spending		New Development		Re-development		Asset Acquisition		Mortgage Notes or Notes Receivable		Investment in Joint Ventures
Experiential:
Theatres	$	404,486	$	4,326	$	22,332	$	377,828	$	—	$	—
Eat & Play	47,267		27,854		1,892		1,321		16,200		—
Attractions	102		—		—		—		102		—
Ski	288		—		288		—		—		—
Experiential Lodging	47,870		46,121		644		—		—		1,105
Gaming	211		211		—		—		—		—
Cultural	30,463		—		—		23,963		6,500		—
Fitness & Wellness	—		—		—		—		—		—
Total Experiential	530,687		78,512		25,156		403,112		22,802		1,105

Education:
Early Childhood Education Centers	10,531		1,363		—		2,570		6,598		—
Private Schools	4,297		4,297		—		—		—		—
Public Charter Schools	21,016		16,873		—		—		4,143		—
Total Education	35,844		22,533		—		2,570		10,741		—

Total Investment Spending	$	566,531	$	101,045	$	25,156	$	405,682	$	33,543	$	1,105

The above amounts include $8 thousand and $26 thousand in capitalized payroll, $0.5 million and $4.7 million in capitalized interest and $0.2 million for both periods in capitalized other general and administrative direct project costs for the six months ended June 30, 2020 and 2019, respectively. Excluded from the table above is approximately $2.2 million and $10.2 million of maintenance capital expenditures and other spending for the six months ended June 30, 2020 and 2019, respectively.

We limited our investment spending during the six months ended June 30, 2020 to enhance our liquidity position in light of the negative impact of the COVID-19 pandemic. We will continue to limit our investment spending during the covenant relief period under the amendments to the agreements governing our bank credit facilities and private placement notes as discussed above.

Dispositions

During the six months ended June 30, 2020, we completed the sale of three early education properties for net proceeds totaling $3.8 million. In connection with these sales, we recognized a combined gain on sale of $0.2 million.

AMC Restructuring

On July 31, 2020, we entered into a Forbearance Agreement (“Forbearance Agreement”), a Master Lease Agreement (the “Master Lease”) and seven amended lease agreements (the “Transitional Leases” and collectively with the Master Lease, the “Leases”) with American Multi-Cinema, Inc. and certain affiliates (“AMC”) relating to 53 properties currently leased by us to AMC (the “Leased Properties”). We entered into the Master Lease with AMC relating to 46 theatres (“Master Lease Properties”) and amended the Transitional Leases relating to seven theatres (“Transitional Properties”), each of which is effective July 1, 2020.

Under the Leases, we agreed to reduce total annual fixed cash rent by approximately 21%, or $25.6 million to $95.9 million (including $8.0 million of ground rent and the repayment of deferral amounts for the months of April, May and June 2020 described below). We previously agreed to defer all of the fixed rent due under the Leases for the months of April, May and June 2020. The deferred amounts are included in the calculation of the new fixed cash rent of the Leases amortized over the first 14 years of the term of the applicable Lease or the expiration of the current term of the Lease, whichever is earlier. Additionally, the Master Lease has fixed escalators of 7.5% every five years on fixed rent excluding the portion attributable to deferred rent.

Pursuant to the Master Lease and the Forbearance Agreement, during the period of July 1, 2020 through December 31, 2020, AMC will pay percentage rent (15% of gross receipts) in lieu of fixed rent for the Leased Properties. The difference between the percentage rent paid and fixed rent due under the Leases represents an additional deferred amount that, beginning in February 2021, will be added to fixed cash rent and amortized over the first 14 years of the term of the applicable Lease or the expiration of the current term of the Lease, whichever is earlier. For the month of July, we do not expect percentage rent given AMC theatres had not re-opened.

The Master Lease Properties have been divided into four tranches, with the initial term of each tranche expiring annually from June 30, 2034 to June 30, 2037. The Transitional Leases have expiration dates occurring between November 2026 and March 2029.

We believe that the AMC restructuring significantly improves our long-term position with respect to AMC, while providing AMC with deferrals it needs during the pandemic and better performing theatres in the future. Specifically:


•	The Master Lease was designed with the intention that the parties will respect the master lease characterization at all times, which we believe will enhance our position in the event of a reorganization proceeding regarding AMC,


•	The lease terms on properties included in the Master Lease were increased by an average of nine years, and


•	We have the ability to reduce our exposure to AMC through the option to terminate each of the seven Transitional Leases and re-brand or sell them with the cooperation of AMC.

Impairment Charges

As a result of the COVID-19 pandemic, many of our properties temporarily closed and we negotiated and continue to negotiate lease modifications that include rent reductions or modifications. As part of this process, we reassessed the expected holding periods of such properties and determined that the estimated cash flows were not sufficient to recover the carrying values of six properties. Accordingly, we recognized impairment charges of $51.3 million, which were comprised of $36.3 million of impairments of real estate investments at six properties and $15.0 million of impairments of operating lease right-of-use assets at two of these properties. See Note 4 to the Consolidated Financial Statements in this Quarterly Report on Form 10-Q for additional information related to these impairment charges.

During the six months ended June 30, 2020, we recognized other-than-temporary impairment charges of $3.2 million on our equity investments in three theatre projects located in China. See Note 9 to the Consolidated Financial Statements in this Quarterly Report on Form 10-Q for additional information related to these impairment charges.

Results of Operations

Three and six months ended June 30, 2020 compared to the three and six months ended June 30, 2019

Analysis of Revenue

The following table summarizes our total revenue (dollars in thousands):



	Three Months Ended June 30,				Change			Six Months Ended June 30,					Change
	2020		2019					2020			2019
Minimum rent (1)	$	89,589	$	134,409	$	(44,820	)	$	227,808		$	264,906	$	(37,098	)
Percentage rent (2)	1,454		4,147		(2,693		)	4,211			5,502		(1,291		)
Straight-line rent (3)	2,229		2,520		(291		)	(7,479		)	4,765		(12,244		)
Tenant reimbursements (4)	4,169		5,843		(1,674		)	7,867			11,945		(4,078		)
Other rental revenue	90		84		6			167			177		(10		)
Total Rental Revenue	$	97,531	$	147,003	$	(49,472	)	$	232,574		$	287,295	$	(54,721	)

Other income (5)	416		5,726		(5,310		)	7,989			6,070		1,919
Mortgage and other financing income (6)	8,413		9,011		(598		)	16,809			18,902		(2,093		)
Total revenue	$	106,360	$	161,740	$	(55,380	)	$	257,372		$	312,267	$	(54,895	)

(1) For the three months ended June 30, 2020 compared to the three months ended June 30, 2019, the decrease in minimum rent resulted primarily from the impact of COVID-19, including $35.4 million for tenants for which we recognize rent on a cash basis or as restructured, $9.3 million in deferred rent not recognized because collection was determined not probable, $2.8 million in contractual rent abatements (does not include abatements related to tenant reimbursements discussed below) and $3.8 million in rent concessions. In addition, there was an increase in minimum rent from $7.1 million of rental revenue related to property acquisitions and developments completed in 2020 and 2019 and an increase of $0.5 million in rental revenue on existing properties which was partially offset by a decrease of $1.1 million from property dispositions not classified in discontinued operations.

For the six months ended June 30, 2020 compared to the six months ended June 30, 2019, the decrease in minimum rent resulted primarily from the impact of COVID-19, including $35.4 million for tenants for which we recognize rent on a cash basis or as restructured, $9.3 million in deferred rent not recognized because collection was determined not probable, $4.4 million in contractual rent abatements (does not include abatements related to tenant reimbursements discussed below) and $3.8 million in rent concessions. In addition, there was an increase in minimum rent from $16.1 million of rental revenue related to property acquisitions and developments completed in 2020 and 2019 and an increase of $1.8 million in rental revenue on existing properties which was partially offset by a decrease of $2.2 million from property dispositions not classified in discontinued operations.

During the three and six months ended June 30, 2020, we renewed four lease agreements on approximately 241 thousand square feet. We experienced an increase of 7.1% in rental rates and paid no leasing commissions with respect to these lease renewals.

(2) The decrease in percentage rent related to lower percentage rent recognized from one of our ski properties as well as from our early education tenants.

(3) For the six months ended June 30, 2020 compared to the six months ended June 30, 2019, the decrease in straight-line rent resulted primarily from write-offs totaling $13.0 million during the six months ended June 30, 2020, which was comprised of $5.0 million of straight-line accounts receivable and $8.0 million of sub-lessor ground lease straight-line accounts receivable due to the COVID-19 pandemic. This was partially offset by an increase in straight-line rent related to property acquisitions and developments completed in 2020 and 2019.

(4) The decrease in tenant reimbursements during the three and six months ended June 30, 2020 was primarily due to COVID-19 contractual abatements (which in certain cases included tenant reimbursements), tenant deferrals that were not recognized because collection was not probable and vacancies. Additionally, during the six months ended June 30, 2020, we had $1.2 million less in the gross-up of tenant reimbursed expenses for property taxes at certain properties that began paying this expense directly.

(5) The decrease in other income for the three months ended June 30, 2020 related primarily to a decrease in operating income as a result of COVID-19 closures at the Kartrite Resort and a theatre property. The increase in other income for the six months ended June 30, 2020 related primarily to the operating income from the Kartrite Resort that opened in May 2019.

(6) The decrease in mortgage and other financing income was due to the repayment of mortgage notes receivable secured by three waterpark properties and adjacent land on July 1, 2019. This was partially offset by mortgage note additions completed in 2020 and 2019.

Analysis of Expenses and Other Line Items

The following table summarizes our expenses and other line items (dollars in thousands):



	Three Months Ended June 30,							Change			Six Months Ended June 30,						Change
	2020			2019							2020			2019
Property operating expense	$	15,329		$	14,597			$	732		$	28,422		$	30,148		$	(1,726	)
Other expense (1)	2,798			8,091				(5,293		)	12,332			8,091			4,241
General and administrative expense (2)	10,432			12,230				(1,798		)	21,420			23,940			(2,520		)
Severance expense	—			—				—			—			420			(420		)
Costs associated with loan refinancing or payoff	820			—				820			820			—			820
Interest expense, net (3)	38,340			36,458				1,882			73,093			70,421			2,672
Transaction costs (4)	771			6,923				(6,152		)	1,846			12,046			(10,200		)
Credit loss expense (5)	3,484			—				3,484			4,676			—			4,676
Impairment charges (6)	51,264			—				51,264			51,264			—			51,264
Depreciation and amortization (7)	42,450			38,790				3,660			86,260			74,792			11,468
Equity in (loss) income from joint ventures (8)	(1,724		)	470				(2,194		)	(2,144		)	959			(3,103		)
Impairment charges on joint ventures (9)	(3,247		)	—			—	(3,247		)	(3,247		)	—			(3,247		)
Gain (loss) on sale of real estate	22			—				22			242			(388		)	630
Income tax benefit	1,312			1,300				12			2,063			1,905			158
Income from discontinued operations before other items (10)	—			10,399				(10,399		)	—			20,568			(20,568		)
Gain on sale of real estate from discontinued operations (11)	—			9,774				(9,774		)	—			16,490			(16,490		)
Preferred dividend requirements	(6,034		)	(6,034		)		—			(12,068		)	(12,068		)	—

(1) The decrease in other expenses for the three months ended June 30, 2020 related to a decrease in operating expenses as a result of COVID-19 closures at the Kartrite Resort and a theatre property. The increase in other expenses for the six months ended June 30, 2020 related primarily to operating expenses from the Kartrite Resort that opened in May 2019.

(2) The decrease in general and administrative expense for the three and six months ended June 30, 2020 was primarily due to a decrease in payroll and benefits costs, as well as travel and certain professional fees.

(3) The increase in interest expense, net for the three and six months ended June 30, 2020 resulted primarily from an increase in average borrowings as well as a decrease in interest cost capitalized on development projects. This was partially offset by a decrease in our weighted average interest rate on outstanding debt and an increase in interest income from short-term investments related to cash on hand.

(4) The decrease in transaction costs for the three and six months ended June 30, 2020 compared to the three and six months ended June 30, 2019 was primarily due to pre-opening costs related to the Kartrite Resort, which opened in May 2019.

(5) Credit loss expense for the three and six months ended June 30, 2020 was recognized in conjunction with our implementation of the new current expected credit losses standard (Topic 326).

(6) Impairment charges recognized during the three and six months ended June 30, 2020 related to six properties with revised estimated undiscounted cash flows and shorter hold periods as a result of the COVID-19 pandemic and was

comprised of $36.3 million of impairments of real estate investments, and $15.0 million of impairments of operating lease right-of-use assets.

(7) The increase in depreciation and amortization expense resulted primarily from acquisitions and developments completed in 2019 and 2020 as well as the acceleration of amortization on an in-place lease intangible related to a vacant property. This was partially offset by property dispositions that occurred during 2019 and 2020.

(8) The decrease in equity in (loss) income from joint ventures resulted primarily from losses recognized at our joint ventures projects located in St. Petersburg Beach, Florida, and our joint ventures in three theatre projects in China. These properties were negatively impacted due to COVID-19 closures.

(9) Impairment charges on joint ventures for the three and six months ended June 30, 2020 related to other-than-temporary impairment charges on three theatre projects located in China. See Note 9 to the Consolidated Financial Statements included in this Quarterly Report on Form 10-Q for additional information.

(10) Income from discontinued operations before other items for the three and six months ended June 30, 2019 related to the operating results of public charter school investments disposed in 2019. See Note 14 to the Consolidated Financial Statements included in this Quarterly Report on Form 10-Q for additional information on discontinued operations.

(11) Gain on sale of real estate from discontinued operations for the three months ended June 30, 2019 was related to the exercise of four tenant purchase options on public charter schools as well as the combined gain on sale of one public charter school and one land parcel. Adding to the gain on sale of real estate from discontinued operations during the six months ended June 30, 2019 was the disposition of two public charter schools pursuant to tenant purchase options and two other public charter school properties.

Liquidity and Capital Resources

Cash and cash equivalents were $1.0 billion at June 30, 2020. In addition, we had restricted cash of $2.6 million at June 30, 2020. Of the restricted cash at June 30, 2020, $2.2 million related to cash held for our borrowers’ debt service reserves for mortgage notes receivable or tenants' off-season rent reserves and $0.4 million primarily related to escrow deposits held for potential acquisitions and redevelopments.

Mortgage Debt, Senior Notes, Unsecured Revolving Credit Facility, Unsecured Term Loan Facility and Share Repurchase Program

At June 30, 2020, we had total debt outstanding of $3.9 billion of which 99% was unsecured.

At June 30, 2020, we had outstanding $2.4 billion in aggregate principal amount of unsecured senior notes (excluding the private placement notes discussed below) ranging in interest rates from 3.75% to 5.25%. The notes contain various covenants, including: (i) a limitation on incurrence of any debt which would cause the ratio of our debt to adjusted total assets to exceed 60%; (ii) a limitation on incurrence of any secured debt which would cause the ratio of secured debt to adjusted total assets to exceed 40%; (iii) a limitation on incurrence of any debt which would cause our debt service coverage ratio to be less than 1.5 times; and (iv) the maintenance at all times of our total unencumbered assets such that they are not less than 150% of our outstanding unsecured debt.

On June 29, 2020, we amended our Consolidated Credit Agreement, which governs our unsecured revolving credit facility and our unsecured term loan facility, and our Note Purchase Agreement, which governs our private placement notes. The amendments modified certain provisions and waived our obligation to comply with certain covenants under these debt agreements in light of the continuing financial and operational impacts of the COVID-19 pandemic on us and our tenants and borrowers. The changes are generally effective during the covenant relief period, which is defined as the period of time beginning June 29, 2020 and ending on the earlier of (i) April 1, 2021 or (ii) the date on which we provides notice that we elect to terminate the covenant relief period, subject to certain conditions. The loans subject to the modifications bear interest at higher rates during the covenant relief period; however, the rates will return to

previous levels at the end of such period, subject to certain conditions. See Note 8 to the Consolidated Financial Statements in this Quarterly Report on Form 10-Q for additional details.

At June 30, 2020, we had $750.0 million outstanding under our $1.0 billion unsecured revolving credit facility with interest at a floating rate of LIBOR plus 1.375% (with a LIBOR floor of 0.50%) during the covenant relief period, which was 1.875% at June 30, 2020. There is also a 0.375% facility fee. After the covenant relief period, the interest rate is scheduled to return to LIBOR plus 1.00% (with a LIBOR floor of zero) and the facility fee will return to 0.20%. These rates and facility fees are subject to changes, however, if our long-term unsecured debt ratings change as defined in the agreement.

At June 30, 2020, the unsecured term loan facility had a balance of $400.0 million with interest at a floating rate of LIBOR plus 1.75% (with a LIBOR floor of 0.50%) during the covenant relief period, which was 2.25% at June 30, 2020. After the covenant relief period, the interest rate is scheduled to return to LIBOR plus 1.10% (with a LIBOR floor of zero). These rates are subject to changes, however, if our long-term unsecured debt ratings change as defined in the agreements. As of June 30, 2020, all of this LIBOR-based debt was fixed with interest rate swaps from April 5, 2019 to February 7, 2022. During the covenant relief period, the interest rate swaps are fixed at 3.8% for $350.0 million of borrowings and 4.0% for the remaining $50.0 million of borrowings. After the covenant relief period, the interest rates for the interest rate swaps are scheduled to return to 3.15% for $350.0 million of borrowings and 3.35% for the remaining $50.0 million of borrowings.

At June 30, 2020, we had outstanding $340.0 million of senior unsecured notes that were issued in a private placement transaction. The private placement notes were issued in two tranches with $148.0 million due August 22, 2024, and $192.0 million due August 22, 2026. During the covenant relief period, the interest rates for the private placement notes are 5.00% and 5.21%, respectively, for the Series A notes due 2024 and the Series B notes due 2026 subject to change, however, if our long-term unsecured debt ratings change as defined in the agreement. After the covenant relief period, the interest rates for the private placement notes are scheduled to return to 4.35% and 4.56%, respectively.

Our unsecured credit facilities and the private placement notes contain financial covenants or restrictions that limit our levels of consolidated debt, secured debt, investment levels outside certain categories, stock repurchases and dividend distributions; and require us to maintain a minimum consolidated tangible net worth and meet certain coverage levels for fixed charges and debt service. The amendments to these debt agreements imposed a new minimum liquidity financial covenant during the covenant relief period, provided relief from compliance with certain other financial covenants during the covenant relief period and permanently modified certain other financial covenants. The amendments also impose additional restrictions on us during the covenant relief period, including limitations on certain investments, incurrences of indebtedness, capital expenditures, payment of dividends or other distributions, and share repurchases, in each case subject to certain exceptions. In addition, the amendments require us to cause certain of our key subsidiaries to guarantee our obligations and pledge the equity interests of such subsidiary guarantors upon the occurrence of certain events during the covenant relief period. See Note 8 to the Consolidated Financial Statements in this Quarterly Report on Form 10-Q for additional details regarding these amendments.

Additionally, our unsecured credit facilities, private placement notes and unsecured senior notes contain cross-default provisions if we default under other indebtedness exceeding certain amounts. Those cross-default thresholds vary from $25.0 million to, in the case of the note purchase agreement governing the private placement notes, $75.0 million. Certain of our other long-term debt agreements contain customary restrictive covenants related to financial and operating performance as well as certain cross-default provisions. We were in compliance with all financial and other covenants under our debt instruments at June 30, 2020.

Our principal investing activities are acquiring, developing and financing Experiential and Education properties. These investing activities have generally been financed with senior unsecured notes, as well as the proceeds from equity offerings. Our unsecured revolving credit facility is also used to finance the acquisition or development of properties, and to provide mortgage financing. We have and expect to continue to issue debt securities in public or private offerings. We have and may in the future assume mortgage debt in connection with property acquisitions or incur new mortgage debt on existing properties. We may also issue equity securities in connection with acquisitions. Continued growth of our real estate investments and mortgage financing portfolios will depend in part on our continued ability to access

funds through additional borrowings and securities offerings and, to a lesser extent, our ability to assume debt in connection with property acquisitions. We may also fund investments with the proceeds from asset dispositions.

During the six months ended June 30, 2020 our Board of Trustees approved a share repurchase program to which we may repurchase up to $150.0 million of our common shares. The share repurchase program is scheduled to expire on December 31, 2020; however, we suspended the program on the effective date of the covenant modification agreements, June 29, 2020, as discussed above. During three and six months ended June 30, 2020, we repurchased 4,066,716 common shares under the share repurchase program for approximately $106.0 million. The repurchases were made under a Rule 10b5-1 trading plan.

Liquidity Requirements

Short-term liquidity requirements consist primarily of normal recurring corporate operating expenses, debt service requirements and distributions to shareholders and, to a lesser extent, share repurchases. We have historically met these requirements primarily through cash provided by operating activities. The table below summarizes our cash flows (dollars in thousands):



	Six Months Ended June 30,
	2020			2019
Net cash provided by operating activities	$	57,413		$	209,756
Net cash used by investing activities	(52,978		)	(461,196		)
Net cash provided by financing activities	473,879			244,761

We currently anticipate that our cash on hand, cash from operations and proceeds from asset dispositions will provide adequate liquidity to meet our financial commitments for the next 12 months, including to fund our operations, make interest and principal payments on our debt, allow distributions to our preferred shareholders, and allow distributions to our common shareholders to avoid corporate level federal income or excise tax in accordance with REIT Internal Revenue Code requirements.

As discussed above, we have agreed to defer rent and mortgage payments for substantially all of our customers as a result of the COVID-19 pandemic. Accordingly, in the near term, we expect to fund our short-term liquidity requirements primarily with cash on hand, including funds borrowed under our unsecured revolving credit facility.

Commitments

As of June 30, 2020, we had 10 development projects with commitments to fund an aggregate of approximately $81.7 million, of which approximately $43.1 million is expected to be funded in 2020. Development costs are advanced by us in periodic draws. If we determine that construction is not being completed in accordance with the terms of the development agreement, we can discontinue funding construction draws. We have agreed to lease the properties to the operators at pre-determined rates upon completion of construction.

We have certain commitments related to our mortgage notes and notes receivable investments that we may be required to fund in the future. We are generally obligated to fund these commitments at the request of the borrower or upon the occurrence of events outside of our direct control. As of June 30, 2020, we had three mortgage notes with commitments totaling approximately $25.9 million. If commitments are funded in the future, interest will be charged at rates consistent with the existing investments.

In connection with construction of our development projects and related infrastructure, certain public agencies require posting of surety bonds to guarantee that our obligations are satisfied. These bonds expire upon the completion of the improvements or infrastructure. As of June 30, 2020, we had two surety bonds outstanding totaling $31.6 million.

Liquidity Analysis

As noted above, we had $750.0 million outstanding under our unsecured revolving credit facility. We borrowed these funds on March 20, 2020 as a precautionary measure to increase our cash position and preserve financial flexibility in light of current uncertainty in the global markets due to the COVID-19 pandemic. In addition, we deferred our anticipated gaming venue investment and all other uncommitted investment spending due to unfavorable market conditions. We

believe our unrestricted cash position of approximately $1.0 billion will strengthen our balance sheet and aid us in this time of market disruption.

We have no scheduled debt payments due until 2022. We currently believe that we will be able to repay, extend, refinance or otherwise settle our debt maturities as the debt comes due and that we will be able to fund our remaining commitments, as necessary. However, there can be no assurance that additional financing or capital will be available, or that terms will be acceptable or advantageous to us, particularly in light of the current economic uncertainty caused by the COVID-19 pandemic.

Our primary use of cash after paying operating expenses, debt service, distributions to shareholders, funding share repurchases and funding existing commitments is in growing our investment portfolio through the acquisition, development and financing of additional properties. We expect to finance these investments with borrowings under our unsecured revolving credit facility as well as debt and equity financing alternatives or proceeds from asset dispositions. The availability and terms of any such financing or sales will depend upon market and other conditions, which have been negatively impacted by the COVID-19 pandemic. If we borrow the maximum amount available under our unsecured revolving credit facility, there can be no assurance that we will be able to obtain additional or substitute investment financing. We may also assume mortgage debt in connection with property acquisitions.

Our investment spending and uses of cash during the covenant relief period will be subject to limitations under the amendments to the agreements governing our unsecured credit facilities and private placement notes as discussed above. In addition, in certain circumstances, we will be required to apply 100% of the proceeds, net of certain costs, received during the covenant relief period from certain sales and dispositions, debt issuances or equity issuances, in each case, subject to certain exceptions, to repay amounts outstanding under our unsecured credit facilities and private placement notes.

Capital Structure

We believe that our shareholders are best served by a conservative capital structure. Therefore, we seek to maintain a conservative debt level on our balance sheet as measured primarily by our net debt to adjusted EBITDA ratio (see "Non-GAAP Financial Measures" for definitions). We also seek to maintain conservative interest, fixed charge, debt service coverage and net debt to gross asset ratios.

We expect to maintain our net debt to adjusted EBITDA ratio over the long-term between 4.6x to 5.6x. Our net debt to adjusted EBITDA was not meaningful at June 30, 2020 given the temporary disruption caused by COVID-19 and the associated accounting for tenant rent deferrals and other lease modifications. Our net debt to gross assets ratio was 41% as of June 30, 2020 (see "Non-GAAP financial measures" for calculation).

Non-GAAP Financial Measures

Funds From Operations (FFO), Funds From Operations As Adjusted (FFOAA) and Adjusted Funds From Operations (AFFO)

The National Association of Real Estate Investment Trusts (“NAREIT”) developed FFO as a relative non-GAAP financial measure of performance of an equity REIT in order to recognize that income-producing real estate historically has not depreciated on the basis determined under GAAP. Pursuant to the definition of FFO by the Board of Governors of NAREIT, we calculate FFO as net income available to common shareholders, computed in accordance with GAAP, excluding gains and losses from disposition of real estate and impairment losses on real estate, plus real estate related depreciation and amortization, and after adjustments for unconsolidated partnerships, joint ventures and other affiliates. Adjustments for unconsolidated partnerships, joint ventures and other affiliates are calculated to reflect FFO on the same basis. We have calculated FFO for all periods presented in accordance with this definition.

In addition to FFO, we present FFOAA and AFFO. FFOAA is presented by adding to FFO costs associated with loan refinancing or payoff, transaction costs, severance expense, preferred share redemption costs, impairment of operating lease right-of-use assets, termination fees associated with tenants' exercises of public charter school buy-out options

and credit loss expense and subtracting deferred income tax (benefit) expense. AFFO is presented by adding to FFOAA non-real estate depreciation and amortization, deferred financing fees amortization, share-based compensation expense to management and Trustees and amortization of above and below market leases, net and tenant allowances; and subtracting maintenance capital expenditures (including second generation tenant improvements and leasing commissions), straight-lined rental revenue (removing impact of straight-line ground sublease expense), and the non-cash portion of mortgage and other financing income.

FFO, FFOAA and AFFO are widely used measures of the operating performance of real estate companies and are provided here as a supplemental measure to GAAP net income available to common shareholders and earnings per share, and management provides FFO, FFOAA and AFFO herein because it believes this information is useful to investors in this regard. FFO, FFOAA and AFFO are non-GAAP financial measures. FFO, FFOAA and AFFO do not represent cash flows from operations as defined by GAAP and are not indicative that cash flows are adequate to fund all cash needs and are not to be considered alternatives to net income or any other GAAP measure as a measurement of the results of our operations or our cash flows or liquidity as defined by GAAP. It should also be noted that not all REITs calculate FFO, FFOAA and AFFO the same way so comparisons with other REITs may not be meaningful.

The following table summarizes our FFO, FFOAA and AFFO including per share amounts for FFO and FFOAA, for the three and six months ended June 30, 2020 and 2019 and reconciles such measures to net income available to common shareholders, the most directly comparable GAAP measure (unaudited, in thousands, except per share information):



	Three Months Ended June 30,						Six Months Ended June 30,
	2020			2019			2020			2019
FFO:
Net (loss) income available to common shareholders of EPR Properties	$	(68,999	)	$	60,560		$	(37,915	)	$	119,875
Gain on sale of real estate	(22		)	(9,774		)	(242		)	(16,102		)
Impairment of real estate investments, net (1)	36,255			—			36,255			—
Real estate depreciation and amortization	42,151			42,098			85,676			81,612
Allocated share of joint venture depreciation	378			554			761			1,109
Impairment charges on joint ventures	3,247			—			3,247			—
FFO available to common shareholders of EPR Properties	$	13,010		$	93,438		$	87,782		$	186,494

FFO available to common shareholders of EPR Properties	$	13,010		$	93,438		$	87,782		$	186,494
Add: Preferred dividends for Series C preferred shares	—			1,939			—			3,878
Add: Preferred dividends for Series E preferred shares	—			1,939			—			3,878
Diluted FFO available to common shareholders of EPR Properties	$	13,010		$	97,316		$	87,782		$	194,250
FFOAA:
FFO available to common shareholders of EPR Properties	$	13,010		$	93,438		$	87,782		$	186,494
Costs associated with loan refinancing or payoff	820			—			820			—
Transaction costs	771			6,923			1,846			12,046
Severance expense	—			—			—			420
Termination fee included in gain on sale	—			6,533			—			11,534
Impairment of operating lease right-of-use assets (1)	15,009			—			15,009			—
Credit loss expense	3,484			—			4,676			—
Deferred income tax benefit	(1,676		)	(1,675		)	(2,789		)	(2,284		)
FFOAA available to common shareholders of EPR Properties	$	31,418		$	105,219		$	107,344		$	208,210



	Three Months Ended June 30,						Six Months Ended June 30,
	2020			2019			2020			2019
FFOAA available to common shareholders of EPR Properties	$	31,418		$	105,219		$	107,344		$	208,210
Add: Preferred dividends for Series C preferred shares	—			1,939			—			3,878
Add: Preferred dividends for Series E preferred shares	—			1,939			—			3,878
Diluted FFOAA available to common shareholders of EPR Properties	$	31,418		$	109,097		$	107,344		$	215,966
AFFO:
FFOAA available to common shareholders of EPR Properties	$	31,418		$	105,219		$	107,344		$	208,210
Non-real estate depreciation and amortization	299			257			584			486
Deferred financing fees amortization	1,651			1,517			3,285			3,019
Share-based compensation expense to management and trustees	3,463			3,283			6,972			6,460
Amortization of above and below market leases, net and tenant allowances	(108		)	(58		)	(260		)	(117		)
Maintenance capital expenditures (2)	(1,291		)	(510		)	(2,219		)	(807		)
Straight-lined rental revenue	(2,229		)	(3,223		)	7,479			(5,637		)
Straight-lined ground sublease expense	207			205			383			389
Non-cash portion of mortgage and other financing income	(97		)	(1,069		)	(188		)	(2,083		)
AFFO available to common shareholders of EPR Properties	$	33,313		$	105,621		$	123,380		$	209,920

FFO per common share:
Basic	$	0.17		$	1.23		$	1.13		$	2.47
Diluted	0.17			1.22			1.13			2.45
FFOAA per common share:
Basic	$	0.41		$	1.38		$	1.39		$	2.76
Diluted	0.41			1.36			1.39			2.73
Shares used for computation (in thousands):
Basic	76,310			76,164			77,388			75,426
Diluted	76,310			76,199			77,388			75,467

Weighted average shares outstanding-diluted EPS	76,310			76,199			77,388			75,467
Effect of dilutive Series C preferred shares	—			2,158			—			2,151
Effect of dilutive Series E preferred shares	—			1,628			—			1,625
Adjusted weighted average shares outstanding-diluted Series C and Series E	76,310			79,985			77,388			79,243

Other financial information:
Dividends per common share	$	0.3825		$	1.1250		$	1.5150		$	2.2500

Amounts above include the impact of discontinued operations, which are separately classified in the consolidated statements of (loss) income and comprehensive (loss) income included in this Quarterly Report on Form 10-Q. See Note 14 to the Consolidated Financial Statements in this Quarterly Report on Form 10-Q for additional information related to discontinued operations.

(1) Impairment charges recognized during the three and six months ended June 30, 2020 totaled $51.3 million, which was comprised of $36.3 million of impairments of real estate investments and $15.0 million of impairments of operating lease right-of-use assets.

(2) Includes maintenance capital expenditures and certain second-generation tenant improvements and leasing commissions.

The effect of the conversion of our convertible preferred shares is calculated using the if-converted method and the conversion which results in the most dilution is included in the computation of per share amounts. The conversion of the 5.75% Series C cumulative convertible preferred shares and the 9.00% Series E cumulative convertible preferred

shares would be dilutive to FFO and FFOAA per share for the three and six months ended June 30, 2019. Therefore, the additional common shares that would result from the conversion and the corresponding add-back of the preferred dividends declared on those shares are included in the calculation of diluted FFO and FFOAA per share for these periods.

Net Debt

Net Debt represents debt (reported in accordance with GAAP) adjusted to exclude deferred financing costs, net and reduced for cash and cash equivalents. By excluding deferred financing costs, net and reducing debt for cash and cash equivalents on hand, the result provides an estimate of the contractual amount of borrowed capital to be repaid, net of cash available to repay it. We believe this calculation constitutes a beneficial supplemental non-GAAP financial disclosure to investors in understanding our financial condition. Our method of calculating Net Debt may be different from methods used by other REITs and, accordingly, may not be comparable to such other REITs.

Gross Assets

Gross Assets represents total assets (reported in accordance with GAAP) adjusted to exclude accumulated depreciation and reduced for cash and cash equivalents. By excluding accumulated depreciation and reducing cash and cash equivalents, the result provides an estimate of the investment made by us. We believe that investors commonly use versions of this calculation in a similar manner. Our method of calculating Gross Assets may be different from methods used by other REITs and, accordingly, may not be comparable to such other REITs.

Net Debt to Gross Assets

Net Debt to Gross Assets is a supplemental measure derived from non-GAAP financial measures that we use to evaluate capital structure and the magnitude of debt to gross assets. We believe that investors commonly use versions of this ratio in a similar manner. Our method of calculating Net Debt to Gross Assets may be different from methods used by other REITs and, accordingly, may not be comparable to such other REITs.

EBITDAre

NAREIT developed EBITDAre as a relative non-GAAP financial measure of REITs, independent of a company's capital structure, to provide a uniform basis to measure the enterprise value of a company. Pursuant to the definition of EBITDAre by the Board of Governors of NAREIT, we calculate EBITDAre as net income, computed in accordance with GAAP, excluding interest expense (net), income tax (benefit) expense, depreciation and amortization, gains and losses from disposition of real estate, impairment losses on real estate, costs associated with loan refinancing or payoff and adjustments for unconsolidated partnerships, joint ventures and other affiliates.

Management provides EBITDAre herein because it believes this information is useful to investors as a supplemental performance measure as it can help facilitate comparisons of operating performance between periods and with other REITs. Our method of calculating EBITDAre may be different from methods used by other REITs and, accordingly, may not be comparable to such other REITs. EBITDAre is not a measure of performance under GAAP, does not represent cash generated from operations as defined by GAAP and is not indicative of cash available to fund all cash needs, including distributions. This measure should not be considered an alternative to net income or any other GAAP measure as a measurement of the results of our operations or cash flows or liquidity as defined by GAAP.

Adjusted EBITDA

Management uses Adjusted EBITDA in its analysis of the performance of the business and operations of the Company. Management believes Adjusted EBITDA is useful to investors because it excludes various items that management believes are not indicative of operating performance, and that it is an informative measure to use in computing various financial ratios to evaluate the Company. We define Adjusted EBITDA as EBITDAre (defined above) for the quarter excluding severance expense, credit loss expense, transaction costs, impairment losses on operating lease right-of-use assets and prepayment fees.

Our method of calculating Adjusted EBITDA may be different from methods used by other REITs and, accordingly, may not be comparable to such other REITs. Adjusted EBITDA is not a measure of performance under GAAP, does not represent cash generated from operations as defined by GAAP and is not indicative of cash available to fund all cash needs, including distributions. This measure should not be considered as an alternative to net income or any other GAAP measure as a measurement of the results of our operations or cash flows or liquidity as defined by GAAP.

Reconciliations of debt, total assets and net (loss) income available to common shareholders (all reported in accordance with GAAP) to Net Debt, Gross Assets, Net Debt to Gross Assets, EBITDAre and Adjusted EBITDA (each of which is a non-GAAP financial measure) are included in the following tables (unaudited, in thousands):



	June 30,
	2020			2019
Net Debt:
Debt	$	3,854,088		$	3,216,623
Deferred financing costs, net	35,907			31,957
Cash and cash equivalents	(1,006,981		)	(6,927		)
Net Debt	$	2,883,014		$	3,241,653
Gross Assets:
Total Assets	$	7,002,978		$	6,746,655
Accumulated depreciation	1,034,771			954,806
Cash and cash equivalents	(1,006,981		)	(6,927		)
Gross Assets	$	7,030,768		$	7,694,534

Net Debt to Gross Assets	41		%	42		%

	Three Months Ended June 30,
	2020			2019
EBITDAre and Adjusted EBITDA:
Net (loss) income	$	(62,965	)	$	66,594
Interest expense, net	38,340			36,278
Income tax benefit	(1,312		)	(1,300		)
Depreciation and amortization	42,450			42,355
Gain on sale of real estate	(22		)	(9,774		)
Impairment of real estate investments, net (1)	36,255			—
Costs associated with loan refinancing or payoff	820			—
Equity in loss (income) from joint ventures	1,724			(470		)
Impairment charges on joint ventures	3,247			—
EBITDAre	$	58,537		$	133,683
Transaction costs	771			6,923
Credit loss expense	3,484			—
Impairment of operating lease right-of-use assets (1)	15,009			—
Adjusted EBITDA	$	77,801		$	140,606

Amounts above include the impact of discontinued operations, which are separately classified in the consolidated statements of (loss) income and comprehensive (loss) income included in this Quarterly Report on Form 10-Q.
(1) Impairment charges recognized during the three and six months ended June 30, 2020 totaled $51.3 million, which was comprised of $36.3 million of impairments of real estate investments and $15.0 million of impairments of operating lease right-of-use assets.

Total Investments

Total investments is a non-GAAP financial measure defined as the sum of the carrying values of real estate investments (before accumulated depreciation), land held for development, property under development, mortgage notes receivable (including related accrued interest receivable), investment in joint ventures, intangible assets, gross (before accumulated amortization and included in other assets) and notes receivable and related accrued interest receivable, net (included in other assets). Total investments is a useful measure for management and investors as it illustrates across which asset categories the Company's funds have been invested. Our method of calculating total investments may be different from methods used by other REITs and, accordingly, may not be comparable to such other REITs. A reconciliation of total investments to total assets (computed in accordance with GAAP) is included in the following table (unaudited, in thousands):



	June 30, 2020			December 31, 2019
Total Investments:
Real estate investments, net of accumulated depreciation	$	5,110,059		$	5,197,308
Add back accumulated depreciation on real estate investments	1,034,771			989,254
Land held for development	26,244			28,080
Property under development	39,039			36,756
Mortgage notes and related accrued interest receivable	357,668			357,391
Investment in joint ventures	28,925			34,317
Intangible assets, gross (1)	58,784			57,385
Notes receivable and related accrued interest receivable, net (1)	14,037			14,026
Total investments	$	6,669,527		$	6,714,517

Total investments	$	6,669,527		$	6,714,517
Operating lease right-of-use assets	189,058			211,187
Cash and cash equivalents	1,006,981			528,763
Restricted cash	2,615			2,677
Accounts receivable	134,774			86,858
Less: accumulated depreciation on real estate investments	(1,034,771		)	(989,254		)
Less: accumulated amortization on intangible assets (1)	(14,624		)	(12,693		)
Prepaid expenses and other current assets (1)	49,418			35,456
Total assets	$	7,002,978		$	6,577,511

(1) Included in other assets in the accompanying consolidated balance sheet. Other assets include the following:

	June 30, 2020			December 31, 2019
Intangible assets, gross	$	58,784		$	57,385
Less: accumulated amortization on intangible assets	(14,624		)	(12,693		)
Notes receivable and related accrued interest receivable, net	14,037			14,026
Prepaid expenses and other current assets	49,418			35,456
Total other assets	$	107,615		$	94,174

Impact of Recently Issued Accounting Standards

See Note 2 to the Consolidated Financial Statements included in this Quarterly Report on Form 10-Q for additional information on the impact of recently issued accounting standards on our business.

Item 3. Quantitative and Qualitative Disclosures About Market Risk

We are exposed to market risks, primarily relating to potential losses due to changes in interest rates and foreign currency exchange rates. We seek to mitigate the effects of fluctuations in interest rates by matching the term of new investments with new long-term fixed rate borrowings whenever possible. As of June 30, 2020, we had a $1.0 billion unsecured revolving credit facility with $750.0 million outstanding. We also had a $400.0 million unsecured term loan facility and a $25.0 million bond that bear interest at a floating rate but have been fixed through interest rate swap agreements.

As of June 30, 2020, we had a 65% investment interest in two unconsolidated real estate joint ventures related to two recreation anchored lodging properties located in St. Petersburg Beach, Florida. At June 30, 2020, the joint venture had an $85.0 million secured mortgage loan with an outstanding balance of $61.2 million. The mortgage loan bears interest at an annual rate equal to the greater of 6.00% or LIBOR plus 3.75%. On March 28, 2019, the joint venture entered into an interest rate cap agreement to limit the variable portion of the interest rate (LIBOR) on this note at 3.0% from March 28, 2019 to April 1, 2023.

We are subject to risks associated with debt financing, including the risk that existing indebtedness may not be refinanced or that the terms of such refinancing may not be as favorable as the terms of current indebtedness, particularly in light of the current economic uncertainty caused by the COVID-19 pandemic. The majority of our borrowings are subject to contractual agreements or mortgages which limit the amount of indebtedness we may incur. Accordingly, if we are unable to raise additional equity or borrow money due to these limitations, our ability to make additional real estate investments may be limited.

We are exposed to foreign currency risk against our functional currency, the U.S. dollar, on our four Canadian properties and the rents received from tenants of the properties are payable in CAD. In order to hedge our net investment in our four Canadian properties, we entered into two fixed-to-fixed cross-currency swaps, with a fixed notional value of $200.0 million CAD. These investments became effective on July 1, 2018, mature on July 1, 2023 and are designated as net investment hedges of our Canadian net investments. The net effect of this hedge is to lock in an exchange rate of $1.32 CAD per U.S. dollar on $200.0 million CAD of our foreign net investments. The cross-currency swaps also have a monthly settlement feature locked in at an exchange rate of $1.32 CAD per USD on $4.5 million of CAD annual cash flows, the net effect of which is an excluded component from the effectiveness testing of this hedge.

During the six months ended June 30, 2020, we entered into three USD-CAD cross-currency swaps that were effective July 1, 2020 with a total fixed original notional value of $100.0 million CAD and $76.6 million USD. The net effect of these swap is to lock in an exchange rate of $1.31 CAD per USD on approximately $7.2 million annual CAD denominated cash flows through June 2022.

For foreign currency derivatives designated as net investment hedges, the change in the fair value of the derivatives are reported in AOCI as part of the cumulative translation adjustment. Amounts are reclassified out of AOCI into earnings when the hedged net investment is either sold or substantially liquidated.

See Note 10 to the Consolidated Financial Statements included in this Quarterly Report on Form 10-Q for additional information on our derivative financial instruments and hedging activities.

Item 4. Controls and Procedures

Evaluation of disclosures controls and procedures

As of June 30, 2020, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures, as such term is defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. Based upon and as of the date of that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective to provide reasonable assurance that information required to be disclosed by us in reports we file or submit under the Exchange Act is (1) recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms, and (2) accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Limitations on the effectiveness of controls

Our disclosure controls were designed to provide reasonable assurance that the controls and procedures would meet their objectives. Our management, including the Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls will prevent all error and all fraud. A control system, no matter how well designed and operated, can provide only reasonable assurance of achieving the designed control objectives and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusions of two or more people, or by management override of the control. Because of the inherent limitations in a cost-effective, maturing control system, misstatements due to error or fraud may occur and not be detected.

Change in internal controls

Effective January 1, 2020, we adopted ASC 326, Financial Instruments - Credit Losses. Except for the enhancements to the Company's internal control over financial reporting in relation to our adoption of this standard, there have not been any changes in the Company’s internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter of the fiscal year to which this report relates that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

PART II - OTHER INFORMATION

Item 1. Legal Proceedings

We are subject to certain claims and lawsuits in the ordinary course of business, the outcome of which cannot be determined at this time. In the opinion of management, any liability we might incur upon the resolution of these claims and lawsuits will not, in the aggregate, have a material adverse effect on our consolidated financial position or results of operations.

Item 1A. Risk Factors

There have been no material changes to the risk factors associated with our business previously disclosed in Item 1A - "Risk Factors" in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed with the SEC on May 11, 2020.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

Issuer Purchases of Equity Securities



Period	Total Number of Shares Purchased	Average Price Paid Per Share		Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs			Maximum Number (or Approximate Dollar Value) of Shares that May Yet Be Purchased Under the Plans or Programs
April 1 through April 30, 2020 common shares	1,015,731	$	20.04	1,015,731	(1	)	$	129,648,479
May 1 through May 31, 2020 common shares	2,502,982	26.84		2,502,982	(1	)	62,475,234
June 1 through June 30, 2020 common shares	548,003	33.70		548,003	(1	)	44,006,350

Total	4,066,716	$	26.06	4,066,716			$	44,006,350

(1) On March 24, 2020, we announced that our Board of Trustees approved a share repurchase program pursuant to which we may repurchase up to $150 million of our common shares. The share repurchase program is scheduled to expire on December 31, 2020; however, we suspended the program upon the effective date of the covenant modification agreements, June 29, 2020, as discussed above under "Management's Discussion and Analysis of Financial Condition and Results of Operations." Under the share repurchase program, we could repurchase our common shares in the open market, through block trades, in privately negotiated transactions, pursuant to a trading plan separately adopted in the future, or by other means, in accordance with federal securities laws and other applicable laws. The actual timing, number and value of common shares repurchased under the share repurchase program was determined by management at its discretion and depended on a number of factors, including, but not limited to, the market price of our common shares, general market and economic conditions, our financial condition, and applicable legal requirements. We were not obligated to repurchase a minimum number of common shares under the share repurchase program. There can be no assurances as to our ability to reinstitute the share repurchase program in future periods or the timing thereof.

Dividends

As discussed above under "Management's Discussion and Analysis of Financial Condition and Results of Operations," on June 29, 2020, we amended our Consolidated Credit Agreement, which governs our unsecured revolving credit facility and our unsecured term loan facility, as well as the Note Purchase Agreement, which governs our private placement notes. The amendments modified certain provisions and waived our obligation to comply with certain covenants under these debt agreements in light of the continuing financial and operational impacts of the COVID-19 pandemic on us and our tenants and borrowers. The modifications are effective during the covenant relief period, which is defined as the period of time beginning June 29, 2020 and ending the earlier of (i) April 1, 2021 or (ii) the date on which we provide notice that we elect to terminate the covenant relief period, subject to certain conditions.

In connection with these covenant modifications, we temporarily suspended our monthly cash dividend to common shareholders after the common share dividend payable May 15, 2020 (except as may be necessary to maintain REIT status and to not owe income tax). There can be no assurances as to our ability to reinstitute cash dividend payments to common shareholders in future periods or the timing thereof.

Item 3. Defaults Upon Senior Securities

There were no reportable events during the quarter ended June 30, 2020.

Item 4. Mine Safety Disclosures

Not applicable.

Item 5. Other Information

There were no reportable events during the quarter ended June 30, 2020.

Item 6. Exhibits



3.1*	Composite of Amended and Restated Declaration of Trust of the Company (inclusive of all amendments through June 1, 2020), is attached hereto as Exhibit 3.1.
10.1*	Amendment No. 1 to Second Amended, Restated and Consolidated Credit Agreement, dated as of June 29, 2020, among the Company, as borrower, KeyBank National Association, as administrative agent, and the other agents and lenders party thereto.
10.2*	Second Amendment to Note Purchase Agreement, dated as of June 29, 2020, among the Company and the institutional investors party thereto.
31.1*	Certification of Gregory K. Silvers pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, is attached hereto as Exhibit 31.1.
31.2*	Certification of Mark A. Peterson pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, is attached hereto as Exhibit 31.2.
32.1**	Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, is attached hereto as Exhibit 32.1.
32.2**	Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, is attached hereto as Exhibit 32.2.
101.INS*	XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.
101.SCH*	Inline XBRL Taxonomy Extension Schema
101.CAL*	Inline XBRL Extension Calculation Linkbase
101.DEF*	Inline XBRL Taxonomy Extension Definition Linkbase
101.LAB*	Inline XBRL Taxonomy Extension Label Linkbase
101.PRE*	Inline XBRL Taxonomy Extension Presentation Linkbase
104*	Cover Page Interactive Data File (formatted in Inline XBRL and contained in Exhibit 101)

* Filed herewith.

** Furnished herewith.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.



		EPR Properties

Dated:	August 6, 2020	By	/s/ Gregory K. Silvers
			Gregory K. Silvers, President and Chief Executive Officer (Principal Executive Officer)

Dated:	August 6, 2020	By	/s/ Tonya L. Mater
			Tonya L. Mater, Senior Vice President and Chief Accounting Officer (Principal Accounting Officer)

Exhibit 3.1

COMPOSITE COPY OF

AMENDED AND RESTATED

DECLARATION OF TRUST

EPR PROPERTIES

(As Amended Through June 1, 2020)

EPR Properties, a Maryland real estate investment trust (the "Trust") under Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland ("Title 8"), desires to amend and restate its Declaration of Trust as currently in effect and as hereinafter amended.

The following provisions are all of the provisions of the Declaration of Trust currently in effect as hereinafter amended:

FIRST: The name of the real estate investment trust (the "Trust") is: EPR Properties. Under circumstances in which the Board of Trustees of the Trust (the "Board of Trustees" or "Board") determines that the use of the name of the Trust is not practicable or advisable, the Trust may use any other designation or name for the Trust.

SECOND: The Trust is a real estate investment trust within the meaning of Title 8. The Trust shall not be deemed to be a general partnership, limited partnership, joint venture, joint stock company or a corporation (but nothing herein shall preclude the Trust from being treated for tax purposes as an association under the Internal Revenue Code of 1986, as amended (the "Code")).

THIRD: The purposes for which the Trust is formed is to engage in any lawful act or activity for which real estate investment trusts may be formed under the laws of the State of Maryland.

FOURTH: The current address of the principal office of the Trust is 1221 Baltimore Avenue, Kansas City, Missouri 64105. The post office address of the principal office of the Trust in the State of Maryland is c/o The Prentice-Hall Corporation System, Maryland, 11 East Chase Street, Baltimore, Maryland 21202. The name and address of the resident agent of the Trust in the State of Maryland is The Prentice-Hall Corporation System, Maryland, 11 East Chase Street, Baltimore, Maryland 21202. The resident agent is a corporation located in the State of Maryland.

FIFTH:

Section 1.The number of Trustees of the Trust shall initially be five (5), which number may be increased or decreased from time to time by the vote of a majority of the entire Board of Trustees, but such number shall in no case be less than three. Any such determination shall be by the Board of Trustees and shall continue in effect unless and until changed by the Board of Trustees, but no such changes shall affect the term of any Trustee then serving. A majority of the entire Board of Trustees shall constitute a quorum for the transaction of business.

Section 2.Each person elected as a Trustee of the Trust after the 2018 annual meeting of shareholders, whether to succeed a person whose term of office as a Trustee has expired (including the expiration of such person’s term) or to fill any vacancy, shall be elected for a term expiring at the next annual meeting. Each Trustee elected at or prior to the 2018 annual meeting of shareholders shall be deemed to serve

as a member of the class of Trustees to which he or she was so elected for the term elected. At and after the 2021 annual meeting of shareholders, the Trustees shall no longer be classified with respect to the time for which they hold office. Notwithstanding the foregoing, each Trustee shall hold office until a successor has been elected or qualified or until his or her earlier death, resignation or removal.

Section 3.(a) A Trustee shall perform his or her duties as a trustee, including his or her duties as a member of a committee of the Board of Trustees on which he or she serves:

(i) in good faith;

(ii) in a manner he or she reasonably believes to be in the best interest of the Trust; and

(iii) with the care that an ordinarily prudent person in a like position would use under similar circumstances.

(b) In performing his or her duties, a Trustee is entitled to rely on any information, opinion, report or statement, including any financial statement or other financial data, prepared or presented by:

(i) an officer or employee of the Trust whom the Trustee reasonably believes to be reliable and competent in the matters presented;

(ii) a lawyer, certified public accountant, investment banker or other person, as to the matter which the Trustee reasonably believes to be within the person's professional or expert competence; or

(iii) a committee of the Board of Trustees on which the Trustee does not serve, as to a matter within its designated authority, if the Trustee reasonably believes the committee to merit confidence.

Section 4.Any Trustee may resign by written notice to the Board, effective upon execution and delivery to the Trust of such written notice or upon any future date specified in the notice. Subject to the rights of holders of one or more classes or series of Preferred Shares to elect or remove one or more Trustees, a Trustee may be removed at any time, for cause, at a meeting of the shareholders, by the affirmative vote of two thirds of all the votes entitled to be cast generally in the election of Trustees.

For purposes of this Section 4, "cause" shall mean and be limited to any one of the following:

(a) A Trustee is guilty of gross negligence or willful misconduct in the performance of his or her services on behalf of the Trust; or

(b) A Trustee is guilty of a material act or omission in the performance of his or her services on behalf of the Trust:

(i) which was committed in bad faith; or

(ii) which was the result of active and deliberate dishonesty; or

(iii) from which the Trustee actually received an improper personal benefit in money, property or services; or

(c) A Trustee is guilty of a criminal act in the performance of his or her services on behalf of the Trust in which the Trustee had reasonable cause to believe his or her act was unlawful.

SIXTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Trustees is expressly authorized to make, alter, amend or repeal the Bylaws of the Trust. The Declaration of Trust shall be construed with the presumption in favor of the grant of power and authority to the Board. Any construction of the Declaration of Trust or determination made in good faith by the Board concerning its powers and authority hereunder shall be conclusive.

SEVENTH:

Section 5.Indemnification. The Trust shall, to the maximum extent permitted by Maryland law in effect from time to time, indemnify (a) any individual who is a present or former trustee or officer of the Trust or (b) any individual who, while a trustee or officer of the Trust and at the request of the Trust, serves or has served as a director, officer, shareholder, partner, trustee, employee or agent of any real estate investment trust, corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise, from and against any claim, liability, judgment, penalty, fine or amount paid in settlement, together with reasonable expenses actually incurred in advance of final disposition of a proceeding, to which such person may become subject or which such person may incur by reason of his or her status as such. The Trust shall have the power, with the approval of its Board of Trustees, to provide such indemnification and advancement of expenses to a person who served a predecessor of the Trust in any of the capacities described in (a) or (b) above and to any employee or agent of the Trust or a predecessor of the Trust.

Section 6.Insurance. The Trust may purchase and maintain insurance on behalf of any person who is or was a trustee, officer, employee or agent of the Trust or who, while a trustee, officer, employee or agent of the Trust is or was serving at the request of the Trust as a director, officer, shareholder, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against liability asserted against or incurred by such person in that capacity or arising from such person's status as such, whether or not the Trust would have the power to indemnify such person against the same liability under Section 1 of this Article SEVENTH.

EIGHTH:

Section 7.Authorized Shares. The beneficial interest of the Trust shall be divided into shares of beneficial interest (the "Shares"). The Trust has authority to issue 100,000,000 common shares of beneficial interest, $0.01 par value per share ("Common Shares"), and 25,000,000 preferred shares of beneficial interest, $0.01 par value per share ("Preferred Shares"). The Board of Trustees, without any action by the shareholders of the Trust, may amend the Declaration of Trust from time to time to increase or decrease the aggregate number of Shares or the number of Shares of any class that the Trust has authority to issue. If shares of one class of beneficial interest are classified or reclassified into shares of another class of beneficial interest pursuant to Sections 2, 3 or 4 of this Article EIGHTH, the number of authorized shares of the former class shall be automatically decreased and the number of authorized shares of the latter class shall be automatically increased, in each case by the number of shares so classified or reclassified, so that the aggregate number of shares of beneficial interest of all classes that the Trust has authority to issue shall not be more than the total number of shares of beneficial interest set forth in the second sentence of this paragraph.

Section 8.Common Shares. Subject to the provisions of Article NINTH, each Common Share shall entitle the holder thereof to one vote on each matter upon which holders of Common Shares are entitled

to vote. The Board of Trustees may reclassify any unissued Common Shares from time to time in one or more classes or series of Shares.

Section 9.Preferred Shares. The Board of Trustees may classify any unissued Preferred Shares and reclassify any previous classified but unissued Preferred Shares of any series from time to time in one or more series of Shares.

Section 10.Classified or Reclassified Shares. Prior to issuance of classified or reclassified Shares of any class or series, the Board of Trustees by resolution shall (a) designate that class or series to distinguish it from all other classes and series of Shares; (b) specify the number of Shares to be included in the class or series; (c) set, subject to the provisions of Article NINTH and subject to the express terms of any class or series of Shares outstanding at the time, the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms and conditions of redemption for each class or series; and (d) cause the Trust to file articles supplementary with the State Department of Assessments and Taxation of Maryland (the "SDAT"). Any of the terms of any class or series of Shares set pursuant to clause (c) of this Section 4 may be made dependent upon facts ascertainable outside the Declaration of Trust (including the occurrence of any event, including a determination or action by the Trust or any other person or body) and may vary among holders thereof, provided that the manner in which such facts or variations shall operate upon the terms of such class or series of Shares is clearly and expressly set forth in the articles supplementary filed with the SDAT.

Section 11.Authorization by Board of Share Issuance. The Board of Trustees may authorize the issuance from time to time of Shares of any class or series, whether now or hereafter authorized, or securities or rights convertible into Shares of any class or series, whether now or hereafter authorized, for such consideration (whether in cash, property, past or future services, obligation for future payment or otherwise) as the Board of Trustees may deem advisable (or without consideration in the case of a Share split or Share dividend), subject to such restrictions or limitations, if any, as may be set forth in the Declaration of Trust or the Bylaws of the Trust.

Section 12.Dividends and Distributions. The Board of Trustees may from time to time authorize and declare to shareholders such dividends or distributions, in cash or other assets of the Trust or in securities of the Trust or from any other source as the Board of Trustees in its discretion shall determine. The Board of Trustees shall endeavor to authorize and declare such dividends and distributions as shall be necessary for the Trust to qualify as a real estate investment trust under the Code; however, shareholders shall have no right to any dividend or distribution unless and until authorized and declared by the Board. The exercise of the powers and rights of the Board of Trustees pursuant to this Section 6 shall be subject to provisions of any class or series of Shares at the time outstanding. Notwithstanding any other provision in the Declaration of Trust, no determination shall be made by the Board of Trustees nor shall any transaction be entered into by the Trust which would cause any Shares or other beneficial interest in the Trust not to constitute "transferable shares" or "transferable certificates of beneficial interest" under Section 856(a)(2) of the Code or which would cause any distribution to constitute a preferential dividend as described in Section 562(c) of the Code.

Section 13.General Nature of Shares. All Shares shall be personal property entitling the shareholders only to those rights provided in the Declaration of Trust. The shareholders shall have no interest in the property of the Trust and shall have no right to compel any partition, division, dividend or distribution of the Trust or of the property of the Trust. The death of a shareholder shall not terminate the Trust. The Trust is entitled to treat as shareholders only those persons in whose names Shares are registered as holders of Shares on the beneficial interest ledger of the Trust.

Section 14.Fractional Shares. The Trust may, without the consent or approval of any shareholder, issue fractional Shares, eliminate a fraction of a Share by rounding up or down to a full Share, arrange for the disposition of a fraction of a Share by the person entitled to it, or pay cash for the fair value of a fraction of a Share.

Section 15.Declaration and Bylaws. All shareholders are subject to the provisions of the Declaration of Trust and the Bylaws of the Trust.

Section 16.Declaration and Combinations of Shares. Subject to an express provision to the contrary in the terms of any class or series of beneficial interest hereafter authorized, the Board of Trustees shall have the power to divide or combine the outstanding shares of any class or series of beneficial interest, without a vote of shareholders, so long as the number of shares combined into one share in any such combination or series of combinations within any period of twelve months is not greater than 100.

NINTH:

Section 1.Definitions. For the purposes of this Article NINTH, the following terms shall have the following meanings:

"Beneficial Ownership" shall mean ownership of Shares by a Person who (i) would be treated as an owner of such Shares under section 542(a)(2) of the Code either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code or (ii) would be treated as an owner of such Shares under Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms "Beneficial Owner," "Beneficially Owns," "Beneficially Own" and "Beneficially Owned" shall have the correlative meanings.

"Charitable Beneficiary" shall mean an organization or organizations described in Sections 170(b)(1)(A) and 170(c) of the Code and identified by the Board of Trustees as the beneficiary or beneficiaries of the Excess Share Trust.

"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.

"Excess Shares" shall mean Shares resulting from an event described in Section 3 of this Article NINTH.

"Excess Share Trust" shall mean the trust created pursuant to Section 3 and Section 14 of this Article NINTH.

"Excess Share Trustee" shall mean a person, who shall be unaffiliated with the Trust, any Purported Beneficial Transferee and any Purported Record Transferee, identified by the Board of Trustees as the trustee of the Excess Share Trust.

"Fair Market Value" shall mean the last reported sales price reported on the New York Stock Exchange for Shares on the trading day immediately preceding the relevant date, or if not then traded on the New York Stock Exchange, the last reported sales price for Shares on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over or through which such Shares may be traded, or if not then traded over or through any exchange or quotation system, then the market price of such Shares on the relevant date as determined in good faith by the Board of Trustees.

"Initial Public Offering" shall mean the sale of Shares to the public pursuant to the Trust's first effective registration statement for such Shares under the Securities Act of 1933, as amended.

"Ownership Limit" shall initially mean 9.8%, in number of Shares or value, of the outstanding Shares of any class or series of Common Stock or Preferred Stock of the Trust. The number and value of the outstanding Shares of any class or series of Common Stock or Preferred Stock of the Trust shall be determined by the Board of Trustees in good faith, which determination shall be conclusive for all purposes hereof.

"Person" shall mean an individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.

"Purported Beneficial Transferee" shall mean, with respect to any purported Transfer which results in Excess Shares, as defined below in Section 3 of this Article NINTH, the Person who would have been the beneficial holder of the Shares, if such Transfer had been valid under Section 2 of this Article NINTH.

"Purported Record Transferee" shall mean, with respect to any purported Transfer which results in Excess Shares, as defined below in Section 3 of this Article NINTH, the Person who would have been the record holder of the Shares, if such Transfer had been valid under Section 2 of this Article NINTH.

"REIT" shall mean a real estate investment trust under Section 856 of the Code.

"REIT Provisions of the Code" means Sections 856 through 860 of the Code and any successor or other provisions of the Code relating to real estate investment trusts (including provisions as to the attribution of ownership of beneficial interests therein) and the regulations promulgated thereunder.

"Restriction Termination Date" shall mean the first day after the date of the Initial Public Offering on which the Board of Trustees determines that it is no longer in the best interests of the Trust to attempt to, or continue to, qualify as a REIT.

"Shares" shall mean the shares of the Trust as may be authorized and issued from time to time pursuant to Article EIGHTH.

"Transfer" shall mean any sale, transfer, gift, assignment, devise or other disposition of Shares (including (a) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Shares, (b) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Shares and (c) any transfer or other disposition of any interest in Shares as a result of a change in the marital status of the holder thereof), whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise. The terms "Transfers" and "Transferred" shall have the correlative meanings.

Section 2.Ownership Limitation.

(A)Except as provided in Section 11 and Section 19 of this Article NINTH and subject to clause (E) of this Section 2, from the date of the Initial Public Offering until the Restriction Termination Date, no Person, or Persons acting as a group, shall Beneficially Own Shares in excess of the Ownership Limit.

(B)Except as provided in Section 11 and Section 19 of this Article NINTH and subject to clause (E) of this Section 2, from the date of the Initial Public Offering until the Restriction Termination Date, any

Transfer that, if effective, would result in any Person Beneficially Owning Shares in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Shares which would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Shares.

(C)Except as provided in Section 11 and Section 19 of this Article NINTH and subject to clause (E) of this Section 2, from the date of the Initial Public Offering until the Restriction Termination Date, any Transfer that, if effective, would result in the Shares being beneficially owned (as provided in Section 856(a) of the Code) by less than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the Transfer of such Shares which would be otherwise beneficially owned (as provided in Section 856(a) of the Code) by the transferee; and the intended transferee shall acquire no rights in such Shares.

(D)Except as provided in Section 11 and Section 19 of this Article NINTH and subject to clause (E) of this Section 2, from the date of the Initial Public Offering until the Restriction Termination Date, any Transfer that, if effective, would result in the Trust being "closely held" within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of the Shares which would cause the Trust to be "closely held" within the meaning of Section 856(h) of the Code; and the intended transferee shall acquire no rights in such Shares.

(E)Nothing contained in this Article NINTH shall preclude the settlement of any transaction entered into through the facilities of the New York Stock Exchange. The fact that the settlement of any transaction occurs or takes place shall not negate the effect of any other provision of this Article NINTH and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Article NINTH.

Section 3.Excess Shares.

(A)If, notwithstanding the other provisions contained in this Article NINTH, at any time after the date of the Initial Public Offering until the Restriction Termination Date, there is a purported Transfer such that any Person would Beneficially Own Shares in excess of the applicable Ownership Limit, then, except as otherwise provided in Section 11 of this Article NINTH, Shares directly owned by such Person in excess of the Ownership Limit shall be automatically designated as Excess Shares (without reclassification) until such Person does not own Shares in excess of the applicable Ownership Limit. The designation of such Shares as Excess Shares shall be effective as of the close of business on the business day prior to the date of the purported Transfer. If, after designation of such Shares owned directly by a Person as Excess Shares, such Person still owns Shares in excess of the applicable Ownership Limit, Shares Beneficially Owned by such Person constructively in excess of the Ownership Limit shall be designated as Excess Shares until such Person does not own Shares in excess of the applicable Ownership Limit. Where such Person owns Shares constructively through one or more Persons and the Shares held by such other Persons must be designated as Excess Shares, the designation of Shares as Excess Shares held by such other Persons shall be pro rata.

(B)If, notwithstanding the other provisions contained in this Article NINTH, at any time after the date of the Initial Public Offering until the Restriction Termination Date, there is a purported Transfer of Shares or any sale, transfer, gift, assignment, devise or other disposition of shares or other interests of a direct or indirect shareholder of the Trust which, if effective, would cause the Trust to become "closely held" within the meaning of Section 856(h) of the Code, then any Shares being Transferred which would cause the Trust to be "closely held" within the meaning of Section 856(h) of the Code (rounded up to the nearest whole Share) shall be automatically designated as Excess Shares and be treated as provided in this Article NINTH.

Such designation and treatment shall be effective as of the close of business on the business day prior to the date of the purported Transfer. If, after the designation of any such Shares as Excess Shares, the Trust is still "closely held" within the meaning of Section 856(h) of the Code, an amount of Shares owned directly by any individual whose Beneficial Ownership of Shares in the Trust increased as a result of the sale, transfer, gift, assignment, devise or other disposition of shares or other interests of a direct or indirect shareholder of the Trust and is one of the five individuals who caused the Trust to be "closely held" within the meaning of Section 856(h) of the Code, shall be automatically designated as Excess Shares until the Trust is not "closely held" within the meaning of Section 856(h) of the Code. Where several similarly situated individuals exist, the designation of Shares as Excess Shares shall be pro rata. If, after applying the foregoing provisions the Trust is still "closely held" within the meaning of Section 856(h) of the Code, any Shares constructively owned by such individuals shall be designated as Excess Shares, on a pro rata basis among similarly situated individuals, until the Trust is not "closely held" within the meaning of Section 856(h) of the Code.

(C)If, at any time after the date of the Initial Public Offering until the Restriction Termination Date, an event other than a purported Transfer (an "Event") occurs which would cause any Person to Beneficially Own Shares in excess of the Ownership Limit, then, except as otherwise provided in Section 11 of this Article NINTH, Shares Beneficially Owned by such Person in excess of the Ownership Limit shall be automatically designated as Excess Shares to the extent necessary to eliminate such excess ownership. The designation of Shares as Excess Shares shall be effective as of the close of business on the business day prior to the date of the Event. In determining which Shares are designated as Excess Shares, Shares Beneficially Owned by any Person who caused the Event to occur shall be designated as Excess Shares before any Shares not so held are designated. Where several similarly situated Persons exist, the designation of Shares as Excess Shares shall be pro rata. If any Person is required to designate Shares as Excess Shares pursuant to this Clause (C) of this Section 3 of this Article NINTH, such Person shall first designate Shares directly held by such Person before designating Shares Beneficially Owned constructively. Where such Person owns Shares constructively through one or more Persons and the Shares held by such other Persons must be designated as Excess Shares, the designation of Shares by such other Persons shall be pro rata.

Section 4.Prevention of Transfer. If the Board of Trustees or its designee shall at any time determine in good faith that a Transfer has taken place in violation of Section 2 of this Article NINTH or that a Person intends to acquire or has attempted to acquire Beneficial Ownership (determined without reference to any rules of attribution) of any Shares in violation of Section 2 of this Article NINTH, the Board of Trustees or its designee shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer, including, but not limited to, refusing to give effect to such Transfer on the books of the Trust or instituting proceedings to enjoin such Transfer; provided, however, that any Transfers or attempted Transfers in violation of Section 2 of this Article NINTH shall automatically result in the designation and treatment described in Section 3 of this Article NINTH, irrespective of any action (or non-action) by the Board of Trustees.

Section 5.Notice to Trust. Any Person who acquires or attempts to acquire Shares in violation of Section 2 of this Article NINTH, or any Person who is a transferee such that Excess Shares result under Section 3 of this Article NINTH, shall immediately give written notice or, in the event of a proposed or attempted Transfer, give at least 15 days prior written notice to the Trust of such event. Such person shall also provide to the Trust such other information as the Trust may request in order to determine the effect, if any, of such Transfer or attempted Transfer on the Trust's status as a REIT and shall execute and deliver such instruments and provide such further cooperation and assistance as the Board of Trustees deems advisable to preserve the status of the Trust as a REIT.

Section 6.Information for Trust. From the date of the Initial Public Offering until the Restriction Termination Date:

(A)every Beneficial Owner of more than 5% (or such other lower percentages as required pursuant to regulations under the Code) of the number or value of any class or series of Common Stock or Preferred Stock of the Trust shall, within 30 days after January 1 of each year, give written notice to the Trust stating the name and address of such Beneficial Owner, the number of Shares of such class or series of Common Stock or Preferred Stock Beneficially Owned, and a description of how such Shares are held. Each such Beneficial Owner shall provide to the Trust such additional information as the Trust may reasonably request in order to determine the effect, if any, of such Beneficial Ownership on the Trust's status as a REIT and to ensure compliance with the Ownership Limit.

(B)each Person who is a Beneficial Owner of Shares and each Person (including the shareholder of record) who is holding Shares for a Beneficial Owner shall provide to the Trust in writing such information with respect to direct, indirect and constructive ownership of Shares as the Board of Trustees deems reasonably necessary to comply with the provisions of the Code applicable to a REIT, to determine the Trust's status as a REIT, to comply with the requirements of any taxing authority or governmental agency or to determine any such compliance.

Section 7.Other Actions by Board. Subject to Section 2 of this Article NINTH, nothing contained in this Article NINTH shall limit the authority of the Board of Trustees to take such other action as it deems necessary or advisable to protect the Trust and the interests of its shareholders by preservation of the Trust's status as a REIT, provided, however, that no provision of this Section 7 shall preclude the settlement of any transaction entered into through the facilities of the New York Stock Exchange.

Section 8.Ambiguities. In the case of an ambiguity in the application of any of the provisions of this Article NINTH, including any definition contained in Section 1, the Board of Trustees shall have the power to determine the application of the provisions of this Article NINTH with respect to any situation based on the facts known to it. In the event this Article NINTH requires or permits an action by the Board of Trustees and the Declaration of Trust fails to provide specific guidance with respect to such action, the Board of Trustees shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of Article NINTH.

Section 9.Increase or Decrease in Ownership Limits. Subject to the limitations provided in Section 10 of this Article NINTH, the Board of Trustees may from time to time increase or decrease the Ownership Limit; provided, however, that any decrease may only be made prospectively as to subsequent holders (other than a decrease as a result of a retroactive change in existing law that would require a decrease to retain REIT status, in which case such decrease shall be effective immediately).

Section 10.Limitations on Changes in Ownership Limits.

(A)The Ownership Limit may not be increased if, after giving effect to such increase, five individual Beneficial Owners of Shares could Beneficially Own, in the aggregate, more than 49.9% in number or value of the outstanding Shares.

(B)Prior to the modification of any Ownership Limit pursuant to Section 9 of this Article NINTH, the Board of Trustees may require such opinions of counsel, affidavits, undertakings or agreements as it may deem necessary or advisable in order to determine or ensure the Trust's status as a REIT.

(C)No Ownership Limit may be increased to a percentage which is greater than 9.9%.

Section 11.Waivers by the Board. The Board of Trustees with a ruling from the Internal Revenue Service, an opinion of counsel to the effect that such exemption will not result in the Trust being "closely held" within the meaning of Section 856(h) of the Code, or such other evidence as the Board of Trustees deems necessary in its sole discretion may exempt, on such conditions and terms as the Board of Trustees deems necessary in its sole discretion, a Person from the Ownership Limit if the Board of Trustees obtains such representations and undertakings from such Person as the Board of Trustees may deem appropriate and such Person agrees that any violation of the terms of such exemption or attempted violation of the same will result in, to the extent necessary, the designation of Shares held by such Person as Excess Shares in accordance with Section 3 of this Article NINTH.

Section 12.Legend. Each certificate for Shares shall bear substantially the following legend:

The securities represented by this certificate are subject to restrictions on ownership and transfer for the purpose of the Trust's maintenance of its status as a real estate investment trust under the Internal Revenue Code of 1986, as amended. Except as otherwise provided pursuant to the Declaration of Trust of the Trust, no Person may Beneficially Own Shares in excess of 9.8% (or such greater percentage as may be determined by the Board of Trustees of the Trust) of the number or value of the outstanding Shares of any class or series of the Common Stock or Preferred Stock of the Trust. Any Person who attempts or proposes to Beneficially Own Shares in excess of the above limitations must notify the Trust in writing at least 15 days prior to such proposed or attempted Transfer. All capitalized terms in this legend have the meanings defined in the Declaration of Trust of the Trust, a copy of which, including the restrictions on transfer, will be furnished to each shareholder on request and without charge. If the restrictions on transfer are violated, the securities represented hereby which are in excess of the above limitations will be designated and treated as Excess Shares which will be held in trust by the Excess Share Trustee for the benefit of the Charitable Beneficiary.

Instead of the foregoing legend, the certificate may state that the Trust will furnish a full statement about certain restrictions on transferability to a shareholder on request and without charge.

Section 13.Severability. If any provision of this Article NINTH or any application of any such provision is determined to be void, invalid or unenforceable by any court having jurisdiction over the issue, the validity and enforceability of the remaining provisions shall be affected only to the extent necessary to comply with the determination of such court.

Section 14.Transfer of Excess Shares. Upon any purported Transfer that results in Excess Shares pursuant to Section 3 of this Article NINTH, such Excess Shares shall be deemed to have been transferred to the Excess Share Trustee, as trustee of a special trust for the exclusive benefit of the Charitable Beneficiary. The Trust shall name a Charitable Beneficiary, if one does not already exist, within five days of the discovery of any designation of any Excess Shares; however, the failure to so name a Charitable Beneficiary shall not affect the designation of Shares as Excess Shares or the transfer thereof to the Excess Share Trustee. Excess Shares so held in trust shall be issued and outstanding Shares of the Trust. The Purported Record Transferee or Purported Record Holder shall have no rights in such Excess Shares except as provided in Section 17 of this Article NINTH.

Section 15.Distributions on Excess Shares. Any dividends (whether taxable as a dividend, return of capital or otherwise) on Excess Shares shall be paid to the Excess Share Trust for the benefit of the Charitable Beneficiary. Upon liquidation, dissolution or winding up, the Purported Record Transferee shall receive, for each Excess Share, the lesser of (1) the amount per share of any distribution made upon liquidation, dissolution or winding up or (2) the price paid by the Purported Record Transferee for the Excess Shares, or if the Purported Record Transferee did not give value for the Excess Shares, the Fair Market Value of the Excess Shares on the day of the event causing the Excess Shares to be held in trust. Any such dividend paid or distribution paid to the Purported Record Transferee in excess of the amount provided in the preceding sentence prior to the discovery by the Trust that the Shares with respect to which the dividend or distribution was made had been designated as Excess Shares shall be repaid, upon demand, to the Excess Share Trust for the benefit of the Charitable Beneficiary.

Section 16.Voting of Excess Shares. The Excess Share Trustee shall be entitled to vote the Excess Shares on behalf of the Charitable Beneficiary on any matter. Subject to Maryland law, any vote cast by a Purported Record Transferee with respect to the Excess Shares prior to the discovery by the Trust that the Excess Shares were held in trust will be rescinded ab initio; provided, however, that if the Trust has already taken irreversible action with respect to a merger, reorganization, sale of all or substantially all the assets, dissolution of the Trust or other action by the Trust, then the vote cast by the Purported Record Transferee shall not be rescinded. The owner of the Excess Shares will be deemed to have given an irrevocable proxy to the Excess Share Trustee to vote the Excess Shares for the benefit of the Charitable Beneficiary.

Notwithstanding the provisions of this Article NINTH, until the Trust has received notification that Excess Shares have been transferred into an Excess Share Trust, the Trust shall be entitled to rely on its share transfer and other shareholder records for purposes of preparing lists of shareholders entitled to vote at meetings, determining the validity and authority of proxies and otherwise conducting votes of shareholders.

Section 17.Non-Transferability of Excess Shares. Excess Shares shall be transferable only as provided in this Section 17. At the direction of the Board of Trustees, the Excess Share Trustee shall transfer the Shares held in the Excess Share Trust to a Person or Persons whose ownership of such Shares will not violate the Ownership Limit. If such a transfer is made to such a Person or Persons, the interest of the Charitable Beneficiary shall terminate and proceeds of the sale shall be payable to the Purported Record Transferee and to the Charitable Beneficiary. The Purported Record Transferee shall receive the lesser of (1) the price paid by the Purported Record Transferee for the Shares or, if the Purported Record Transferee did not give value for the Shares, the Fair Market Value of the Shares on the day of the event causing the Shares to be held in trust, or (2) the price received by the Excess Share Trust from the sale or other disposition of the Shares. Any proceeds in excess of the amount payable to the Purported Record Transferee will be paid to the Charitable Beneficiary. The Excess Share Trustee shall be under no obligation to obtain the highest possible price for the Excess Shares. Prior to any transfer of any Excess Shares by the Excess Share Trustee, the Trust must have waived in writing its purchase rights under Section 18. It is expressly understood that the Purported Record Transferee may enforce the provisions of this Section against the Charitable Beneficiary.

If any of the foregoing restrictions on transfer of Excess Shares is determined to be void, invalid or unenforceable by any court of competent jurisdiction, then the Purported Record Transferee may be deemed, at the option of the Trust, to have acted as an agent of the Trust in acquiring such Excess Shares in trust and to hold such Excess Shares on behalf of the Trust.

Section 18.Call by Trust on Excess Shares. Excess Shares shall be deemed to have been offered for sale to the Trust, or its designee, at a price per Share equal to the lesser of (a) the price per Share in the transaction that created such Excess Shares (or, in the case of a devise, gift or other transaction in which no

value was given for such Excess Shares, the Fair Market Value at the time of such devise, gift or other transaction) and (b) the Fair Market Value of the Excess Shares on the date the Trust, or its designee, accepts such offer (the "Redemption Price"). The Trust shall have the right to accept such offer for a period of ninety days after the later of (x) the date of the Purported Transfer which resulted in such Excess Shares and (y) the date the Board of Trustees determines in good faith that a Transfer resulting in Excess Shares has occurred, if the Trust does not receive a notice of such Transfer pursuant to Section 5 of this Article NINTH but in no event later than a permitted Transfer pursuant to and in compliance with the terms of Section 17 of this Article NINTH. Unless the Board of Trustees determines that it is in the interests of the Trust to make earlier payments of all of the amount determined as the Redemption Price per Share in accordance with the preceding sentence, the Redemption Price may be payable at the option of the Board of Trustees at any time up to but not later than the five years after the date the Trust accepts the offer to purchase the Excess Shares. In no event shall the Trust have an obligation to pay interest to the Purported Record Transferee.

Section 19.Underwritten Offerings. The Ownership Limit shall not apply to the acquisition of Shares or rights, options or warrants for, or securities convertible into, Shares by an underwriter in a public offering, provided that the underwriter makes a timely distribution of such Shares or rights, options or warrants for, or securities convertible into, Shares.

Section 20.Enforcement. The Trust is authorized specifically to seek equitable relief, including injunctive relief, to enforce the provisions of this Article NINTH.

Section 21.Non-Waiver. No delay or failure on the part of the Trust or the Board of Trustees in exercising any right hereunder shall operate as a waiver of any right of the Trust or the Board of Trustees, as the case may be, except to the extent specifically waived in writing.

TENTH:

Section 1.Meetings. There shall be an annual meeting of the shareholders, to be held on such notice and at such time (after the delivery of the annual report) and location, within or without the State of Maryland, as shall be determined by or in the manner prescribed in the Bylaws, for the election of the Trustees, if required, and for the transaction of any other business within the powers of the Trust. Except as otherwise provided in the Declaration of Trust, special meetings of shareholders may be called in the manner provided in the Bylaws. If there are no Trustees, the officers of the Trust shall promptly call a special meeting of the shareholders entitled to vote for the election of successor Trustees. Any meeting may be adjourned and reconvened as the Trustees determine or as provided in the Bylaws.

Section 2.Voting Rights. Subject to the provisions of any class or series of Shares then outstanding, the shareholders shall be entitled to vote only on the following matters: (a) election of Trustees as provided in ARTICLE FIFTH and the removal of Trustees as provided in ARTICLE FIFTH; (b) amendment of the Declaration of Trust as provided in ARTICLE TWELFTH; (c) termination of the Trust as provided in ARTICLE FIFTEENTH; (d) merger or consolidation of the Trust, or the sale or disposition of substantially all of the Trust Property, as provided in ARTICLE FOURTEENTH; and (e) such other matters with respect to which the Board of Trustees has adopted a resolution declaring that a proposed action is advisable and directing that the matter be submitted to the shareholders for approval or ratification. Except with respect to the foregoing matters, no action taken by the shareholders at any meeting shall in any way bind the Board of Trustees. Elections of Trustees need not be by written ballot unless the Bylaws of the Trust so provide.

Section 3.Preemptive and Appraisal Rights. Except as may be provided by the Board of Trustees in setting the terms of classified or reclassified Shares pursuant to ARTICLE EIGHTH or as may be otherwise

agreed by contract, no holder of Shares shall, as such holder, (a) have any preemptive right to purchase or subscribe for any additional Shares of the Trust or any other security of the Trust which it may issue or sell or (b) except as expressly required by Title 8, have any right to require the Trust to pay him the fair value of his Shares in an appraisal or similar proceeding.

Section 4.Shareholder Vote. Except as specifically provided in ARTICLE FIFTH, notwithstanding any provision of law permitting or requiring any action to be taken or authorized by the affirmative vote of the holders of a greater number of votes, any such action shall be effective and valid if taken or authorized by a majority of the number of votes entitled to be cast on the matter.

Section 5.Board Approval. The submission of any action to the shareholders for their consideration shall first be approved by the Board of Trustees.

Section 6.Actions by Shareholders without a Meeting. The Bylaws of the Trust may provide that any action required or permitted to be taken by the shareholders may be taken without a meeting by the written consent of the shareholders entitled to cast a sufficient number of votes to approve the matter as required by statute, the Declaration of Trust or the Bylaws of the Trust, as the case may be.

Section 7.Books. The books of the Trust may be kept (subject to applicable law) outside the State of Maryland at such place or places as may be designated from time to time by the Board of Trustees or in the Bylaws of the Trust.

ELEVENTH: The Trust reserves the right to amend, alter, change or repeal any provision contained in this Declaration of Trust (including the contract rights of any outstanding Shares) in the manner now or hereafter prescribed or permitted by statute. All rights at any time conferred upon the shareholders of the Trust by this Declaration of Trust are granted subject to the reservations in this Article ELEVENTH.

TWELFTH: Except as otherwise specifically provided herein, any amendment to this Declaration of Trust shall be approved by the affirmative vote of a majority of all the votes entitled to be cast on the matter. The Board of Trustees may amend this Declaration of Trust from time to time to qualify the Trust as a REIT under the Code or Title 8 by the affirmative vote of not less than two thirds of the Trustees, without the consent of any shareholders.

THIRTEENTH: To the maximum extent that Maryland law in effect from time to time permits limitation of the liability of trustees and officers, no trustee or officer of the Trust shall be liable to the Trust or its shareholders for money damages. Neither the amendment nor repeal of this Article THIRTEENTH, nor the adoption or amendment of any other provision of the Declaration of Trust or Bylaws of the Trust inconsistent with this Article THIRTEENTH, shall apply to or affect in any respect the applicability of the preceding sentence with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption. In the absence of any Maryland statute limiting the liability of trustees and officers of a Maryland real estate investment trust for money damages in a suit by or on behalf of the Trust or by any shareholder, no Trustee or officer of the Trust shall be liable to the Trust or to any shareholder for money damages except to the extent that (a) the Trustee or officer actually received an improper benefit or profit in money, property, or services, in which event such Trustee or officer shall be liable for the amount of the benefit or profit in money, property, or services actually received; or (b) a judgment or other final adjudication adverse to the Trustee or officer is entered in a proceeding based on a finding in the proceeding that the Trustee's or officer's action or failure to act was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding.

FOURTEENTH: Subject to the provisions of any class or series of Shares at the time outstanding, the Trust may (a) merge the Trust with or into another entity, (b) consolidate the Trust with one or more other entities into a new entity or (c) sell, lease, exchange or otherwise transfer all or substantially all of the Trust Property. Any such action must be approved by the Board of Trustees in the manner provided in Title 8 and, after notice to all shareholders entitled to vote on the matter, by the affirmative vote of a majority of all the votes entitled to be cast on the matter.

FIFTEENTH:

Section 1.Duration. The Trust shall continue perpetually unless terminated pursuant to Section 2 of this ARTICLE FIFTEENTH or any applicable provision of Title 8.

Section 2.Termination.

(a) Subject to the provisions of any class or series of Shares at the time outstanding, the Trust may be terminated at any meeting of shareholders, by the affirmative vote of a majority of all the votes entitled to be cast on the matter. Upon the termination of the Trust:

(i) The Trust shall carry on no business except for the purpose of winding up its affairs.

(ii) The Trustees shall proceed to wind up the affairs of the Trust and all of the powers of the Trustees under the Declaration of Trust shall continue, including the powers to fulfill or discharge the Trust's contracts, collect its assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or any part of the remaining property of the Trust to one or more persons at public or private sale for consideration which may consist in whole or in part of cash, securities or other property of any kind, discharge or pay its liabilities and do all other acts appropriate to liquidate its business.

(iii) After paying or adequately providing for the payment of all liabilities, and upon receipt of such releases, indemnities and agreements as the Board of Trustees deem necessary for their protection, the Trust may distribute the remaining property of the Trust among the shareholders so that after payment in full or the setting apart for payment of such preferential amounts, if any, to which the holders of any Shares at the time outstanding shall be entitled, the remaining property of the Trust shall, subject to any participating or similar rights of Shares at the time outstanding, be distributed ratably among the holders of Common Shares at the time outstanding.

(b) After termination of the Trust, the liquidation of its business and the distribution to the shareholders as herein provided, a majority of the Trustees shall execute and file with the Trust's records a document certifying that the Trust has been duly terminated, and the Trustees shall be discharged from all liabilities and duties hereunder, and the rights and interests of all shareholders shall cease.

SIXTEENTH: The undersigned Chairman acknowledges this Declaration of Trust to be the act of the Trust and as to all matters or facts required to be verified under oath, the undersigned Chairman acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

SEVENTEENTH: This Declaration of Trust is executed by the undersigned Trustee and delivered in the State of Maryland with reference to the laws thereof, and the rights of all parties and the validity, construction and effect of every provision hereof shall be subject to and construed according to the laws of the State of Maryland without regard to conflicts of laws provisions thereof.

EIGHTEENTH: Any certificate shall be final and conclusive as to any person dealing with the Trust if executed by the Secretary or an Assistant Secretary of the Trust or a Trustee, and if certifying to: (a) the number or identity of Trustees, officers of the Trust or shareholders; (b) the due authorization of the execution of any document; (c) the action or vote taken, and the existence of a quorum, at a meeting of the Board of Trustees or shareholders; (d) a copy of the Declaration of Trust or of the Bylaws as a true and complete copy as then in force; (e) an amendment to the Declaration of Trust; (f) the termination of the Trust; or (g) the existence of any fact relating to the affairs of the Trust. No purchaser, lender, transfer agent or other person shall be bound to make any inquiry concerning the validity of any transaction purporting to be made by the Trust on its behalf or by any officer, employee or agent of the Trust.

NINETEENTH: In this Declaration of Trust, unless the context otherwise requires, words used in the singular or in the plural include both the plural and singular and words denoting any gender include all genders. The title and headings of different parts are inserted for convenience and shall not affect the meaning, construction or effect of this Declaration of Trust. In defining or interpreting the powers and duties of the Trust and its Trustees and officers, reference may be made by the Trustees or officers, to the extent appropriate and not inconsistent with the Code or Title 8, to Titles 1 through 3 of the Corporations and Associations Article of the Annotated Code of Maryland. In furtherance and not in limitation of the foregoing, in accordance with the provisions of Title 3, Subtitles 6 and 7, of the Corporations and Associations Article of the Annotated Code of Maryland, the Trust shall be included within the definition of "corporation" for purposes of such provisions.

TWENTIETH:

Section 1.Definitions. For purposes of this Article TWENTIETH, the following terms shall have the following meanings:

"Affiliate" (and derivatives of such term) shall have the meaning ascribed to such term under Rule 12b-2 promulgated by under the Exchange Act.

"Affiliated Company" shall mean any partnership, corporation, limited liability company, trust or other entity directly or indirectly Affiliated or under common Ownership or Control with the Trust including, without limitation, any subsidiary, holding company or intermediary company (as those or similar terms are defined under the Gaming Laws of any applicable Gaming Jurisdictions), in each case that is registered or licensed under applicable Gaming Laws.

"Control" (and derivatives of such term) (i) with respect to any Person, shall have the meaning ascribed to such term under Rule 12b-2 under the Exchange Act, (ii) with respect to any Interest, shall mean the possession, directly or indirectly, of the power to direct, whether by agreement, contract, agency or otherwise, the voting rights or disposition of such Interest, and (iii) as applicable, the meaning ascribed to the term "control" (and derivatives of such term) under the Gaming Laws of any applicable Gaming Jurisdictions.

"Discount" shall mean such percentage (up to 100%) as the Board may determine in its sole and absolute discretion, taking into account such equitable and other factors as it deems appropriate. With respect to any amount, the Discount shall mean the Discount percentage of such amount.

"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time.

"Gaming" or "Gaming Activities" shall mean the conduct of gaming and gambling activities, race books and sports pools, or the use of gaming devices, equipment and supplies in the operation of a casino, pari-mutuel facility, card club, website, mobile application or other enterprise, including, without limitation,

slot machines, gaming tables, cards, dice, gaming chips, player tracking systems, cashless wagering systems, mobile gaming systems, inter-casino linked systems and related and associated equipment, supplies and systems.

"Gaming Authorities" shall mean all international, national, foreign, domestic, federal, state, provincial, regional, local, tribal, municipal and other regulatory and licensing bodies, instrumentalities, departments, commissions, authorities, boards, officials, tribunals and agencies with authority over or responsibility for the regulation of Gaming within any Gaming Jurisdiction.

"Gaming Jurisdictions" shall mean all jurisdictions, domestic and foreign, and their political subdivisions, in which Gaming Activities are or may be lawfully conducted, including, without limitation, all Gaming Jurisdictions in which the Trust or any of the Affiliated Companies currently conducts or may in the future conduct Gaming Activities.

"Gaming Laws" shall mean all laws, statutes and ordinances pursuant to which any Gaming Authority possesses regulatory, permit and licensing authority over the conduct of Gaming Activities, or the Ownership or Control of an Interest in an entity which conducts Gaming Activities, in any Gaming Jurisdiction, all orders, decrees, rules and regulations promulgated thereunder, all written and unwritten policies of the Gaming Authorities and all written and unwritten interpretations by the Gaming Authorities of such laws, statutes, ordinances, orders, decrees, rules, regulations and policies.

"Gaming Licenses" shall mean all licenses, permits, certifications, notifications, consents, approvals, orders, authorizations, registrations, findings of suitability, franchises, exemptions, waivers, concessions and entitlements issued by any Gaming Authority necessary for or relating to the conduct of Gaming Activities by any Person or the Ownership or Control by any Person of an Interest in an entity that conducts or may in the future conduct Gaming Activities.

"Interest" shall mean the stock or other securities of an entity or any other interest or financial or other stake therein, including, without limitation, the Securities.

"Own" or "Ownership" (and derivatives of such terms) shall mean (i) ownership of record, (ii) "beneficial ownership" as defined in Rule 13d-3 or Rule 16a-1(a)(2) promulgated under the Exchange Act, and (iii) as applicable, the meaning ascribed to the terms "own" or "ownership" (and derivatives of such terms) under the Gaming Laws of any applicable Gaming Jurisdictions.

"Person" shall have the meaning ascribed to that term in Section 1 of Article NINTH.

"Redemption Date" shall mean the date set forth in the Redemption Notice by which the Securities Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person are to be redeemed by the Trust or any of its Affiliated Companies, which redemption date shall be determined in the sole and absolute discretion of the Board but which shall in no event be fewer than 45 calendar days following the date of the Redemption Notice, unless (i) otherwise required by a Gaming Authority or pursuant to any applicable Gaming Laws, (ii) prior to the expiration of such 45-day period, the Unsuitable Person shall have sold (or otherwise fully transferred or otherwise disposed of its Ownership of) its Securities to a Person that is not an Unsuitable Person (in which case, such Redemption Notice will only apply to those Securities that have not been sold or otherwise disposed of) by the selling Unsuitable Person (and, commencing as of the date of such sale, the purchaser or recipient of such Securities shall have all of the rights of a Person that is not an Unsuitable Person), or (iii) the cash or other Redemption Price necessary to effect the redemption shall have been deposited in trust for the benefit of the Unsuitable Person or its Affiliate and shall be subject to immediate withdrawal by such Unsuitable Person or its Affiliate upon (x) surrender of the certificate(s)

evidencing the Securities to be redeemed accompanied by a duly executed stock power or assignment or (y) if the Securities are uncertificated, upon the delivery of a duly executed assignment or other instrument of transfer.

"Redemption Notice" shall mean that notice of redemption delivered by the Trust pursuant to this Article to an Unsuitable Person or an Affiliate of an Unsuitable Person if a Gaming Authority so requires the Trust, or if the Board deems it necessary or advisable, to redeem such Unsuitable Person's or his, her or its Affiliate's Securities. Each Redemption Notice shall set forth (i) the Redemption Date, (ii) the number and type of Securities to be redeemed, (iii) the Redemption Price and the manner of payment therefor, (iv) the place where any certificates for such Securities shall be surrendered for payment, and (v) any other requirements of surrender of the certificates, including how such certificates are to be endorsed, if at all.

"Redemption Price" shall mean the price to be paid by the Trust for the Securities to be redeemed pursuant to this Article, which shall be that price (if any) required to be paid by the Gaming Authority making the finding of unsuitability, or if such Gaming Authority does not require a certain price to be paid (including if the finding of unsuitability is made by the Board alone), the least of (i) the Fair Market Value (as defined in Section 1 of Article NINTH) on the date of the Redemption Notice, minus the Discount, (ii) the Fair Market Value on the Redemption Date, minus the Discount, or (iii) the actual amount paid by the Owner or Affiliate of such Owner in the acquisition of Ownership of such Securities, minus the Discount. The Trust may pay the Redemption Price in any combination of cash and/or promissory note as required by the applicable Gaming Authority and, if not so required (including if the finding of unsuitability is made by the Board alone), as determined by the Board, provided, that in the event the Trust elects to pay all or any portion of the Redemption Price with a promissory note, such promissory note shall contain such terms and conditions as the Board determines necessary or advisable, including without limitation, subordination provisions, to comply with any law or regulation then applicable to the Trust or any Affiliate of the Trust or to prevent a default under, breach of, event of default under or acceleration of any loan, promissory note, mortgage, indenture, line of credit, or other debt or financing agreement of the Trust or any Affiliate of the Trust or otherwise. Subject to the foregoing, the principal amount of the promissory note together with any unpaid interest shall be due and payable no later than the tenth anniversary of delivery of the note and interest on the unpaid principal thereof shall be payable annually in arrears at the rate of two 2% per annum.

"Securities" shall mean the Shares and the capital stock, member's interests or membership interests, partnership interests or other equity securities of any Affiliated Company.

"Unsuitable Person" shall mean a Person who (i) fails or refuses to file an application, or has withdrawn or requested the withdrawal of a pending application, to be found suitable by any Gaming Authority or for any Gaming License, (ii) is denied or disqualified from eligibility for any Gaming License by any Gaming Authority, (iii) is determined by a Gaming Authority to be unsuitable or disqualified to Own or Control any Securities, (iv) is determined by a Gaming Authority to be unsuitable to be Affiliated, associated or involved with a Person engaged in Gaming Activities in any Gaming Jurisdiction, (v) causes any Gaming License of the Trust or any Affiliated Company to be lost, rejected, rescinded, suspended, revoked or not renewed by any Gaming Authority, or causes the Trust or any Affiliated Company to be threatened by any Gaming Authority with the loss, rejection, rescission, suspension, revocation or non-renewal of any Gaming License (in each of (ii) through (v) above, regardless of whether such denial, disqualification or determination by a Gaming Authority is final and/or non-appealable), or (vi) is deemed likely, in the sole and absolute discretion of the Board, to (A) preclude or materially delay, impede, impair, threaten or jeopardize any Gaming License held by the Trust or any Affiliated Company or the Trust's or any Affiliated Company's application for, right to the use of, entitlement to, or ability to obtain or retain, any Gaming License, (B) cause or otherwise result in, the disapproval, cancellation, termination, material adverse modification or non-renewal of any material contract to which the Trust or any Affiliated Company is a party, or (C) cause or otherwise result in the

imposition of any materially burdensome or unacceptable terms or conditions on any Gaming License of the Trust or any Affiliated Company.

Section 2.Compliance with Gaming Laws. All Securities shall be held subject to the restrictions and requirements of all applicable Gaming Laws. All Persons Owning or Controlling Securities shall comply with all applicable Gaming Laws, including any provisions of such Gaming Laws that require such Person to file applications for Gaming Licenses with, and provide information to, the applicable Gaming Authorities. Any Transfer of Securities may be subject to the prior approval of the Gaming Authorities and/or the Trust or the applicable Affiliated Company, and any purported Transfer thereof in violation of such requirements shall be void ab initio.

Section 3.Ownership Restrictions. Any Person who Owns or Controls five percent (5%) or more of any class or series of the Trust's Securities shall promptly notify the Trust, stating the name and address of such owner, the number of Shares Owned and a description of the manner in which such Shares are held. In addition, any Person who Owns or Controls any of the Trust's Securities shall, to the extent reasonably requested by the Trust in order to comply with applicable Gaming Law or for the Trust to determine whether the Person is an Unsuitable Person:

(a) provide to the Gaming Authorities in each Gaming Jurisdiction in which the Trust or any Affiliated Company either conducts Gaming or has a pending application for a Gaming License all information regarding such Person as may be requested or required by such Gaming Authorities; and

(b) respond to written or oral questions or inquiries from any such Gaming Authorities or the Trust. Any Person who Owns or Controls any of the Trust's Securities, by virtue of such Ownership or Control, consents to the performance of any personal background investigation that may be required by any Gaming Authorities or that may otherwise be deemed advisable by the Trust.

Section 4.Finding of Unsuitability.

(a) The Securities Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person shall be redeemable by the Trust or the applicable Affiliated Company, out of funds legally available therefor, as directed by a Gaming Authority and, if not so directed, as and to the extent deemed necessary or advisable by the Board, in which event the Trust shall deliver a Redemption Notice to the Unsuitable Person or its Affiliate and shall redeem or purchase or cause one or more Affiliated Companies to purchase the Securities on the Redemption Date and for the Redemption Price set forth in the Redemption Notice. From and after the Redemption Date, such Securities shall no longer be deemed to be outstanding, such Unsuitable Person or Affiliate of such Unsuitable Person shall cease to be a shareholder, member, partner or owner, as applicable, of the Trust and/or Affiliated Company with respect to such Securities, and all rights of such Unsuitable Person or Affiliate of such Unsuitable Person in such Securities, other than the right to receive the Redemption Price, shall cease. In accordance with the requirements of the Redemption Notice, such Unsuitable Person or its Affiliate shall surrender the certificate(s), if any, representing the Securities to be so redeemed and comply with any other requirements for the surrender and redemption of such Securities.

(b) Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or disqualification of a holder of Securities, or the Board otherwise determines that a Person is an Unsuitable Person, and until the Securities Owned or Controlled by such Person are Owned or Controlled by a Person who is not an Unsuitable Person, it shall be unlawful for such Unsuitable Person or any of its Affiliates to and such Unsuitable Person and its Affiliates shall not: (i) receive any dividend, payment, distribution or interest with regard to the Securities, (ii) exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such Securities, and such Securities shall not for

any purposes be included in the Securities of the Trust or the applicable Affiliated Company entitled to vote, (iii) receive any remuneration that may be due to such Person, accruing after the date of such notice of determination of unsuitability or disqualification by a Gaming Authority, in any form from the Trust or any Affiliated Company for services rendered or otherwise, or (iv) be or continue as a manager, officer, partner, trustee or director of the Trust or any Affiliated Company.

Section 5.Indemnification. Any Unsuitable Person and any Affiliate of an Unsuitable Person shall indemnify and hold harmless the Trust and its Affiliated Companies for any and all losses, costs, and expenses, including attorneys' costs, fees and expenses, incurred by the Trust and its Affiliated Companies as a result of, or arising out of, such Unsuitable Person's Ownership or Control of Securities, failure or refusal to comply with the provisions of this Article, or failure to divest himself, herself or itself of any Securities when and in the specific manner required by the Gaming Authorities or this Article.

Section 6.Injunctive Relief. The Trust shall be entitled to injunctive or other equitable relief in any court of competent jurisdiction to enforce the provisions of this Article and each Person who Owns or Controls Securities shall be deemed to have consented to injunctive or other equitable relief and acknowledged, by virtue of such Ownership or Control, that the failure to comply with this Article will expose the Trust and the Affiliated Companies to irreparable injury for which there is no adequate remedy at law and that the Trust and the Affiliated Companies shall be entitled to injunctive or other equitable relief to enforce the provisions of this Article.

Section 7.Non-Exclusivity of Rights. The right of the Trust or any Affiliated Company to redeem Securities pursuant to this Article shall not be exclusive of any other rights the Trust or any Affiliated Company may have or hereafter acquire under any agreement, provision of the bylaws of the Trust or such Affiliated Company or otherwise. To the extent permitted under applicable Gaming Laws, the Trust shall have the right, exercisable in the sole discretion of the Board, either:

(a) to cause all Securities Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person to be deemed to be transferred to an Excess Share Trustee in accordance with Section 14 of Article NINTH, by providing notice thereof to the Unsuitable Person or its Affiliate; or

(b) to propose that the parties, immediately upon the delivery of the Redemption Notice, enter into an agreement or other arrangement, including, without limitation, a divestiture trust or divestiture plan, which will reduce or terminate an Unsuitable Person's Ownership or Control of all or a portion of its Securities.

Section 8.Further Actions. Nothing contained in this Article shall limit the authority of the Board to take such other action, to the extent permitted by law, as it deems necessary or advisable to protect the Trust or the Affiliated Companies from the denial or loss or threatened denial or loss of any Gaming License of the Trust or any of its Affiliated Companies. Without limiting the generality of the foregoing, the Board may conform any provisions of this Article to the extent necessary to make such provisions consistent with Gaming Laws, without the need for shareholder approval, except to the extent that shareholder approval is specifically required by Title 8. In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind bylaws, regulations, and procedures of the Trust not inconsistent with the express provisions of this Article for the purpose of determining whether any Person is an Unsuitable Person and for the orderly application, administration and implementation of the provisions of this Article. Such procedures and regulations shall be kept on file with the Secretary of the Trust, the secretary of each of the Affiliated Companies and with the transfer agent, if any, of the Trust and/or any Affiliated Companies, and shall be made available for inspection and, upon reasonable request, mailed to any record holder of Securities.

Section 9.Authority of the Board. The Board shall have exclusive authority and power to administer this Article and to exercise all rights and powers specifically granted to the Board or the Trust, or as may be necessary or advisable in the administration of this Article. All such actions which are done or made by the Board shall be final, conclusive and binding on the Trust and all other Persons; provided, that the Board may delegate all or any portion of its duties and powers under this Article to a committee of the Board as it deems necessary or advisable.

Section 10.Severability. If any provision of this Article or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article.

Section 11.Termination and Waivers. Except as may be required by any applicable Gaming Law or Gaming Authority, the Board may waive any of the rights of the Trust or any restrictions contained in this Article in any instance in which and to the extent the Board determines that a waiver would be in the best interests of the Trust. Except as required by a Gaming Authority, nothing in this Article shall be deemed or construed to require the Trust to repurchase any Securities Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person.

Section 12.Legend. Each certificate for Shares shall bear substantially the following legend:

"The Securities represented by this certificate are subject to the obligations and restrictions imposed by applicable Gaming Laws. These obligations and restrictions, as set forth in the Trust's Declaration of Trust, include, but are not limited to: (i) the obligation to comply with all applicable Gaming Laws, including requirements to file applications for Gaming Licenses, to provide information to Gaming Authorities (as defined in the Trust's Declaration of Trust) and to consent to the performance of any background investigation required by Gaming Authorities, (ii) the obligation to notify the Trust of the ownership or control of five percent (5%) or more of any class or series of the Trust's Securities, (iii) upon notice of a determination of unsuitability or disqualification of the holder of the Securities by Gaming Authorities or upon the determination by the Board that the holder of the Securities is an Unsuitable Person, the redemption of the Securities, and (iv) upon notice of a determination of unsuitability or disqualification of the holder of the Securities by Gaming Authorities or upon the determination by the Board that the holder of the Securities is an Unsuitable Person, the immediate prohibition against (A) the receipt of any dividend, payment, distribution or interest with regard to the Securities, (B) the exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such Securities, and such Securities shall not for any purposes be included in the Securities of the Trust or the applicable Affiliated Company entitled to vote, (C) the receipt of any remuneration that may be due to such person, accruing after the date of such notice of determination of unsuitability or disqualification by a Gaming Authority, in any form from the Trust or any Affiliated Company for services rendered or otherwise, or (D) the existence or continuation of such person as a manager, officer, partner, trustee or director of the Trust or any Affiliated Company. All capitalized terms in this legend have the meanings defined in the Trust's Declaration of Trust, a copy of which, including the obligations and restrictions related to ownership, will be sent

without charge to each shareholder who so requests, within five business days after receipt of a written request therefor."

* * *

Exhibit 10.1

AMENDMENT NO. 1 TO SECOND AMENDED, RESTATED

AND CONSOLIDATED CREDIT AGREEMENT

AMENDMENT NO. 1 TO SECOND AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT (this “Amendment”), dated as of June 29, 2020, relating to the Second Amended, Restated and Consolidated Credit Agreement, dated as of September 27, 2017 (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), among EPR PROPERTIES, a Maryland real estate investment trust (the “Borrower”), KEYBANK NATIONAL ASSOCIATION, as administrative agent (the “Agent”), JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS, CITIBANK, N.A., BANK OF AMERICA, N.A., and BARCLAYS BANK PLC, as co-syndication agents, each of KEYBANC CAPITAL MARKETS, LLC, JPMORGAN CHASE BANK, N.A., RBC CAPITAL MARKETS, BOFA SECURITIES, INC., BARCLAYS BANK PLC, and CITIGROUP GLOBAL MARKETS INC., as joint lead arrangers and joint book runners, CITIZENS BANK, NATIONAL ASSOCIATION, SUNTRUST BANK, and BANK OF THE WEST, as Documentation Agents, and the LENDERS from time to time party thereto (collectively, the “Lenders”).

RECITALS

WHEREAS, in connection with the COVID-19 outbreak, the Borrower has requested, and the Agent and the Lenders party hereto have agreed, to modify certain provisions of the Existing Credit Agreement; and

WHEREAS, pursuant to Section 12.6(b) of the Existing Credit Agreement, the Borrower, the Agent and the Lenders agree to amend the Existing Credit Agreement on the terms set forth herein.

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

SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings given to them in the Existing Credit Agreement. The rules of interpretation set forth in Section 1.2(c) of the Existing Credit Agreement are hereby incorporated by reference herein, mutatis mutandis. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Existing Credit Agreement shall, after this Amendment becomes effective, refer to the Existing Credit Agreement as amended hereby. For clarity, unless otherwise expressly limited to the Covenant Relief Period (as defined below), each amendment set forth herein shall apply for the entire term of the Facilities.

SECTION 2.Amendments to the Credit Agreement. The Existing Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as defined below), hereby amended as follows (the Existing Credit Agreement, as so amended, the “First Amended Credit Agreement”):

(a)Section 1.1 of the Existing Credit Agreement is hereby amended by adding the following definitions, in each case in appropriate alphabetical order, as follows:

“Alternate Rate Loan” means a Loan bearing interest at a rate based on the Alternate Rate.

“Alternate Trigger Event" shall mean any of the following occurring at any time during the Covenant Relief Period: (a) the aggregate amount of unrestricted cash and Cash Equivalents held by the Borrower and its Subsidiaries shall be less than the Unrestricted Cash Threshold Amount, (b) the Revolving Credit Exposure is greater than $750,000,000, or (c) two of the ratings for the Index Debt shall be less than BBB- by Fitch or S&P or less than Baa3 by Moody’s.

“AMC Pledged Property” means any Pledged Property leased or operated by AMC Entertainment Holdings, Inc. or any of its Subsidiaries.

“Amendment No. 1 Effective Date” means June 29, 2020.

“Approved Bonds Amendment” means the Second Amendment to Note Purchase Agreement, dated on or about the Amendment No. 1 Effective Date, among the Borrower and the holders of the Private Placement Bonds party thereto.

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. dollar-denominated syndicated credit facilities at such time and (b) the Benchmark Replacement Adjustment; provided that, (x) if at any time during the Covenant Relief Period, the Benchmark Replacement as so determined shall be less than fifty basis points (0.50%) per annum, such rate shall be deemed to be fifty basis points (0.50%) per annum for purposes of this Agreement, and (y) if at any time following the expiration of the Covenant Relief Period, the Benchmark Replacement as so determined shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

“Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Rate,” the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to LIBOR:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR; or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBOR:

(1) a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR;

(2) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR or a Relevant Governmental Body announcing that LIBOR is no longer representative.

“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Agent or the Required Lenders, as applicable, by notice to the Borrower, the Agent (in the case of such notice by the Required Lenders) and the Lenders.

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes hereunder in accordance with the Section titled “Effect of Benchmark Transition Event” and (y) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to the Section titled “Effect of Benchmark Transition Event.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Covenant Relief Period” means the period of time beginning on the Amendment No. 1 Effective Date and ending, provided no Default or Event of Default shall then be in existence, on the earlier of (i) April 1, 2021 and (ii) the date on which the Borrower delivers a written notice to the Agent electing to terminate the Covenant Relief Period, together with a Compliance Certificate evidencing, to the Agent’s reasonable satisfaction, that the Borrower would have been in compliance with the financial covenants contained in Section 9.1, at the end of the most recently ended fiscal quarter, even if the Covenant Relief Period had not been in effect for such fiscal quarter.

“Covered Party” has the meaning given that term in Section 12.21.

“Early Opt-in Election” means the occurrence of:

(1) (i) a determination by the Agent or (ii) a notification by the Required Lenders to the Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this Section titled “Effect of Benchmark Transition Event,” are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

(2) (i) the election by the Agent or (ii) the election by the Required Lenders, to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Agent.

“Excess Unrestricted Cash” means, as of any date of calculation, the difference between (x) the aggregate amount of unrestricted cash and Cash Equivalents held by Borrower and its Subsidiaries in excess of $25,000,000, less (y) the aggregate principal amount of all Short-Term Unsecured Indebtedness; provided, however, that in no event shall Excess Unrestricted Cash be less than zero.

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

“Material Credit Facility” has the meaning given to such term in Section 7.20.

“Most Favored Lender Notice” has the meaning given to such term in Section 7.20.

“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Borrower or any Subsidiary in respect (i) of any sale or other disposition (including, without limitation, by way of a merger, reorganization, consolidation or other business combination any transaction or series of transactions which may have a similar effect) of any asset, in excess of $100,000,000.00 in the aggregate for all such transactions, (ii) any Indebtedness, or (iii) Equity Issuances (other than to the extent derived from Borrower’s dividend reinvestment programs), in each instance net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees, and sales commissions), (b) taxes paid or payable as a result thereof and (c) in the case of any disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien on the related asset; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by the Borrower or any Subsidiary in or related to any disposition, Equity Issuance or Indebtedness.

“Pledge Trigger Event" shall mean any of the following occurring at any time during the Covenant Relief Period: (a) the aggregate amount of unrestricted cash and Cash Equivalents held by the Borrower and its Subsidiaries shall be less than the Unrestricted Cash Threshold Amount, (b) the Revolving Credit Exposure is greater than $750,000,000, or (c) the ratings for the Index Debt shall be both (1) less than BBB- by each of Fitch and S&P and (2) less than Baa3 by Moody’s.

“Pledged Properties” has the meaning given that term in Section 7.16(a).

“Private Placement Bonds” means the (a) 4.35% private placement notes due August 22, 2024 with a principal balance of $148,000,000, and (b) 4.56% private placement notes due August 22, 2026 with a principal balance of $192,000,000.

“QFC Credit Support” has the meaning given that term in Section 12.21.

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto, including without limitation the Alternative Reference Rates Committee.

“Required Value” means, from time to time, an amount equal to 150% of the aggregate of (i) Outstanding Amounts due under this Agreement and (ii) the outstanding principal balance of the Private Placement Bonds.

“Short-Term Unsecured Indebtedness” means Unsecured Indebtedness which matures on or prior to the two-year anniversary of the applicable date of calculation.

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

“Supported QFC” has the meaning given that term in Section 12.21.

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

“Unrestricted Cash Threshold Amount” means $550,000,000, provided if the Revolving Credit Exposure hereunder at any time of calculation is less than $750,000,000, the Unrestricted Cash Threshold Amount shall be automatically reduced on a dollar-for-dollar basis by the difference between (x) $750,000,000 and (y) the Revolving Credit Exposure.

“U.S. Special Resolution Regimes” has the meaning given that term in Section 12.21.

(b)Section 1.1 of the Existing Credit Agreement is hereby amended by deleting the defined term “Leverage Ratio” in its entirety.

(c)Section 1.1 of the Existing Credit Agreement is hereby amended by replacing the defined terms listed below with the definitions set forth herein:

“Applicable Margin” means:

(a) For any day during the Covenant Relief Period and until such time as an Applicable Margin is effective pursuant to clause (c) below, for the Revolving Credit Facility, with respect to any Base Rate Loan or LIBOR Loan, or with respect to the fee payable with respect to any Letter of Credit payable hereunder, or with respect to the facility fee payable pursuant to Section 3.6 hereof, as the case may be, the following applicable rates per annum:

(i) initially during the Covenant Relief Period, the rates set forth in Category 1 below beneath the applicable caption,

(ii) if, thereafter during the Covenant Relief Period, Moody's lowers the Company's rating for Index Debt to Baa3, the rates set forth in Category 2 below beneath the applicable caption,

(iii) if, at any time during the Covenant Relief Period, (i) each of S&P and Fitch lowers the Company's rating for Index Debt to BB+ or lower, and Moody's lowers the Company's rating for Index Debt to Ba1 or lower, or (ii) each of Rating Agencies shall not have in effect a rating for the Index Debt, the rates set forth in Category 3 below beneath the applicable caption.



Category	S&P/Fitch Ratings (Covenant Relief Period):	Moody’s Ratings (Covenant Relief Period):	Base Rate Margin (Covenant Relief Period):	LIBOR Margin (Covenant Relief Period):	Facility Fee (Covenant Relief Period):
1	>=BBB	>=Baa2	37.5 bps	137.5 bps	37.5 bps
2	N/A	=Baa3	62.5 bps	162.5 bps	37.5 bps
3	<=BB+	<=Ba1	97.5 bps	197.5 bps	37.5 bps

(b) For any day during the Covenant Relief Period and until such time as an Applicable Margin is effective pursuant to clause (d) below, for the Term Loan, with respect to any Base Rate Loan or LIBOR Loan, as the case may be, the following applicable rates per annum:

(i) initially during the Covenant Relief Period, the rates set forth in Category 1 below beneath the applicable caption,

(ii) if, thereafter during the Covenant Relief Period, Moody's lowers the Company's rating for Index Debt to Baa3, the rates set forth in Category 2 below beneath the applicable caption,



Category	S&P/Fitch Ratings (Covenant Relief Period):	Moody’s Ratings (Covenant Relief Period):	Base Rate Margin (Covenant Relief Period):	LIBOR Margin (Covenant Relief Period):
1	>=BBB	>=Baa2	75.0 bps	175.0 bps
2	N/A	=Baa3	100.0 bps	200.0 bps
3	<=BB+	<=Ba1	135.0 bps	235.0 bps

(c) Following the expiration of the Covenant Relief Period, and effective as of the first Business Day immediately following the date a Compliance Certificate is required to be delivered in order to terminate the Covenant Relief Period, and thereafter pursuant to Section 8.1(c), for the Revolving Credit Facility, for any day, with respect to any Base Rate Loan or LIBOR Loan, or with respect to the fee payable with respect to any Letter of Credit payable hereunder, or with respect to the facility fee payable pursuant to Section 3.6 hereof, as the case may be, the applicable rate per annum set forth below under the caption “Base Rate Margin,” “LIBOR Margin” or “Facility Fee,” as the case may be, based upon the ratings by each Rating Agency on such date for the Index Debt:



Category	S&P/Fitch Ratings:	Moody’s Ratings:	Base Rate Margin	LIBOR Margin	Facility Fee
1	>=A-	>=A3	0.0 bps	82.5 bps	12.5 bps
2	=BBB+	=Baa1	0.0 bps	87.5 bps	15.0 bps
3	=BBB	=Baa2	10.0 bps	100.0 bps	20.0 bps
4	=BBB-	=Baa3	20.0 bps	120.0 bps	25.0 bps
5	<=BB+	<=Ba1	55.0 bps	155.0 bps	30.0 bps

(d) Following the expiration of the Covenant Relief Period, and effective as of the first Business Day immediately following the date a Compliance Certificate is required to be delivered in order to terminate the Covenant Relief Period, and thereafter pursuant to Section 8.1(c), for the Term Loan, for any day, with respect to any Base Rate Loan or LIBOR Loan, as the case may be, the applicable rate per annum set forth below under the caption “Base Rate Margin” or “LIBOR Margin”, as the case may be, based upon the ratings by each Rating Agency on such date for the Index Debt:



Category	S&P/Fitch Ratings:	Moody’s Ratings:	Base Rate Margin	LIBOR Margin
1	>=A-	>=A3	0.0 bps	90.0 bps
2	=BBB+	=Baa1	0.0 bps	95.0 bps
3	=BBB	=Baa2	10.0 bps	110.0 bps
4	=BBB-	=Baa3	35.0 bps	135.0 bps
5	<=BB+	<=Ba1	75.0 bps	175.0 bps

For purposes of clauses (c) and (d) above, (i) if a Rating Agency shall not have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then such Rating Agency shall be deemed to have established a rating in Category 5; (ii) if the ratings established or deemed to have been established by the three Rating Agencies for the Index Debt fall within the same category, the Applicable Margin shall be that category, (iii) if the ratings established or deemed to have been established by the three Rating Agencies for the Index Debt do not fall within the same category, the Applicable Margin shall be determined based on (A) the highest of such ratings, if the next highest rating is only one level below that of the highest rating, or (B) the rating that is one level higher than the second highest rating, if the second highest rating is more than one level below that of the highest rating; and (iv) if the ratings established or deemed to have been established by a Rating Agency shall be changed (other than as a result of a change in the rating system of such Rating Agency), such change shall be effective as of the date on which it is first announced by such Rating Agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Agent and the Lenders pursuant to Section 8.1.(g) hereof or otherwise. Each change in the Applicable Margin shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of a Rating Agency shall change, or if any Rating Agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Required Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such Rating Agency and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.

“Bonds” means, (a) the $275,000,000 original face amount 5.25% Senior Notes due 2023, (b) the $148,000,000 original face amount 4.35% notes due 2024, (c) the $300,000,000 original face amount 4.50% Senior Notes due 2025, (d) the $192,000,000 original face amount 4.56% notes due 2026, (e) the $450,000,000 original face amount 4.75% Senior Notes due 2026, (f) the $450,000,000 original face amount 4.50% Senior Notes due 2027, (g) the $400,000,000 original face amount 4.95% Senior Notes due 2028, and (h) the $500,000,000 original face amount 3.75% Senior Notes due 2029; together with any refinancings of such notes that may be incurred in accordance with the terms of this Agreement.

(d)The definition of “Canadian CDOR Rate” in Section 1.1 of the Existing Credit Agreement is hereby modified by replacing the last sentence of such definition in its entirety with the following:

“Notwithstanding the foregoing (x) if at any time during the Covenant Relief Period, the Canadian CDOR Rate shall be less than fifty basis points (0.50%) per annum, such rate shall be deemed to be fifty basis points (0.50%) per annum for purposes of this Agreement, and (y) if at any time following the expiration of the Covenant Relief Period, the Canadian CDOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.”

(e)The definition of “EURIBOR Rate” in Section 1.1 of the Existing Credit Agreement is hereby modified by replacing the last sentence of such definition in its entirety with the following:

“Notwithstanding the foregoing (x) if at any time during the Covenant Relief Period, the EURIBOR Rate shall be less than fifty basis points (0.50%) per annum, such rate shall be deemed to be fifty basis points (0.50%) per annum for purposes of this Agreement, and (y) if at any time following the expiration of the Covenant

Relief Period, the EURIBOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.”

(f)The definition of “Federal Funds Rate” in Section 1.1 of the Existing Credit Agreement is hereby modified by replacing clause (c) last sentence of such definition in its entirety with the following:

“(c) notwithstanding the foregoing (x) if at any time during the Covenant Relief Period, the Federal Funds Rate shall be less than fifty basis points (0.50%) per annum, such rate shall be deemed to be fifty basis points (0.50%) per annum for purposes of this Agreement, and (y) if at any time following the expiration of the Covenant Relief Period, the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.”

(g)The definition of “LIBOR” in Section 1.1 of the Existing Credit Agreement is hereby modified by replacing the last sentence of such definition in its entirety with the following:

“Notwithstanding the foregoing (x) if at any time during the Covenant Relief Period, LIBOR shall be less than fifty basis points (0.50%) per annum, such rate shall be deemed to be fifty basis points (0.50%) per annum for purposes of this Agreement, and (y) if at any time following the expiration of the Covenant Relief Period, LIBOR shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.”

(h)The definition of “Permitted Liens” in Section 1.1 of the Existing Credit Agreement is hereby modified by deleting the same in its entirety and by replacing the same with the following:

“Permitted Liens” means, as to any Person: (a) Liens securing taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws if the imposition of such Lien could reasonably be expected to have a Material Adverse Effect) or the claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which are not at the time required to be paid or discharged or are otherwise permitted under Section 7.6.; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance or similar Applicable Laws or in connection with performance of bids and trade contracts and leases where such Person is the tenant; (c) 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 which do not materially detract from the value of such property for its intended business use or impair the intended business use thereof in the business of such Person; (d) the rights of tenants under leases or subleases not interfering with the ordinary conduct of business of such Person; (e) Liens in favor of the Agent for the benefit of the Lenders; (f) intercompany Liens among the Borrower and its Subsidiaries securing intercompany obligations among such Persons that have been subordinated to the Obligations on terms satisfactory to the Agent; (g) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 10.1(k); (h) customary Liens, including customary rights of setoff and Liens arising by operation of law, against deposits in favor of banks and other depository institutions arising in the ordinary course of business; (i) Liens of a collecting bank under Section 4-210 of the Uniform Commercial Code, or similar law, on items in the course of collection; (j) Liens in favor of the holders of the Private Placement Bonds on Equity Interests of Unencumbered Property Owner Subsidiaries that own Pledged Properties, provided that any such Liens arise under provisions comparable to Section 7.16(a) and any such Liens are pari passu with any Liens granted to the Lenders pursuant to Section 7.16(a) and are subject to the intercreditor agreement referred to in Section 7.16(a); and (k) Liens on assets other than (I) Unencumbered Property, and (II) any Equity Interests of an Unencumbered Property Owner Subsidiary or of any Unencumbered Property Equity Owner, provided that such Liens secure Indebtedness or other obligations that may be incurred or maintained without violating Section 9.1 or Section 9.3 or any other provision of this Agreement, including, without limitation, Liens in existence as of the Agreement Date and set forth in Schedule 6.1(f) and any renewals or refinancings thereof.

(i)The definition of “Unencumbered Property Net Operating Income or “Unencumbered Property NOI” is hereby amended by deleting the parenthetical beginning on line 4 thereof and replacing same with the following”

“(provided however that any amounts accrued shall only include those amounts not more than 45 days delinquent in arrears, provided further that any amounts payment of which are deferred pursuant to a deferral agreement entered into with the subject Tenant shall not be considered in arrears)”

(j)The definition of “Unsecured Indebtedness” in Section 1.1 of the Existing Credit Agreement is hereby modified deleting same in its entirety and replacing same with the following:

““Unsecured Indebtedness” means Indebtedness of the Borrower, on a Consolidated basis, which is not Secured Indebtedness; provided, however, that any Liens granted under Section 7.16 of this Agreement, or Liens granted in connection with the Private Placement Bonds pursuant to contractual provisions similar to such Section 7.16 or consistent with Section 7.20, shall not result in the Indebtedness under this Agreement, or the Private Placement Bonds being deemed Secured Indebtedness hereunder, with the Indebtedness under this Agreement and the Private Placement Bonds under such circumstances continuing to be deemed Unsecured Indebtedness for the purposes of this Agreement.”

(k)A new Section 1.5 is hereby inserted at the end of Article I as follows:

1.5 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

(l)Section 2.6 of the Existing Credit Agreement is hereby modified by inserting a new Section 2.6(b)(v) at the end thereof as follows:

“(v) Notwithstanding anything to the contrary herein, during the Covenant Relief Period the Borrower shall promptly upon receipt (but no later than two (2) Business Days after such receipt) apply one hundred percent (100%) of the Borrower’s and its Subsidiaries’ Net Cash Proceeds ratably to (1) the Facility (as a prepayment of the Revolving Credit Loans and/or the Term Loans, as the Borrower may elect), on the one hand, and (2) the Private Placement Bonds, on the other hand; provided that, (a) amounts applied or to be applied to the Private Placement Bonds shall be subject to the terms and conditions set forth in the Approved Bonds Amendment (including any provisions therein that obligate the Borrower to offer to prepay the Private Placement Bonds, either with or without a make-whole or similar prepayment premium, and any provisions therein that give the holders of the Private Placement Bonds the right not to accept such offer to prepay), (b) any amounts not applied to prepay the Private Placement Bonds (including because a holder thereof refuses the Borrower's offer to prepay) shall instead be applied to prepay the Facility as a prepayment of the Revolving Credit Loans and/or the Term Loans, as the Borrower may elect, and (c) if the amount of Net Cash Proceeds from any particular disposition, incurrence of Indebtedness or Equity Issuance is less than $10,000,000.00 (after giving effect to the initial $100,000,000.00 exclusion for asset dispositions described in clause (i) of the definition of Net Cash Proceeds in Section 1.1 hereof), the Borrower shall not be obligated to apply such Net Cash Proceeds as provided in this clause (v) until such time as the aggregate amount of such Net Cash Proceeds equals or exceeds $10,000,000.00, with the entirety of such Net Cash Proceeds then being applied as set forth above (and with such $10,000,000.00 basket replenishing itself as and when any Net Cash Proceeds are subsequently generated from dispositions, Indebtedness incurrences and Equity Issuances).

(m)Article IV of the Existing Credit Agreement is hereby amended by inserting a new Section 4.9 at the end thereof as follows:

“Section 4.9 Effect of Benchmark Transition Event.

(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, (i) upon the determination of the Agent (which shall be conclusive absent manifest error) or upon the written notice provided by the Required Lenders to the Agent that a Benchmark Transition Event has occurred or (ii) upon the occurrence of an Early Opt-in Election, as applicable, the Agent and the Borrower may amend this Agreement to replace LIBOR with a Benchmark Replacement, by a written document executed by the Borrower and the Agent, subject to the requirements of this Section titled “Effect of Benchmark Transition Event.” Notwithstanding the requirements of Section 12.6 or anything else to the contrary herein or in any other Loan Document, any such amendment with respect to a Benchmark Transition Event will become effective and binding upon the Agent, the Borrower and the Lenders at 5:00 p.m. on the fifth (5th) Business Day after the Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders, and any such amendment with respect to an Early Opt-in Election will become effective and binding upon the Agent, the Borrower and the Lenders on the date that Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section titled “Effect of Benchmark Transition Event” will occur prior to the applicable Benchmark Transition Start Date.

(b) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(c) Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrower and the Lenders in writing of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or Lenders pursuant to this Section titled “Effect of Benchmark Transition Event,” including, without limitation, any determination with respect to a tenor, comparable replacement rate or adjustment, or implementation of any Benchmark Replacement Rate Conforming Changes, or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding on all parties hereto absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section titled “Effect of Benchmark Transition Event” and shall not be a basis of any claim of liability of any kind or nature by any party hereto, all such claims being hereby waived individually be each party hereto.

(d) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a borrowing, conversion to or continuation of a Loan of a particular Type to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to (x) Base Rate Loans in the case of LIBOR Loans or (y) Alternative Rate Loans in the case of Alternative Currency Loans. During any Benchmark Unavailability Period, the components of the Base Rate and Alternative Rate based upon LIBOR will not be used in any determination of the Base Rate or Alternative Rate, as applicable.”

(n)Section 6.1(l) of the Existing Credit Agreement is hereby modified by deleting the same in its entirety and replacing the same with the following:

(l) No Material Adverse Change; Solvency. Since December 31, 2016, there has been no material adverse change in the business, assets, liabilities, financial condition, results of operations or business prospects

of the Borrower and its Subsidiaries taken as a whole, provided, however, that, for purposes of this Section 6.1(l) and Section 5.2, (i) during the Covenant Relief Period only, the impact of the COVID-19 outbreak disclosed by the Borrower to the Lenders shall be disregarded, and (ii) after the Covenant Relief Period, the impact of the COVID-19 outbreak shall be considered a material adverse change, as described above, only if such material adverse change is still continuing at the time the representations and warranties in this Section 6.1(l) are given or deemed given. Each of the Loan Parties is Solvent.

(o)Section 6.1 of the Existing Credit Agreement is hereby amended by inserting a new clause (aa) at the end thereof as follows:

“(aa) Beneficial Ownership Certification. The information included in each Beneficial Ownership Certification is true and correct as of the date thereof. Borrower agrees that in connection with any amendment to this Agreement that it will, at least five (5) days prior to the closing date of such amendment, deliver to each Lender that so requests, a Beneficial Ownership Certification for any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation.”

(p)Section 7.15(b) of the Existing Credit Agreement is hereby deleted in its entirety and replaced with the following:

“(b) If, (x) after the Agreement Date, a Guaranty Trigger Event occurs with respect to any Subsidiary, then the Borrower shall cause such Subsidiary, or (y) after the Amendment No. 1 Effective Date and during the continuation of the Covenant Relief Period, an Alternate Trigger Event occurs, then the Borrower shall cause all Unencumbered Property Owner Subsidiaries to execute and deliver to the Agent, within 10 Business Days after the occurrence of such Guaranty Trigger Event or Alternate Trigger Event, as the case may be, (i) a joinder to the Subsidiary Guaranty in the form of Exhibit A attached to the form of Subsidiary Guaranty (or if the Subsidiary Guaranty is not then in effect, the Subsidiary Guaranty executed by such Subsidiary), and (ii) the organizational documents, certificates of good standing, resolutions and, if requested by the Agent, a legal opinion regarding such Subsidiary or Unencumbered Property Owner Subsidiaries (as applicable), all in form and substance reasonably satisfactory to the Agent and consistent with the corresponding items delivered by the Borrower under Section 5.1(a) of this Agreement. A "Guaranty Trigger Event" shall mean, with respect to any Subsidiary, such Subsidiary becomes obligated, in whole or in part, as a co-borrower or guarantor or the like with respect to any of the Bonds or any other unsecured Indebtedness of the Borrower for borrowed money. At the time any Subsidiary becomes a Subsidiary Guarantor, the Borrower shall be deemed to make to the Agent and the Lenders all of the representations and warranties (subject in all cases to all materiality qualifiers and other exceptions in such representations and warranties) contained in this Agreement and the other Loan Documents to the extent they apply to such Subsidiary Guarantor.”

(q)Section 7.16 of the Existing Credit Agreement is hereby deleted in its entirety and replaced with the following:

“Section 7.16 Springing Equity Pledge.

(a) If, after the Amendment No. 1 Effective Date and during the continuation of the Covenant Relief Period, a Pledge Trigger Event occurs, then, in addition to Borrower’s obligations under Section 7.15(b), within five (5) Business Days of the occurrence of such Pledge Trigger Event, the Borrower will provide to the Lenders a proposed schedule of Unencumbered Properties with respect to which an equity interest pledge shall be granted to the Agent, as Collateral Agent on behalf of (x) the Lenders, to secure the Obligations, and (y) the holders of the Private Placement Bonds, to secure the obligations of the Borrower to such holders in connection with the Private Placement Bonds, which Unencumbered Properties will be representative (on a pro rata value basis) of the various asset classes owned by the Borrower, with the aggregate Unencumbered Asset Value of such Unencumbered Properties at least equal to the Required Value. The proposed schedule of Unencumbered Properties shall be subject to the approval of the Required Lenders in their reasonable discretion, together with any approval of the holders of the Private Placement Bonds required under the Approved Bonds Amendment. In the event the Required Lenders, in their reasonable discretion, do not approve such schedule, the Required

Lenders shall have the right to revise the schedule of Unencumbered Properties to reflect, in the reasonable determination of the Required Lenders, a fair representation (on a pro rata value basis) of the various asset classes owned by the Borrower, with the aggregate Unencumbered Asset Value of such revised schedule of Unencumbered Properties to be as close as practicable to (but not less than) the Required Value. Upon approval (or revision) by the Required Lenders (and, if applicable, upon any similar approval required under the Approved Bonds Amendment) of such list of Unencumbered Properties (such final list, the “Pledged Properties”), the Borrower shall cause each owner of Equity Interests of the Unencumbered Property Owner Subsidiaries that own such Pledged Properties to (i) execute and deliver to the Agent, as Collateral Agent for the benefit of the Lenders and the holders of the Private Placement Bonds, within ten (10) Business Days after the approval (or revision) of the Pledged Properties schedule, a pledge agreement in the form of Exhibit “A” annexed hereto (or joinder to any existing pledge agreement if already in effect pursuant to this Section 7.16) and appropriate certificates and powers or Uniform Commercial Code financing statements, pledging all ownership interests in each such Unencumbered Property Owner Subsidiary with respect to the Pledged Properties, in form and substance satisfactory to Agent, and (ii) the organizational documents, certificates of good standing, resolutions and, if requested by the Agent, a legal opinion regarding Borrower and such Subsidiaries, all in form and substance reasonably satisfactory to the Agent and consistent with the corresponding items delivered by the Borrower under Section 5.1(a) of this Agreement. Any such pledge shall also require, as determined by the Agent, delivery of an intercreditor agreement in the form of Exhibit “B” attached hereto establishing the ratable priority of the liens granted to the Agent with any liens held by any holder of the Bonds or other creditors that are granted a lien on such pledged collateral. Thereafter, if (i) the Required Value should increase as a result of an increase in the sum of (A) the Outstanding Amounts due under this Agreement and (B) the outstanding principal amount of the Private Placement Bonds, the above process shall be repeated as of the date of any such increase, or (ii) there is an increase or decrease in the aggregate Unencumbered Asset Value of the Pledged Properties as a result of a Lease Modification (as hereinafter defined), the above process shall be repeated as of the date of delivery of the financial statements next required to be delivered pursuant to Section 8.1(a) or Section 8.1(b) after the date of such Lease Modification, in each case with respect to the pledge of equity interests in respect of additional Unencumbered Properties (which shall then be deemed Pledged Properties) such that the aggregate Unencumbered Asset Value of all of the Pledged Properties shall be as close as practicable to (but not less than) the Required Value. For the purposes of this Section 7.16, the Unencumbered Asset Value of each Pledged Property shall mean (I) for any Pledged Property (other than any AMC Pledged Property) owned by the Borrower and its Subsidiaries on March 31, 2020, the Unencumbered Asset Value of such Pledged Property as of such date, (II) for an AMC Pledged Property owned by the Borrower and its Subsidiaries on March 31, 2020, 80% of the Unencumbered Asset Value of such AMC Pledged Property as of such date (except as otherwise provided in clause (IV) below), (III) for any Pledged Property (including any AMC Pledged Property) owned by the Borrower and its Subsidiaries and acquired after March 31, 2020, the cost of such Pledged Property determined in accordance with GAAP and (IV) for any Pledged Property (including any AMC Pledged Property) that has undergone a lease modification after March 31, 2020 where the rent has been permanently adjusted (a “Lease Modification”), the Unencumbered Asset Value of such Pledged Property determined after giving effect to the new rent charged (for purposes of this clause (IV), a termination of a lease or the vacating by the tenant of a Pledged Property shall be deemed to be a permanent adjustment of the rent to $0 until such time as such Pledged Property is re-leased, at which time such Pledged Property shall have an Unencumbered Asset Value based on the new lease); provided that, (x) for purposes of clauses (I) and (IV) immediately above, the capitalization rate used to value any Topgolf Real Estate shall be 8% rather than 7.5% (such 8% capitalization rate being the capitalization rate for Topgolf Real Estate under the Note Purchase Agreement for the Private Placement Bonds, as amended through the Approved Bonds Amendment), and (y) for the avoidance of doubt, a COVID-19 related deferral of rent or similar payments shall not constitute a Lease Modification.

(b) At such time as the Covenant Relief Period shall have been terminated or expired in accordance with the terms of this Agreement, provided any Subsidiary Guaranty described in Section 7.15(b) and any pledges described under Section 7.16(a) granted to any other creditor above have been or are simultaneously being released and terminated, the Agent shall similarly release each such Subsidiary Guaranty and the pledges

delivered under Section 7.16(a) as result of the occurrence of an Alternate Trigger Event or Pledge Trigger Event.”

(r)Section 7.20 of the Existing Credit Agreement is hereby deleted in its entirety and replaced with the following:

Section 7.20 Most Favored Nations. If, during the continuation of the Covenant Relief Period, the Approved Bonds Amendment, or any future amendment or modification of any of the Private Placement Bonds (a “Material Credit Facility”), shall include any financial or other material covenant that is not contained in Section 9.1 or in this Agreement is more restrictive than the analogous provision contained in Section 9.1 or otherwise in this Agreement (any such covenant, together with any related definitions (including any components of such definitions) (including, without limitation, any term defined therein with reference to the application of GAAP, as identified in such applicable Material Credit Facility), an “Additional or More Restrictive Covenant”; provided that the different methodology in calculating the financial covenants under the Private Placement Bonds in effect prior to the execution of the Approved Bonds Amendment shall not constitute an Additional or More Restrictive Covenant), then the Borrower shall promptly, and in any event within 10 Business Days thereof, provide a written notice to the Agent (a “Most Favored Lender Notice”) with respect to each such Additional or More Restrictive Covenant. Thereupon, unless waived in writing by the Required Lenders within 10 days of the Agent’s receipt of such notice, such Additional or More Restrictive Covenant shall be deemed incorporated by reference into this Agreement, mutatis mutandis, as if set forth fully herein, effective as of the earliest date when such Additional or More Restrictive Covenant became effective under such Material Credit Facility. Any Additional or More Restrictive Covenant incorporated into this Agreement pursuant to this provision, (1) shall be deemed automatically waived herein to reflect any waiver of such Additional or More Restrictive Covenant under the applicable Material Credit Facility, (2) shall be deemed automatically amended herein to reflect any subsequent amendments agreed and implemented in relation to such Additional or More Restrictive Covenant under the applicable Material Credit Facility; and (3) shall be deemed deleted from this Agreement at such time as such Additional or More Restrictive Covenant is deleted or otherwise removed from or is no longer in effect under or pursuant to each Material Credit Facility; provided that in no event shall the effect of any event contemplated by clause (1), (2) or (3) above result in any covenant set forth in Section 9.1 being less restrictive than it was on Amendment No. 1 Effective Date; provided further in each case that any consideration paid or provided to any holder of Indebtedness under any Material Credit Facility in connection with an event contemplated by clause (1), (2) or (3) above (other than reimbursement of expenses and repayment in full of such Material Credit Facility in connection with its termination) is paid to each Lender at the same time and on equivalent terms; and provided further that no Additional or More Restrictive Covenant shall be so deemed automatically waived, amended or deleted during any time that a Default or Event of Default has occurred and is continuing. In determining whether a breach of any financial covenant incorporated by reference into this Agreement pursuant to this Section 7.20 shall constitute an Event of Default, the period of grace, if any, applicable to such Additional or More Restrictive Covenant in the applicable Material Credit Facility shall apply.

(s)Article VII of the Existing Credit Agreement is hereby modified by inserting a new Section 7.22 at the end thereof as follows:

“Section 7.22 Beneficial Ownership. Promptly following any request therefor, Borrower shall provide information and documentation reasonably requested by Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation.”

(t)Section 9.1 of the Existing Credit Agreement is hereby modified as follows:

(i)Section 9.1(a) of the Existing Credit Agreement is hereby deleted in its entirety and replaced with the following:

“(a) Minimum Liquidity. During the Covenant Relief Period, calculated on a Consolidated basis with respect to the Borrower, the sum of (i) unrestricted cash and Cash Equivalents held by the Borrower and its Subsidiaries (with the Borrower directly or through the applicable Subsidiary having full access thereto), and (ii) undrawn availability under this Agreement (to the extent available to be drawn at the date of determination in accordance with this Agreement), shall be greater than or equal to $250,000,000.”

(ii) Section 9.1(f) of the Existing Credit Agreement is hereby deleted in its entirety and replaced with the following:

“(f) Maximum Unsecured Debt to Unencumbered Asset Value. Calculated on a Consolidated basis with respect to the Borrower, the ratio of Unsecured Indebtedness of the Borrower to Unencumbered Asset Value shall not exceed 60%. Notwithstanding the foregoing, (x) for four consecutive quarters following a Material Acquisition, the ratio of Unsecured Indebtedness of the Borrower to Unencumbered Asset Value shall not exceed 65% and (y) for all purposes under this Section 9.1(f), (1) the amount of Short-Term Unsecured Indebtedness included in the calculation of Unsecured Indebtedness shall be reduced by the aggregate amount of unrestricted cash and Cash Equivalents held by Borrower on a Consolidated basis (with the Borrower directly or through the applicable Subsidiary having full access thereto) in excess of $25,000,000, and (2) Unencumbered Asset Value shall be increased by the amount of Excess Unrestricted Cash as of the applicable date of calculation."

(iii) The following new clause (i) is hereby inserted at the end of said Section 9.1:

“(i) Notwithstanding the foregoing, (x) during the Covenant Relief Period, Borrower shall have no obligation to satisfy any of the covenants set forth in Section 9.1(b) (Total Debt to Total Asset Value) or Section 9.1(f) (Maximum Unsecured Debt to Unencumbered Asset Value), and no payment will be required under Section 2.6(b)(i)(B) as result of the Borrower’s non-compliance with Section 9.1(f), and (y) during the period commencing on the Amendment No. 1 Effective Date and ending on the earliest to occur of (1) October 1, 2020 and (2) the earlier expiration of the Covenant Relief Period, Borrower shall have no obligation to satisfy the covenants set forth in Section 9.1(g) (Minimum Unsecured Interest Coverage Ratio) (and no payment will be required under Section 2.6(b)(i)(B) as result of the Borrower’s non-compliance with Section 9.1(g)), and Section 9.1(h) (Minimum Fixed Charge Coverage Ratio), provided Borrower shall continue to deliver to the Agent duly completed Compliance Certificates, for informational purposes only, as and when required under Section 8.1(c) certifying as to the Borrower’s calculations of the financial tests set forth in this Section 9.1, notwithstanding that covenants referenced in the foregoing clauses (x) and (y) of this sentence are not required to be satisfied during the periods specified therein. Immediately following the expiration of applicable waiver period described in either preceding clauses (x) and/or (y), respectively and as applicable, each financial covenant contained in this Section 9.1 shall be in full force and effect, in each case, without giving effect to the terms of this clause (i).”

(u)Section 9.4 of the Existing Credit Agreement is hereby modified by inserting the following at the end thereof:

“Notwithstanding anything to the contrary herein, during the Covenant Relief Period, Borrower and its Subsidiaries shall not repurchase any common stock of the Borrower, other than pursuant to the Borrower's 2007 and 2016 equity incentive plans in amounts generally consistent with past practice.”

(v)A new Section 9.12 is hereby added to the Existing Credit Agreement as follows:

“Section 9.12. Covenant Relief Period. Notwithstanding anything to the contrary contained herein, so long as the Covenant Relief Period is continuing:

(a) (i) The Borrower shall not, and shall not permit any Subsidiary to, (A) make any Investments pursuant to Sections 9.4(m) or (p), or (B) make any Investments described under Section 9.4(n) in any new Subsidiary to facilitate any Investment under Sections 9.4(m) or (p), and (ii) the Borrower shall not incur any

Indebtedness under Section 9.3(b) which constitutes a guaranty (other than a “bad boy” guaranty permitted under clause (d) of Section 9.3 (b)) incurred in connection with any Indebtedness of a Subsidiary, except for any such Investments and/or Indebtedness under the foregoing clauses (i) and (ii), respectively, which (A) in the aggregate, does not exceed (x) $75,000,000 during the period commencing on the Amendment No. 1 Effective Date and ending on December 31, 2020, and (y) $50,000,000 during the calendar quarter commencing on January 1, 2021, or (B) constitute non cash acquisitions made in exchange for forgiveness of deferred rent or payments under EPR Senior Property Loans;

(b) the Borrower shall not make any Distributions (i) on account of any common stock in the Borrower, other than the minimum Distributions required under the Internal Revenue Code to maintain the REIT Status of the Borrower, as evidenced by a certification of the chief financial officer of the Borrower or its Vice President - Finance containing calculations in reasonable detail reasonably satisfactory in form and substance to the Agent, (ii) to avoid incurring any corporate income or excise taxes, or (iii) in excess of $6,100,000.00 in the aggregate in any calendar quarter on account of any preferred stock in the Borrower issued prior to the Amendment No. 1 Effective Date;

(c) the Borrower shall not, and shall not permit any Subsidiary to, make any capital expenditures with respect to any Real Estate except for: (i) discretionary capital expenditures which do not to exceed (x) $125,000,000 in the aggregate during the period commencing on the Amendment No. 1 Effective Date and ending on December 31, 2020, and (y) $50,000,000 during the calendar quarter commencing on January 1, 2021, and (ii) capital expenditures incurred in connection with any emergency repairs posing an imminent threat to life safety or property damage;

(d) the Borrower shall not, and shall not permit any Subsidiary to, voluntarily prepay any outstanding Private Placement Bond; and

(e) in addition to all financial reporting required under this Agreement, the Borrower shall submit, as soon as practicable, but in any event not later than fifteen (15) days after (i) the end of each January, February, April, May, July, August, October and November (beginning with the month of July 2020), an unaudited income statement for such month, and (ii) the end of each calendar month (beginning with the month of July 2020), a statement of the Borrower’s Consolidated unrestricted cash and Cash Equivalents for such month.

(w)Article XII of the Existing Credit Agreement is hereby modified by inserting a new Section 12.21 the end thereof as follows:

“Section 12.21 ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Derivatives Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States.

In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

As used in this Section 12.21, the following terms have the following meanings:

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).”

SECTION 3.Conditions Precedent. This Agreement shall become effective as of the first date (the “Amendment No. 1 Effective Date”) when each of the following conditions shall have been satisfied or waived in writing by the Agent:

(i)Representations and Warranties. The representations and warranties of the Borrower contained in Article VI of the Existing Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Agreement, the representations and warranties contained Section 6.1(k) of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to such Section.

(ii)No Default. Neither a Default nor Event of Default shall exist, or would result from, the effectiveness of this Agreement.

(iii)This Agreement. The Agent shall have received executed counterparts hereof that, when taken together, bear the signatures of the Borrower, the Required Lenders, and the Agent.

(iv)Officer’s Certificates The Agent shall have received a certificate or certificates executed by a Responsible Officer of the Borrower as of the Amendment No. 1 Effective Date, in form and substance satisfactory to the Agent, stating that (A) the conditions precedent specified herein with respect to the Borrower have been satisfied, (B) no Default or Event of Default exists, (C) attaching copies of the organization documents of the Borrower, (D) all material governmental, shareholder and third party consents and approvals, if any, with respect to this Agreement and any other instruments or documents executed and delivered in connection with this Agreement and the transactions contemplated thereby have been obtained (and attaching copies thereof), and (E) that no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or governmental instrumentality that purports to affect the Borrower or any transaction contemplated

by the Loan Documents executed and delivered in connection with this Agreement, if such action, suit, investigation or proceeding could reasonably be expected to have a Material Adverse Effect.

(v)Opinions. The Agent shall have received an opinion of legal counsel to the Borrower, in form and content satisfactory to the Agent to the effect that: (i) the Borrower is validly existing and in good standing in its state of formation and has all requisite power and authority to enter into this Agreement; (ii) this Agreement has been duly authorized, executed and delivered by the Borrower; (iii) the transactions described in this Agreement will not constitute a default or breach under the terms of any material agreement or instrument listed by Borrower as an exhibit to its quarterly report on Form 10-Q filed with the Securities and Exchange Commission for the fiscal quarter ended March 31, 2020; and (iv) such other matters, incident to the transactions contemplated hereby, as the Agent may reasonably request.

(vi)Fees and Expenses. The Borrower shall have paid all fees required in connection with the closing of the Existing Credit Agreement and this Amendment and all costs and expenses (including attorneys’ costs and fees) incurred by the Agent in documenting or implementing same.

(vii)Closing Fee. The Borrower shall have paid to each Lender executing this Amendment as of the Amendment No. 1 Effective Date a closing fee in an amount equal to such Lender’s aggregate Commitment multiplied by ten basis points (0.10%).

(viii)Approved Bonds Amendment. The Borrower shall have delivered and executed copy of the Approved Bonds Amendment, which Approved Bonds Amendment shall become effective either prior to or simultaneously with this Amendment.

(ix)Other Deliverables. The Borrower shall have provided to the Agent, and the Agent shall have approved, all other materials, documents and submissions requested by the Agent in connection with the transactions contemplated by this Agreement.

SECTION 4.Litigation; Jurisdiction; Other Matters; Waivers.

(i)GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.

(ii)WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AMENDMENT OR THE EXISTING CREDIT AGREEMENT (AS AMENDED HEREBY), THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.

(iii)SUBMISSION TO JURISDICTION; WAIVER OF VENUE. EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AMENDMENT, THE EXISTING

CREDIT AGREEMENT (AS AMENDED HEREBY), THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.

SECTION 5.Credit Agreement Governs; Ratification. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver or novation of or otherwise affect the rights and remedies of any Lender or the Agent under the Existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document in similar or different circumstances.

SECTION 6.Counterparts. This Agreement, which constitutes a Loan Document, may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of any executed counterpart of a signature page of this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

SECTION 7.Severability. If any provision or obligation under this Agreement shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from this Agreement and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of this Agreement.

[Signatures Appear on Following Page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.

“BORROWER”

EPR PROPERTIES

By: /s/ Mark A. Peterson

Name: Mark A. Peterson

Title: Executive Vice President

[Signatures Continue on Following Page]

“AGENT AND LENDERS”

KEYBANK NATIONAL ASSOCIATION,

in its capacity as Lender and as Agent

By: /s/ Darin Mainquist

Name: Darin Mainquist

Title: Assistant Vice President

[Signatures Continue on Following Page]

JPMORGAN CHASE BANK, N.A.,

in its capacity as Lender

By: /s/ Lance Buxkemper

Name: Lance Buxkemper

Title: Executive Director

[Signatures Continue on Following Page]

ROYAL BANK OF CANADA,

in its capacity as Lender

By: /s/ Brian Gross

Name: Brian Gross

Title: Authorized Signatory

[Signatures Continue on Following Page]

BANK OF AMERICA, N.A.,

in its capacity as Lender

By: /s/ Kyle Pearson

Name: Kyle Pearson

Title: Vice President

[Signatures Continue on Following Page]

CITIBANK, N.A.,

in its capacity as Lender

By: /s/ Tina Lin

Name: Tina Lin

Title: Vice President

[Signatures Continue on Following Page]

BARCLAYS BANK PLC,

in its capacity as Lender

By: /s/ Craig Malloy

Name: Craig Malloy

Title: Director

[Signatures Continue on Following Page]

UMB Bank N.A.,

in its capacity as Lender

By: /s/ Will Fox

Name: Will Fox

Title: Senior Vice President

[Signatures Continue on Following Page]

BANK OF THE WEST, A CALIFORNIA BANKING CORPORATION,

in its capacity as Lender

By: /s/ Stephanie Beggs

Name: Stephanie Beggs

Title: Vice President

[Signatures Continue on Following Page]

MEGA INTERNATIONAL COMMERCIAL BANK, CO., LTD.,

SILICON VALLEY BRANCH,

in its capacity as Lender

By: /s/ Szu Yao Huang

Name: Szu Yao Huang

Title: VP & General Manager

[Signatures Continue on Following Page]

Bank of Blue Valley,

in its capacity as Lender

By: /s/ Douglas P. Gaumer

Name: Douglas P. Gaumer

Title: Commercial Banker Senior, SVP

[Signatures Continue on Following Page]

BOKF NA,

in its capacity as Lender

By: /s/ Charles Hunter

Name: Charles Hunter

Title: SVP

[Signatures Continue on Following Page]

STIFEL BANK & TRUST,

in its capacity as Lender

By: /s/ Joseph L. Sooter, Jr.

Name: Joseph L. Sooter, Jr.

Title: Senior Vice President

[Signatures Continue on Following Page]

U.S. BANK NATIONAL ASSOCIATION,

in its capacity as Lender

By: /s/ Michael A. Raarup

Name: Michael A. Raarup

Title: Senior Vice President

[Signatures Continue on Following Page]

CITIZENS BANK, NATIONAL ASSOCIATION,

in its capacity as Lender

By: /s/ Frank Kaplan

Name: Frank Kaplan

Title: Vice President

[Signatures Continue on Following Page]

TRUIST BANK (as successor by merger to SunTrust Bank),

in its capacity as Lender

By: /s/ Tesha Winslow

Name: Tesha Winslow

Title: Director

[Signatures Continue on Following Page]

E.SUN COMMERCIAL BANK LIMITED, LOS ANGELES BRANCH,

in its capacity as Lender

By: /s/ Mandy Yeh

Name: Mandy Yeh

Title: VP & General Manager

[Signatures Continue on Following Page]

RAYMOND JAMES BANK, N.A.,

in its capacity as Lender

By: /s/ Mark Specht

Name: Mark Specht

Title: Vice President

EXHIBIT A

FORM OF PLEDGE AGREEMENT

THIS PLEDGE AND SECURITY AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, ARE SUBJECT IN ALL RESPECTS TO THE TERMS AND CONDITIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT DESCRIBED BELOW. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS OF THIS PLEDGE AND SECURITY AGREEMENT AND THE TERMS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, THE TERMS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT SHALL CONTROL

PLEDGE AND SECURITY AGREEMENT

[________ __], 202_

This PLEDGE AND SECURITY AGREEMENT (this “Pledge and Security Agreement” or “Agreement”) is entered into by and among EPR Properties, a Maryland real estate investment trust (the “Borrower”), and each of the undersigned entities listed on Schedule I hereof (together with any other Additional Pledgors that become party hereto pursuant to Section 16(k), each a “Pledgor”, and collectively, the “Pledgors”), and KEYBANK NATIONAL ASSOCIATION, a national banking association, having a place of business at 225 Franklin Street, Boston, Massachusetts 02110, as collateral agent on behalf of the Secured Parties (“Collateral Agent”).

RECITALS:

A. Pursuant to that certain Credit Agreement dated September 27, 2017, as amended by that certain Amendment No. 1 to the Second Amended, Restated and Consolidated Credit Agreement dated June __, 2020 (as further amended, restated, renewed, replaced, supplemented, or otherwise modified from time to time, the “Credit Agreement”) entered into by and among the Borrower, with certain of the Borrower’s Subsidiaries becoming guarantors, KeyBank National Association as administrative agent (in such capacity, the “Bank Agent”), and the financial institutions who are or hereafter become parties to such Credit Agreement as “Lenders” (the “Banks”), the Bank Agent and the Banks agreed to make certain loans and other financial accommodations (collectively, the “Loan” or “Loans”) to the Borrower, upon the terms and subject to the conditions set forth therein.

B. Pursuant to that certain Note Purchase Agreement dated as of August 1, 2016 (as amended by the First Amendment dated as of September 27, 2017, and that certain Second Amendment dated as of June __, 2020, the “Original Note Purchase Agreement”) entered into by the Borrower with each of the Purchasers listed in the Purchaser Schedule thereto, the Borrower has issued and has outstanding $340,000,000 aggregate principal amount of its Guaranteed Senior Notes, consisting of (a) $148,000,000 aggregate principal amount of its 4.35% Series A Guaranteed Senior Notes due August 22, 2024 and (b) $192,000,000 aggregate principal amount of its 4.56% Series B Guaranteed Senior Notes due August 22, 2026 (collectively, the “Notes”)

C. Pursuant to the Credit Agreement and the Note Purchase Agreement, Pledgors have agreed to pledge certain equity interests and related rights to the Collateral Agent, for the benefit of the Secured Parties, to secure all of the Borrower’s obligations under the Credit Agreement, the Note Purchase Agreement and the Notes.

D. Pursuant to that certain Intercreditor and Collateral Agency Agreement dated _________, 20__ (the “Intercreditor Agreement”) entered into among the Collateral Agent, the Bank Agent and the holders of the Notes, the Bank Agent, on behalf of the Banks, and the holders of the Notes agreed that the Collateral Agent would hold the Collateral granted under this Agreement for the ratable benefit of the Secured Parties and otherwise made the agreements set forth in the Intercreditor Agreement. Capitalized terms used herein and not otherwise defined herein, but defined in the Intercreditor Agreement, shall have the respective meanings set forth in the Intercreditor Agreement.

NOW, THEREFORE, in consideration of the foregoing, the Pledgors hereby agree with the Collateral Agent as follows:


1.	Grant of Pledge. As security for the punctual payment and performance in full when due of the Senior Indebtedness, each Pledgor does hereby grant to the Collateral Agent, for the ratable benefit of the Secured Parties, and pledge a continuing lien on, and security interest in, all of its right, title, and interest in and to the Collateral.


2.	Defined Terms. Unless otherwise defined herein or in the Credit Agreement as in effect on the date hereof or the Intercreditor Agreement, capitalized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC. The following terms shall have the following meanings:

(a) Capital Stock. The term “Capital Stock” shall mean and include, collectively, all shares of capital stock (whether denominated as common or preferred stock), partnership, limited liability company, or membership interests, joint venture interests or other ownership interests in or equivalents of or in a Person (other than an individual), whether voting or non-voting.

(b) CFC. The term “CFC” shall mean a Person that is a controlled foreign corporation under Section 957 of the Code.

(c) Collateral. The term “Collateral” shall mean and include, collectively, all Pledged Interests owned by each Pledgor, together with (i) all interests, certificates (if any), options or rights of any nature whatsoever which may be issued or granted to or in respect of such Pledged Interests, (ii) all Distributions in respect thereof; (iii) all books, records, electronically stored data and information relating to such Pledged Interests and all rights of access to such books, records, and information; (iv) all additions to the Pledged Interests, all substitutions therefor and all replacements thereof; (v) all Voting Rights related thereto; (vi) all contract rights, general intangibles, claims, powers, privileges, benefits and remedies of relating to the foregoing; and (vii) all cash or non-cash Proceeds of any of the foregoing.

(d) Issuer. The term “Issuer” shall have the meaning given to such term in the definition of “Pledged Interests” below.

(e) Loan Agreements. The term “Loan Agreements” shall mean, individually and collectively, as the context so requires, the Credit Agreement and the Loan Documents (as defined therein) and the Note Purchase Agreement, the Notes and all instruments and other documents related thereto.

(f) Permitted Liens. The term “Permitted Liens” shall mean Liens permitted under both clause (a) of the definition of Permitted Liens in the Credit Agreement and clause (a) of the definition of Permitted Liens in the Note Purchase Agreement.

(g) Pledged Collateral Agreement. The term “Pledged Collateral Agreement” shall have the meaning given to such term in Section 4(c)(ii) below.

(h) Pledged Interests. The term “Pledged Interests” shall mean and include, collectively, all Equity Interests owned by each Pledgor in any Subsidiary thereof which such Pledgor is required to pledge pursuant to the Loan Agreements (including, without limitation, each Subsidiary described in Schedule II hereof) (each, individually, an “Issuer” and, collectively, the “Issuers”), whether now existing or hereafter acquired or formed, as more particularly described in Schedule II hereof (including as such Schedule II may be supplemented from time to time by virtue of any Joinder Agreement or other supplement or amendment to this Agreement), and all Equity Interests in any successor corporation or interests or certificates of any successor limited liability company, partnership or other entity owned by each Pledgor formed by or resulting from any consolidation or merger in which any such Subsidiary thereof is not the surviving entity; provided, however, that to the extent applicable, Pledged Interests shall not include Equity Interests possessing more than 65% of the voting power or control of all classes of interests entitled to vote of any CFC to the extent such pledge would result in a material adverse tax consequence to such Pledgor.

(i) Secured Parties. The term “Secured Parties” shall mean and include, collectively, the Collateral Agent, the Bank Agent, each Senior Lender and each Noteholder.

(j) UCC. The term “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the applicable jurisdiction.

(k) Voting Rights. The term “Voting Rights” shall mean all rights and interests under each of the operating agreements of each Issuer and each shareholders agreement, voting trust, proxy agreement, or similar agreement in respect of the Pledged Interests, including all management rights and rights to vote and give approvals, consents, decisions and directions and exercise any other control or similar right with respect to the Pledged Interests.


3.	Warranties and Representations. Each Pledgor warrants and represents to, and agrees with, Collateral Agent that:

(a) Pledged Interests.

(i) Schedule II attached hereto (as the same may be amended from time to time) correctly sets forth the percentage of the issued and outstanding shares of each class of the Capital Stock of any Issuer owned by each Pledgor;

(ii) The Pledged Interests pledged by such Pledgor constitute all of the issued and outstanding shares of Capital Stock of each Issuer owned by such Pledgor, except to the extent provided in the definition of “Pledged Interests”, and such Pledgor owns no securities convertible into or exchangeable for any shares of Capital Stock of any such Issuer that do not constitute Pledged Interests hereunder;

(iii) Such Pledgor is and shall be the sole owner of, and has and shall have good and valid title to, its respective Pledged Interests as identified on Schedule II attached hereto (as the same may be amended from time to time), free and clear of all Liens, security interests and other encumbrances of every nature whatsoever, except (x) in favor of the Collateral Agent, for the benefit of the Secured Parties, and (y) Permitted Liens, and the Pledged Interests have not previously been assigned, sold, transferred, pledged or encumbered (except pursuant to this Agreement);

(iv) All of the Pledged Interests held by such Pledgor have been duly and validly issued, and, if applicable, are fully paid and non-assessable, subject in the case of Pledged Interests constituting partnership interests or limited liability company interests or membership interests to future assessments required under applicable law and any applicable partnership or operating agreement;

(v) With respect to any Pledged Interests of such Pledgor in an Issuer that is a limited liability company or partnership, (i) such Pledgor is a duly constituted member or partner of such Issuer pursuant to the limited liability company or partnership agreement of such Issuer, and (ii) such Pledged Interests are not credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC);

(vi) True and complete copies of the organizational documents of each Issuer and any shareholders agreement, voting trust, proxy agreement, or similar agreement related thereto have been delivered by the Pledgors to Collateral Agent, and the same have not been further amended or modified in any respect whatsoever;

(vii) With respect to any Pledged Interests of such Pledgor in an Issuer that is a corporation, such Pledged Interests (i) are “securities” within the meaning of Sections 8-102(a)(15) and 8-103 of the UCC, (ii) are “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) and (iii) are not credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC);

(viii) With respect to any Pledged Interests of such Pledgor in an Issuer that is a corporation, such Pledged Interests are certificated; and ¹

(ix) With respect to any Pledged Interests of such Pledgor in an Issuer that is a limited liability company or a limited partnership, the operating agreement or partnership agreement of such Issuer, as applicable, and, if such is the case, each certificate, if any, evidencing such Pledged Interests, state that such Pledged Interests are “securities” as such term is defined in Article 8 of the UCC as in effect in the Issuer’s state of organization. ²

(b) Perfection.

(i) No Pledged Interests are evidenced or represented by certificates except to the extent set forth on Schedule II attached hereto (as the same may be amended from time to time) and all such original certificates, if any, have been delivered to the Collateral Agent accompanied by instruments of transfer or assignment duly executed in blank, all in form and substance satisfactory to the Collateral Agent;

(ii) No Pledged Interest consisting of partnership or limited liability company interests that is not evidenced or represented by a certificate constitutes a “security” for purposes of Article 8 of the UCC of the jurisdiction of organization of the Issuer of such Pledged Interests (except if and as otherwise noted in Schedule II, including any supplements or amendments thereto) and, except as has been obtained, the applicable organizational documents with respect to such Pledged Interest do not require the consent of the other shareholders, members, partners or other Persons to permit the Collateral Agent or its designees to be substituted for the applicable Pledgor as a shareholder, member, partner or other equity owner, as applicable, thereto;

(iii) None of the Pledged Interests are dealt in or traded on securities exchanges or in securities markets, and none of the Pledged Interests by its terms expressly provides that it is an investment company security, and none of the Pledged Interests is held in a securities account (as defined in Section 8-501 of the UCC);

(iv) The security interests granted to the Collateral Agent pursuant to this Agreement (i) upon completion of the filings and other actions specified on Schedule III attached hereto (as the same may be amended from time to time) (which, in the case of all filings and other documents referred to on said Schedule, have been delivered to the Collateral Agent completed and duly executed (if applicable)) will constitute valid perfected security interests in all of the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Senior Indebtedness, enforceable in accordance with the terms hereof against any creditors of such Pledgor and any Persons purporting to purchase any Collateral from such Pledgor (except as enforceability may be limited to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law)), and (ii) are prior to all other Liens on the Collateral (except Permitted Liens having priority by operation of law);

(v) No Person other than the Collateral Agent has “control” (as defined in the UCC) or possession of all or any part of the Collateral except as permitted by the Loan Agreements;

(vi) To the extent issued, the original certificates representing 100% of the Pledged Interests have been delivered to the Collateral Agent accompanied by instruments of transfer or assignment duly executed in blank by the Pledgor; and

___________________________

¹If the Pledged Interests are not certificated at the time of the pledge and the Collateral Agent does not require that they become certificated, clause (viii) may be modified accordingly

² Include clause (ix) only if the Pledged Interests constitute “securities” within the meaning of the Uniform Commercial Code of the Issuer's state of organization; modify as needed if securities are uncertificated

(vii) There is no agreement, and no Pledgor shall enter into any agreement or take any other action, that would restrict the transferability of any of the Collateral or otherwise impair or conflict with such Pledgor’s obligations or the rights of the Collateral Agent hereunder (except for any such existing agreement containing transfer or similar restrictions, which restrictions have been waived to the Collateral Agent’s satisfaction).

(i) Such Pledgor has the full right, power and authority to pledge its respective Collateral and to grant the security interest in the Collateral as herein provided;

(ii) There are no restrictions on the transfer of any Collateral owned by such Pledgor to Collateral Agent hereunder or with respect to any subsequent transfer thereof or realization thereupon by Collateral Agent (except for any such restrictions that have been waived to the Collateral Agent’s satisfaction), and each Pledgor hereby waives any restrictions under any Pledged Collateral Agreement or applicable Law or otherwise (other than under any applicable securities laws) which otherwise might apply to the exercise by the Collateral Agent of the rights and remedies provided in this Agreement so as to permit (i) such Pledgor to enter into and perform such Pledgor’s obligations under this Agreement and (ii) the Collateral Agent’s exercise of the Collateral Agent’s rights and remedies set forth hereunder;

(iii) This Agreement constitutes the legal, valid and binding obligation of such Pledgor in accordance with the terms hereof and has been duly authorized, executed and delivered, 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;

(iv) The execution and delivery of this Agreement will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any Pledgor is subject or any judgment, order, writ, injunction, license or permit applicable to such Pledgor or any indenture, mortgage, deed of trust, or other material agreement or instrument to which such Pledgor is a party or by which such Pledgor may be bound, or to which such Pledgor may be subject; and

(v) There is no material litigation or administrative proceeding now pending, or to the best of its knowledge threatened in writing, against such Pledgor which could reasonably be expected to materially impair the ability of such Pledgor to pay or perform such Pledgor’s obligations hereunder or the exercise by the Collateral Agent of its rights and remedies hereunder.


4.	Pledgor’s Agreements. Each Pledgor agrees so long as the Senior Indebtedness remains outstanding that:

(a) Delivery of certificates; Perfection.

(i) Upon obtaining any additional Pledged Interests, any Capital Stock, any certificate (including any certificate representing a dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of such Capital Stock of any Issuer, or any other property whether in addition to, in substitution of, as a conversion of, or in exchange for, any Pledged Interests, or otherwise in respect thereof, such Pledgor shall, in each case, accept the same in trust for the benefit of the Collateral Agent and promptly deliver to the Collateral Agent a supplement to this Agreement in the form of Exhibit C attached hereto (or such other form acceptable reasonably to the Collateral Agent) duly executed by such Pledgor, and take the actions required by this subsection (a) in respect of the additional Pledged Interests which are to be pledged pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in respect of such additional Pledged Interests. Each Pledgor hereby authorizes the Collateral Agent to attach each such pledge amendment to this Agreement and agrees

that all Pledged Interests listed on any such supplement delivered to the Collateral Agent by any Pledgor shall for all purposes hereunder be considered Collateral;

(ii) Any sums paid upon or in respect of the Pledged Interests upon the liquidation or dissolution of any Issuer shall be paid over to the Collateral Agent to be held by it hereunder as additional collateral security for the Senior Indebtedness, and in case any distribution of capital shall be made on or in respect of such Pledged Interests or any property shall be distributed upon or with respect to such Pledged Interests pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject to a perfected security interest in favor of the Collateral Agent or as permitted under the Loan Agreements, be delivered to the Collateral Agent to be held by it hereunder as additional collateral security for the Senior Indebtedness. If any sums of money or property so paid or distributed in respect of any Pledged Interests shall be received by such Pledgor, such Pledgor shall, until such money or property is paid or delivered to the Collateral Agent, unless otherwise subject to a perfected security interest in favor of the Collateral Agent or as permitted under the Loan Agreements, hold such money or property in trust for the Collateral Agent, segregated from other funds of such Pledgor, as additional collateral security for the Senior Indebtedness;

(iii) Such Pledgor shall, promptly after the receipt thereof by or on behalf of a Pledgor, deliver to the Collateral Agent all certificates and instruments constituting or representing Pledged Interests. Prior to delivery to the Collateral Agent, all such certificates constituting or representing Pledged Interests shall be held in trust by such Pledgor separate from the property of such Pledgor for the benefit of the Collateral Agent pursuant hereto. All such certificates constituting or representing Pledged Interests shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, in form and substance reasonably satisfactory to the Collateral Agent;

(iv) If any of the Pledged Interests are at any time not evidenced by certificates of ownership, then each applicable Pledgor shall, to the extent permitted by applicable Law and upon the request of the Collateral Agent, cause such pledge to be recorded on the equity holder register or the books of the issuer, cause the issuer thereof to execute an Acknowledgment and Consent in the form of Exhibit A attached hereto, execute customary pledge forms or other documents necessary or reasonably requested to complete the pledge, and give the Collateral Agent the right to transfer such Pledged Interests under the terms hereof; provided that the Collateral Agent shall not exercise such transfer right unless an Event of Default exists; and

(v) Such Pledgor shall cause any Pledged Interest that is issued by an Issuer that is a corporation and that is represented by a certificate to continue to be represented by a certificate (or, if such Pledged Interest is not represented by a certificate, to be represented by a certificate if so requested by the Collateral Agent) and such Pledgor shall take the actions required by Section 4(a)(iii) above with respect to such Pledged Interests and certificates.

(vi) Such Pledgor shall not permit any Pledged Interests issued by an Issuer that is not a corporation to be (1) credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC), (2) dealt in or traded on securities exchanges or securities markets, (3) “investment company securities” within the meaning of Section 8-103 of the UCC, or (4) otherwise treated as a “security” for purposes of Article 8 of the UCC of the jurisdiction of organization of the Issuer of such Pledged Interests unless, the applicable Pledgor shall have given not less than ten (10) Business Day’s prior written notice to the Collateral Agent of such event and, concurrently with such event, the applicable Pledgor shall (A) in the case of (1) above, cause such securities account to be maintained with a securities intermediary that is reasonably acceptable to the Collateral Agent and deliver a control agreement with respect to such securities account in form and substance satisfactory to the Collateral Agent, and (B) in any other case of (2) - (4) above, (x) cause the organizational documents of such Issuer to be amended to provide that such Pledged Interest will be a “security” as defined in and governed by

Article 8 of the Uniform Commercial Code, (y) if requested by the Collateral Agent, cause the applicable Issuer to issue certificates evidencing such Pledged Interests, and (z) satisfy the requirements of Section 4(a)(iii) above with respect to such Pledged Interests and certificates.

(b) Maintenance of Collateral and Perfected Security Interest.

(i) Each Pledgor shall keep the Collateral owned by it free and clear of all liens, encumbrances, attachments, security interest pledges and charges, other than in favor of Collateral Agent under this Agreement or Permitted Liens, shall maintain the security interests of the Collateral Agent created by this Agreement as perfected security interests having at least the priority described in Section 3(b)(iv), and shall defend such security interests against the claims and demands of all Persons whomsoever (other than a holder of a Permitted Lien), subject to the rights of such Pledgor under the Loan Agreements to dispose of the Collateral, in each case, at its own cost and expense;

(ii) Except as permitted by the Loan Agreements, such Pledgor shall not sell, transfer, or otherwise dispose of the Collateral owned by it or any interest therein to any other Person. If any Collateral, or any part thereof, is sold, transferred or otherwise disposed of in violation of this Section 4(b)(ii), the security interest of the Collateral Agent shall continue in the Collateral notwithstanding such sale, transfer or other disposition, and such Pledgor will deliver any proceeds thereof to the Collateral Agent to be held as Collateral hereunder (it is acknowledged and agreed that the delivery of any such proceeds shall not be deemed a waiver of any Event of Default arising as a result of the sale, transfer or other disposal of the Collateral in violation of this Section 4(b)(ii));

(iii) If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to the Collateral Agent, duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement;

(iv) Such Pledgor shall, at such Pledgor’s own expense, promptly execute all such instruments, documents and papers, and will do all such acts as Collateral Agent may reasonably request in writing from time to time to carry into effect the provisions and intent of this Agreement including, without limitation, the providing of notification in connection with book-entry securities or general intangibles, and the providing of instructions to the issuers of uncertificated securities, and will do all such other acts as Collateral Agent may reasonably request with respect to the perfection and protection of the pledge and security interest granted herein and the assignment effected hereby; and

(v) Notwithstanding anything herein to the contrary, the Pledged Interests of any Issuer that is a corporation (i) will continue to be “securities” within the meaning of Sections 8-102(a)(15) and 8-103 of the Uniform Commercial Code as in effect in the Issuer’s state of organization, (ii) will continue to be “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC as in effect in the applicable Issuer’s state of organization), (iii) will not be credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC), and (iv) are not and will not be dealt in or traded on securities exchanges or securities markets, and the terms of the Pledged Interests are not and will not be “investment company securities” within the meaning of Section 8-103 of the UCC.

(i) Such Pledgor shall not without the prior written consent of Collateral Agent in each instance, which consent may be withheld, granted, or conditionally granted, in Collateral Agent’s reasonable discretion, vote the Collateral in which it holds an interest, in favor of or consent to any resolution or action which, as determined by the Collateral Agent in its reasonable discretion, would:


(1)	impose any restrictions upon the sale, transfer or disposition of the Collateral other than restrictions, if any, in existence on the date hereof or on the date such Pledged

Interests become subject to this Agreement (and not created in contemplation hereof), the application of which is waived to the full satisfaction of Collateral Agent as to the Collateral; or


(2)	result in the issuance of any additional interest in any Issuer, or of any class of security, which issuance would reasonably be expected to materially and adversely affect the value of the Collateral or could otherwise reasonably be expected to have a Material Adverse Effect; or


(3)	vest additional powers, privileges, preferences or priorities to any other class of interest in any Issuer to the detriment of the value of or rights accruing to the Collateral; or


(4)	result in an involuntary lien or encumbrance being placed upon or attaching to any of the Collateral which lien or encumbrance is not discharged within thirty (30) days (or such longer period as the Collateral Agent may agree in its sole discretion); or


(5)	materially and adversely affect the validity, perfection or priority of the Collateral Agent’s security interest in the Collateral or would otherwise reasonably be expected to have a Material Adverse Effect;

(ii) Such Pledgor shall, if not prohibited by this Agreement or applicable law, comply with all of its obligations under any shareholders agreement, operating agreement, partnership agreement, voting trust, proxy agreement or other agreement or understanding (each a “Pledged Collateral Agreement”, and collectively, the “Pledged Collateral Agreements”) related to the Collateral to which it is a party and shall, if not prohibited by this Agreement or applicable law, enforce all of its rights thereunder; and

(iii) Such Pledgor shall not itself or on behalf of any Issuer or the Borrower take any action or refrain from taking any action which would cause or result in a violation of any provisions of the Loan Agreements.


5.	Payments on Account of Collateral.

(a) Unless an Event of Default shall have occurred and be continuing, each Pledgor shall be permitted to receive all Distributions paid in respect of its Collateral to the extent permitted under the Loan Agreements. Upon the occurrence and during the continuance of any Event of Default (unless the applicable Secured Parties have waived such Event of Default under each Loan Agreement), subject to terms of the Loan Agreements, (i) all Distributions due on account of the Collateral, whether or not such payments are ordinary and regular cash distributions, shall be paid to Collateral Agent or, at Collateral Agent’s option, to Collateral Agent’s nominee, and (ii) all Distributions received by any Pledgor consisting of cash, checks, and other near-cash items shall be held by such Pledgor in trust for the Collateral Agent, segregated from other funds of such Pledgor, and shall, forthwith upon receipt by such Pledgor, be turned over to the Collateral Agent in the exact form received by such Pledgor (duly indorsed by such Pledgor to the Collateral Agent, if required).

(b) Each Pledgor hereby authorizes and instructs each Issuer that is the issuer of any Pledged Interests pledged by such Pledgor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Pledgor, and such Pledgor agrees that each Issuer shall be fully protected in so complying, and (ii) upon the occurrence and during the continuance of an Event of Default, pay any dividends or other payments with respect to the Collateral directly to the Collateral Agent.


6.	Voting Rights.

(a) Except during the continuance of an Event of Default, each Pledgor may exercise all Voting Rights subject to the terms of this Agreement. Upon the occurrence and during the continuance of an Event of Default, all rights of each Pledgor to exercise such Voting Rights shall cease and the Collateral Agent shall have the right to exercise, in person or by its nominees or proxies, all such Voting Rights assigned to it hereunder and the Collateral Agent shall exercise such Voting Rights in such manner as the Collateral Agent in its sole discretion shall deem to be in the best interests of the Secured Parties (subject to the terms of this Agreement and the other Loan Agreements and also provided that the Collateral Agent shall be liable for its gross negligence, bad faith and willful misconduct). Upon the occurrence and during the continuance of an Event of Default, each Pledgor shall effect the directions of the Collateral Agent in connection with any such exercise in accordance with this Agreement.

(b) In connection with the Collateral Agent’s exercise of the Voting Rights, the Pledgors shall cause each Issuer to rely on a notice from the Collateral Agent stating that an Event of Default has occurred and is continuing under any Loan Agreement, in which event no further direction from any Pledgor shall be required to effect the assignment of Voting Rights hereunder from such Pledgor to the Collateral Agent, and such Issuer shall immediately permit the Collateral Agent to exercise all of the Voting Rights in respect of the business and affairs of such Issuer. If the applicable Event of Default is no longer continuing, such Pledgor shall again automatically have all of the rights to exercise the Voting Rights and the Collateral Agent promptly shall so notify such Pledgor and the applicable Issuer in writing in confirmation thereof.

(c) Solely with respect to any action, decision, determination or election by any Issuer, Pledgor, or any of their respective partners or members that any of their membership interests or other equity interests constituting Collateral, as applicable, be, or cease to be, a “security” as defined in and governed by Article 8 of the UCC, and all other matters related to any such action, decision, determination or election (collectively, the “Article 8 Matters”), each Pledgor hereby irrevocably grants and appoints the Collateral Agent, so long as any Event of Default exists, as such Pledgor’s true and lawful proxy, for and in such Pledgor’s name, place and stead to vote the Pledged Interests, whether directly or indirectly, beneficially or of record, now owned or hereafter acquired, with respect to such Article 8 Matters. The proxy granted and appointed in this Section 6(c) shall include the right to sign such Pledgor’s name (as a member or other applicable equity holder) to any consent, certificate or other document relating to an Article 8 Matter and the Pledged Interests that applicable law may permit or require, to cause the Pledged Interests to be voted in accordance with the preceding sentence. Each Pledgor hereby represents and warrants that there are no other proxies and powers of attorney with respect to an Article 8 Matter and the Pledged Interests that such Pledgor may have granted or appointed that are still in effect. Other than as required herein for the benefit of the Collateral Agent, each Pledgor will not give a subsequent proxy or power of attorney or enter into any other voting agreement with respect to the Pledged Interests with respect to any Article 8 Matter and any attempt to do so with respect to an Article 8 Matter shall be void and of no effect. The proxies and powers granted by the each Pledgor pursuant to this Agreement are coupled with an interest and are given to secure the performance of such Pledgor’s obligations.


7.	Rights After Event of Default.

(a) Upon the occurrence and during the continuance of any Event of Default (unless Collateral Agent has waived such Event of Default by written instrument signed by a duly authorized officer of the Collateral Agent, the Collateral Agent shall have all of the rights and remedies of a secured party upon default under the UCC in addition to which the Collateral Agent may sell or otherwise dispose of the Collateral and/or enforce and collect the Collateral for application towards (but not necessarily in complete satisfaction of) the Senior Indebtedness in accordance with the provisions of the Intercreditor Agreement for further application pursuant to the Loan Agreement. Without limitation to the foregoing, upon the occurrence of during the continuance of an Event of Default, (i) the Collateral Agent shall have the right (A) to endorse, assign or otherwise transfer to or to register in the name of the Collateral Agent or any of its nominees or endorse for negotiation any or all of the Collateral, without any indication that such Collateral is subject to the security interest hereunder, (B) to receive any and all cash dividends, payments or other Proceeds paid in respect of the Collateral of each Pledgor and make application thereof in accordance with the Intercreditor Agreement, (C) to exchange uncertificated Pledged Interests for certificated Pledged Interests and to exchange certificated Pledged Interests

for certificates of larger or smaller denominations, for any purpose consistent with this Agreement (in each case to the extent such exchanges are permitted under the applicable Pledged Collateral Agreements or otherwise agreed upon by the Issuer that is the issuer of such Pledged Interests), and (D) if requested by the Collateral Agent, to be (or have its nominee or assignee be) admitted by each Issuer as a member or limited partner of such limited liability company or partnership, and (ii) each Pledgor shall, if requested by the Collateral Agent, promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all such proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request (including stock powers registering any Pledged Interests in the name of the Collateral Agent or its nominee), and the Collateral Agent or its nominee may thereafter exercise (A) all voting, corporate and other rights pertaining to any Pledged Interests at any meeting of shareholders of the relevant issuer or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to any Pledged Interests as if it were the absolute owner thereof (including, without limitation, the right to exchange at its discretion any and all of any Pledged Interests upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other organizational structure of any Issuer, or upon the exercise by a Pledgor or the Collateral Agent of any right, privilege or option pertaining to such Pledged Interests, and in connection therewith, the right to deposit and deliver any and all of such Collateral with any committee, depositary, transfer Collateral Agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to the Pledgor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

(b) [intentionally omitted]

(c) Unless any Collateral threatens to decline speedily in value, or is of a type customarily sold on a recognized market (in which event Collateral Agent shall give Pledgors such notice as may be practicable under the circumstances), Collateral Agent shall give Pledgors at least the greater of the minimum notice required by law, or ten (10) days, prior written notice of the date, time and place of any public sale thereof, or of the time after which any private sale or any other intended disposition is to be made.

(d) Each Pledgor and the Collateral Agent acknowledges that, notwithstanding anything contained herein to the contrary, any exercise by Collateral Agent of Collateral Agent’s and any Secured Party’s rights upon the occurrence and during the continuance of an Event of Default will be subject to compliance by Collateral Agent and Secured Parties with the applicable statutes, regulations, ordinances, directives and orders of any federal, state, municipal or other governmental authority. Collateral Agent in its sole discretion at any such sale or in connection with any such disposition may restrict the prospective bidders or purchasers as to their number, nature of business, investment intention, or otherwise, including, without limitation a requirement that the persons making such purchases represent and agree to the satisfaction of Collateral Agent that they are purchasing the Collateral, or some portion thereof, for their own account, for investment and not with a view towards the distribution or a sale thereof, or that they otherwise fall within some lawful exemption from registration under applicable laws.

(e) The proceeds of any collection or of any sale or disposition of any Collateral, or any portion thereof, held pursuant to this Agreement shall be applied in accordance with the Intercreditor Agreement. Borrower and any Pledgor that is a guarantor of or otherwise liable for any Senior Indebtedness shall remain liable to Collateral Agent and the Secured Parties for any deficiency remaining following such application.

(f) The Collateral Agent may buy or otherwise acquire any part or all of the Collateral at any public sale or other disposition and if any part or all of the Collateral is of a type customarily sold or otherwise disposed of in a recognized market or is of the type which is the subject of widely-distributed standard price quotations, the Collateral Agent may buy or otherwise acquire at private sale or other disposition and may make payments thereof by any means. The Collateral Agent shall apply the cash proceeds actually received from any sale or other disposition in accordance with the Intercreditor Agreement. Only after such applications, and after

payment by the Collateral Agent of any amount required by §9-608(a)(1)(C) or §9-615(a)(3) of the UCC, need the Collateral Agent account to the applicable Pledgor for any surplus.

(g) Each Pledgor and the Collateral Agent recognizes that the Collateral Agent may be unable to effect a public sale or other disposition of the Pledged Interests by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “Securities Act”), federal banking laws, and other applicable Laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers. Each Pledgor agrees that any such private sales may be at prices and other terms less favorable to the seller than if sold at public sales and that such private sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Interests for the period of time necessary to permit the Issuer of such securities to register such securities for public sale under the Securities Act, or such other federal banking or other applicable Laws, even if the applicable Issuer would agree to do so. Subject to the foregoing, the Collateral Agent agrees that any sale of the Pledged Interests shall be made in a commercially reasonable manner and in accordance with applicable securities laws, and each Pledgor agrees to use its best efforts to cause the Issuers of the Pledged Interests contemplated to be sold, to execute and deliver, and cause the directors and officers of such Issuer to execute and deliver, all at such Pledgor’s expense, all such instruments and documents, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of the Collateral Agent, advisable to exempt such Pledged Interests from registration under the provisions of the Securities Act, and to make all amendments to such instruments and documents which, in the opinion of the Collateral Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto. Each Pledgor further agrees to use its best efforts to cause such Issuer or Issuers to comply with the provisions of the securities or “Blue Sky” laws of any jurisdiction which the Collateral Agent shall designate and, if required, to cause such Issuer or Issuers to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of §11(a) of the Securities Act. In no event shall any Issuer be obligated to register any securities under the Securities Act or under any other federal or state securities laws.

(h) Each Pledgor further agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make any sales of any portion or all of the Pledged Interests pursuant to this Section 7 valid and binding and in compliance with any and all applicable Laws (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended, the rules and regulations of the Securities and Exchange Commission applicable thereto and all applicable state securities or “Blue Sky” laws), regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Pledgor’s expense. Each Pledgor further agrees that a breach of any of the covenants contained in this Section 7 will cause irreparable injury to the Collateral Agent and the Secured Parties, that the Collateral Agent and the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in this Section 7 shall be specifically enforceable against such Pledgor by the Collateral Agent and each Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants.

Actions By Collateral Agent. Each Pledgor hereby designates Collateral Agent, or any attorney, agent or other Person designated by Collateral Agent, so long as any Event Default exists, as the attorney-in-fact of such Pledgor to (a) endorse in favor of Collateral Agent any of the Collateral; (b) cause the transfer of any of the Collateral in such name as Collateral Agent may from time to time determine; (c) renew, extend or roll over any Collateral; and (d) make, demand and initiate actions to enforce any of the Collateral or rights therein. Collateral Agent may take such action with respect to the Collateral as Collateral Agent may reasonably determine to be necessary to protect and preserve its interest in the Collateral. Collateral Agent shall also have and may exercise at any time all rights, remedies, powers, privileges and discretions of each Pledgor with respect to and under the Collateral; provided, however, Collateral Agent shall have no right to exercise any Voting Rights or to foreclose or otherwise realize on any Collateral in each case except in accordance with the provisions of this Agreement. Except as otherwise provided in this Agreement, including as otherwise provided in the preceding sentence, all of the rights, remedies, powers, privileges and discretions included in this Section

8 may be exercised by Collateral Agent whether or not any of the Senior Indebtedness is then due and whether or not an Event of Default has occurred. The within designation and grant of power of attorney is coupled with an interest, is irrevocable until this Agreement is terminated by a written instrument executed by a duly authorized officer of Collateral Agent. The power of attorney shall not be affected by subsequent disability or incapacity of any Pledgor. Collateral Agent and Secured Parties shall not be liable for any act or omission to act pursuant to this Section 8, except for any act or omission to act which is in actual bad faith, willful misconduct or constituting the gross negligence of such party.

Rights and Remedies. The rights, remedies, powers, privileges and discretions of Collateral Agent and the Secured Parties hereunder (hereinafter, the “Rights and Remedies”) shall be cumulative and not exclusive of any rights, remedies, powers, privileges or discretions which it or they may otherwise have. No delay or omission by Collateral Agent or any other Secured Party in exercising or enforcing any of its rights and remedies shall operate as, or constitute, a waiver thereof. No waiver by Collateral Agent or any Secured Party of any Default or any Event of Default or of any default under any other agreement shall operate as a waiver of any other default hereunder or under any other of the Loan Agreements. No exercise of any of the Rights and Remedies and no other agreement or transaction of whatever nature entered into between Collateral Agent, any Secured Party and Pledgor at any time shall preclude any other exercise of the Rights and Remedies. No waiver by Collateral Agent or any other Secured Party of any of the Rights and Remedies on any one occasion shall be deemed a waiver on any subsequent occasion nor shall it be deemed a continuing waiver. All of the Rights and Remedies and all of Collateral Agent’s and each other Secured Party’s rights, remedies, powers, privileges and discretions under any other agreement or transaction are cumulative and not alternative or exclusive and may be exercised by Collateral Agent and the other applicable Secured Party(ies) at such time or times in such order of preference as Collateral Agent or such other Secured Party(ies) in its or their sole and absolute discretion may determine. All Rights and Remedies, insofar as the enforcement of this Agreement is concerned, may be exercised only by the Collateral Agent, and not by any Secured Party.


10.	Pledgor’s Consent and Waivers.

(a) Each Pledgor agrees that Collateral Agent may enforce its rights as against such Pledgor, the Collateral, or as against any other party liable for the Senior Indebtedness, or as against any other collateral given for any of the Senior Indebtedness, in any order or in such combination as Collateral Agent may in its sole discretion determine, and each Pledgor hereby expressly waives all suretyship defenses and defenses in the nature thereof, agrees to the release or substitution of any collateral hereunder or otherwise, and consents to each and all of the terms, provisions and conditions of the other Loan Agreements. Each Pledgor further: (a) waives presentment, demand, notice and protest with respect to the Senior Indebtedness and the Collateral; (b) waives any delay on the part of Collateral Agent or any other Secured Party; (c) assents to any indulgence or waiver which Collateral Agent or any other Secured Party may grant or give any other Person liable or obliged to Collateral Agent or any other Secured Party for or on account of the Senior Indebtedness; (d) authorizes Collateral Agent and each other Secured Party to alter the obligations of any other person liable or obligated to Collateral Agent or such Secured Party for or on account of the Senior Indebtedness without notice to or further consent from such Pledgor; (e) agrees that no release of any property securing the Senior Indebtedness shall affect the rights of Collateral Agent or any other Secured Party with respect to the Collateral hereunder which is not so released; and (f) to the fullest extent that it is not unlawful to do so, waives the right to notice and/or hearing, if it might otherwise be entitled thereto, prior to exercise of the Rights and Remedies upon and during the continuance of an Event of Default.

(b) All rights of the Collateral Agent and the other Secured Parties hereunder, the grant of a security interest in the Collateral and all obligations of each Pledgor hereunder, shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Loan Agreements or any other agreement or instrument relating to any Loan Agreement, (b) any change in time, manner or place of payment of, or in any other term of, all or any of the Senior Indebtedness, or any other amendment or waiver of or any consent to any departure from the Note or any other agreement or instrument, (c) any exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to or departure from any guarantee, for all or any of the Senior Indebtedness, or (d) any other circumstance which might otherwise constitute a

defense available to (other than the defense of indefeasible payment), or a discharge of, any Pledgor in respect of the Senior Indebtedness or in respect of this Agreement.

(c) So long as this Agreement is in effect, each Pledgor irrevocably waives any and all of its rights under those provisions of the operating or partnership agreements of each applicable Issuer that (a) prohibit, restrict, condition or otherwise affect the grant hereunder of any lien on any of the Collateral or any enforcement action which may be taken in respect of any such lien or (b) otherwise conflict with the terms of this Agreement. To the extent that this provision is inconsistent with the terms of the operating or partnership agreement of any such Issuer, such operating or partnership agreement shall be deemed to be amended or waived so as to be consistent with the terms of this Section 10. Each Pledgor of any Pledged Interests of an Issuer that is a limited liability company or a partnership hereby irrevocably consents to the Collateral Agent or its nominee becoming a member of such limited liability company or a partner of such partnership (including any management rights appurtenant thereto) upon an exercise of remedies pursuant to Section 7 hereof.

11.

Collateral Agent May Assign. Each Pledgor agrees that upon any transfer of the entirety of the Collateral Agent’s rights under this Agreement, Collateral Agent may deliver to the transferee of such rights the Collateral, who shall thereupon become vested with all powers and rights given to Collateral Agent in respect thereto, and Collateral Agent shall be thereafter forever relieved and fully discharged from any liability or responsibility in connection therewith.

12.

Limits on Collateral Agent’s Duties. Collateral Agent shall have no duty as to the collection or protection of the Collateral, or any portion thereof, or any income or distribution thereon, beyond the safe custody of such of the Collateral as may come into the actual possession of Collateral Agent, and Collateral Agent shall have no duty as to the preservation of rights against prior parties or any other rights pertaining thereto.

13.

WAIVER OF JURY TRIAL. EACH PLEDGOR, COLLATERAL AGENT AND THE SECURED PARTIES MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, COLLATERAL AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

14.

Financing Statements; Other Documents. This Agreement constitutes an authenticated record, and each Pledgor hereby authorizes the Collateral Agent to file one or more UCC-1 financing statements, continuation statements and/or other documents with respect to the Collateral, without the signature of any Pledgor, and in such filing offices as the Collateral Agent shall deem reasonably appropriate. Each Pledgor agrees to deliver any other document or instrument, which the Collateral Agent may reasonably request in connection with the administration and enforcement of this Agreement or with respect to the Collateral for the purposes of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted.

15.

Termination; Release. Upon the payment in full of the Senior Indebtedness (other than unasserted contingent indemnity or similar unasserted contingent obligations) or upon any disposition of any of the Collateral permitted by the Loan Agreements, the liens and security interests created in the Collateral granted to the Collateral Agent as provided for herein shall be automatically released without any further notice or other formality. However, such release by the Collateral Agent shall not be deemed to terminate or release each Pledgor from any obligation or liability under this Agreement, which specifically by its terms survives the payment in full of the Senior Indebtedness. Upon any release of the security provided for herein, the Collateral

Agent shall, upon request and at the Pledgors’ sole cost and expense, execute and deliver any documentation and take any such other requested action in order to demonstrate or evidence such release.


16.	Miscellaneous.

(a) Collateral Agent’s and Secured Parties’ Rights and Remedies may be exercised without resort to or regard to any other source of satisfaction of the Senior Indebtedness.

(b) All of the agreements, obligations, undertakings, representations and warranties herein made by the Pledgors shall inure to the benefit of Collateral Agent and Secured Parties and their respective successors and assigns and shall bind each Pledgor and its successors and assigns; provided that no Pledgor shall have any right to (a) assign this Agreement or any interest herein, or (b) assign any interest in the Collateral or any part thereof, or otherwise pledge, encumber or grant any option with respect to the Collateral or any part thereof, or any cash or property held by each Pledgor as Collateral under this Agreement as expressly permitted under the Loan Agreements or hereunder.

(c) Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be delivered in accordance with the provisions of §12.1 of the Credit Agreement.

(d) This Agreement and all other Loan Agreements executed in connection herewith incorporate all discussions and negotiations between Pledgors and Collateral Agent concerning the matters included herein and in such other Loan Agreements. No such discussions or negotiations shall limit, modify or otherwise affect the provisions hereof. No modification, amendment or waiver of any provisions of this Agreement or of any provision of any other agreement between the Pledgors and Collateral Agent shall be effective unless executed in writing by the party to be charged with such modification, amendment and waiver and, if such party be Collateral Agent, then by a duly authorized officer thereof. This Agreement shall be construed as a separate agreement with respect to each Pledgor and may be amended, modified, supplemented, waived or released with respect to any Pledgor without the approval of any other Pledgor and without affecting the obligations of any other Pledgor hereunder.

(e) This Agreement and all other documents in Collateral Agent’s possession which relate to the Senior Indebtedness may be reproduced by Collateral Agent by any photographic, photostatic microfilm, microcard, miniature photographic, xerographic or similar process and, with the exception of instruments constituting the Collateral, Collateral Agent may destroy the original from which any document was so reproduced. Any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business) and any enlargement, facsimile or further reproduction shall be likewise admissible in evidence.

(f) Captions in this Agreement are intended solely for convenience and shall not have any effect on the meaning or interest of any provisions hereof.

(g) Each provision hereof shall be enforceable to the fullest extent not prohibited by applicable law. The invalidity and unenforceability of any provision(s) hereof shall not impair or affect any other provision(s) hereof which are valid and enforceable.

(h) This Agreement may be executed in several counterparts, each of which when executed and delivered is an original, but all of which together shall constitute one instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart which is executed by the party against whom enforcement of such agreement is sought. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.

(i) THIS AGREEMENT, EXCEPT AS OTHERWISE PROVIDED IN HEREIN, AND ANY DISPUTES ARISING FROM THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(j) THE PLEDGORS AND THE COLLATERAL AGENT AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK (INCLUDING ANY FEDERAL COURT SITTING THEREIN). THE PLEDGORS AND THE COLLATERAL AGENT FURTHER ACCEPT, GENERALLY AND UNCONDITIONALLY, THE NON EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY RELATED APPELLATE COURT AND IRREVOCABLY (i) AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY WITH RESPECT TO THIS AGREEMENT AND (ii) WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION ANY OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH A COURT IS AN INCONVENIENT FORUM. THE PLEDGORS AND THE COLLATERAL AGENT FURTHER AGREE THAT SERVICE OF PROCESS IN ANY SUCH SUIT MAY BE MADE UPON ANY PLEDGOR BY MAIL AT THE BORROWER’S ADDRESS SPECIFIED IN SECTION 12.1 OF THE CREDIT AGREEMENT OR IN SECTION 17 OF THE NOTE PURCHASE AGREEMENT, AS APPLICABLE. IN ADDITION TO THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN, THE COLLATERAL AGENT MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL OR ASSETS OF THE PLEDGORS EXIST AND EACH PLEDGOR CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH PLEDGOR BY MAIL AT THE BORROWER’S ADDRESS SPECIFIED IN SECTION 12.1 OF THE CREDIT AGREEMENT OR IN SECTION 17 OF THE NOTE PURCHASE AGREEMENT, AS APPLICABLE. EACH PLEDGOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING CHOICE OF NEW YORK LAW WAS A MATERIAL INDUCEMENT TO THE COLLATERAL AGENT ENTERING INTO THIS AGREEMENT.

(k) The initial Pledgors hereunder shall be each of the signatories hereto, which are listed on Schedule I attached hereto. From time to time after the date hereof, additional Subsidiaries of the Borrower may become parties hereto as additional Pledgors (each an “Additional Pledgor”) by executing a joinder agreement in the form of Exhibit B attached hereto or any other form as Collateral Agent may approve (the form attached as Exhibit B hereto or any other such form approved by Collateral Agent, a “Joinder Agreement”). Upon delivery of any such Joinder Agreement to Collateral Agent, notice of which is hereby waived by the Pledgors, each such Additional Pledgor shall be a Pledgor hereunder and shall be a party hereto as if such Additional Pledgor were an original signatory hereof and any such Joinder Agreement may amend or supplement Schedule II and/or Schedule III attached hereto to reflect such Additional Pledgor and any Collateral owned by it without the consent of any other Pledgor. Each Pledgor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Pledgor hereunder, or by any election by Collateral Agent not to cause any Subsidiary of Borrower to become an Additional Pledgor hereunder. This Agreement shall be fully effective as to any Pledgor that is or becomes a party hereto regardless of whether any other person becomes or fails to become or ceases to be a Pledgor hereunder.

[Signature Pages Follow.]

This Pledge and Security Agreement has been executed and delivered as an instrument under seal as of the date first written above.



	PLEDGORS:
	[___], a [___], as a Pledgor By:____________________________ Name:____________________________ Title:____________________________
	[___], a [___], as a Pledgor By:____________________________ Name:____________________________ Title:____________________________

COLLATERAL AGENT:

KEYBANK NATIONAL ASSOCIATION,

as Collateral Agent

By: ___________________________

Name:

Title:

SCHEDULE I

Initial Pledgors

SCHEDULE II

Pledgors and Issuers



Pledgor	Issuer	Entity Form	Jurisdiction of Organization	Percentage Owned	Certificate Number (if applicable)

SCHEDULE III

Filings and other Actions


1.	[UCC-1 filings to be filed in the name of each Pledgor with the Secretary of State of its state of organization describing the Collateral as set forth herein.]


2.	[Delivery to the Collateral Agent of the certificates, if any, issued to the Pledgors as set forth in Schedule II hereto and representing 100% of the Equity Interests in each such Issuer pledged hereunder, together with an undated instrument of transfer or assignment covering any such certificates duly executed in blank by the applicable Pledgor.]

EXHIBIT A

ACKNOWLEDGMENT AND CONSENT

The undersigned, each an Issuer as referred to in the Pledge and Security Agreement (the “Agreement”) of even date herewith between the Collateral Agent and the owner (the “Pledgor”) of each Issuer (the “Pledgee”), hereby acknowledge receipt of a copy thereof, consent to the pledge of the interests provided for therein, have noted the same on the books and records of each said Issuer, and agree to be bound thereby and to comply with the terms thereof insofar as such terms are applicable to it. Capitalized terms used herein and not otherwise defined herein shall have the meaning set forth in the Agreement, or if no meaning is set forth in the Agreement, such terms shall have the meaning set forth in the Intercreditor Agreement.

Each Issuer also agrees that until receipt of written notice from the Collateral Agent that the Agreement has been terminated (which notice the Collateral Agent agrees to provide, if such is the case, which notice may be provided to the Borrower on behalf of all Pledgors and Issuers), it shall: (a) upon receipt of notice from the Collateral Agent that an Event of Default has occurred and is continuing, pay to the Collateral Agent all amounts then due and thereafter as they become due to the Pledgor in respect of the Collateral; (b) upon the receipt of notice from the Collateral Agent that the Collateral Agent (or any successor or assign of the Collateral Agent) has become a member or limited partner (as the case may be) as the result of the exercise by the Collateral Agent of the Collateral Agent’s rights and remedies under the Pledge, admit and recognize the Collateral Agent (or any such successor and assign of the Collateral Agent) as a member or limited partner (as provided for in the organizational documents of each Issuer and after signing a joinder to such organizational documents reasonably acceptable to the Collateral Agent), with the full right to exercise all of the rights of a member, general partner or a limited partner as the case may be; (c) upon receipt of notice from the Collateral Agent that an Event of Default has occurred and is continuing, to the extent provided in the Agreement, comply with the instructions of the Collateral Agent in connection with the exercise of the Collateral Agent’s rights and remedies as set forth in the Agreement, without any further consent from the Borrower or any other Person in respect of the Pledged Collateral.

Each Issuer represents and warrants to the Collateral Agent that, as of the date hereof, (i) the Pledgor listed in Schedule II to the Agreement is the registered owner of the percentage of such Issuer’s Pledged Interests, and possesses the percentage of the economic, management and voting rights in such Issuer, in each case as set forth on such Schedule II; (ii) such Issuer has no knowledge of any Lien or other security interest in the Pledged Interest (other than the Collateral Agent’s and any Permitted Liens) that has not been terminated on or prior to the date hereof; and (iii) the registered pledgee of the Pledged Interests on the books of such Issuer is KeyBank National Association, as Collateral Agent, and there is no other pledge currently registered on the books and records of such Issuer with respect to the Pledged Interests.

Executed and delivered within the State of New York as an instrument under seal as of [_________], 20__.

[Remainder of Page Intentionally Left Blank]

ISSUERS:

[___]

By: [___]

By: __________________________________

Name: __________________________________

Title: __________________________________

[___]

By: [___]

By: __________________________________

Name: __________________________________

Title: __________________________________

EXHIBIT B

FORM OF PLEDGE JOINDER AGREEMENT

[Date, 20__]

Ladies and Gentlemen:

Reference is made to the Pledge and Security Agreement, dated as of [_______] (as amended, restated, supplemented, or otherwise modified from time to time, the “Pledge Agreement”), by and among [______________], a [___________], [_________], a [__________], and certain of [its][their] Subsidiaries (each a “Pledgor” and collectively, the “Pledgors”), and KeyBank National Association, as Collateral Agent (in such capacity, the “Collateral Agent”) for its own benefit and the benefit of the other Secured Parties. All capitalized terms used but not defined herein shall have the meanings set forth in the Pledge Agreement.

This Pledge Joinder Agreement (this “Joinder Agreement”) supplements the Pledge Agreement and is delivered by the undersigned, [_________] ([the][each, a] “Additional Pledgor”) and [___________] ([the][each, a] “New Issuer”). As security for the full and punctual payment and performance of the Senior Indebtedness, [the][each] Additional Pledgor hereby grants and pledges to Collateral Agent, for the benefit of the Secured Parties, a continuing lien on, and security interest in, all of its right, title, and interest in and to the Equity Interests set forth on Schedule I hereto and all other Collateral associated with such Pledged Interests, and agrees that Schedule I hereto shall supplement the existing Schedule II to the Pledge Agreement.

By executing and delivering this Joinder Agreement, [the][each] Additional Pledgor, as provided in Section 16(k) of the Pledge Agreement, hereby becomes a party to the Pledge Agreement as a Pledgor thereunder with the same force and effect as if originally named therein as a Pledgor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Pledgor thereunder.

Effective as of the date of this Joinder Agreement, [the][each] Additional Pledgor confirms its acceptance of, and consents to, all representations and warranties, covenants, and other terms and provisions of the Pledge Agreement. [The][Each] Additional Pledgor hereby represents and warrants that each of the representations and warranties contained in the Pledge Agreement is true and correct on and as the date hereof as if made on and as of such date, except to the extent any such representation or warranty (including any such representation or warranty contained in the Loan Agreements) was expressly made as of an earlier date, in which case such representation or warranty was true and correct as of such earlier date.

By executing and delivering this Joinder Agreement, [the][each] New Issuer also agrees that until receipt of written notice from the Collateral Agent that the Pledge Agreement has been terminated, it shall: (a) upon receipt of notice from the Collateral Agent that an Event of Default has occurred and is continuing, pay to the Collateral Agent all amounts then due and thereafter as they become due to the applicable Pledgor with respect to the Collateral; (b) upon the receipt of notice from the Collateral Agent that the Collateral Agent (or any successor or assign of the Collateral Agent) has become a member or limited partner (as the case may be) as the result of the exercise by the Collateral Agent of the Collateral Agent’s rights and remedies under the Pledge Agreement, admit and recognize the Collateral Agent (or any such successor and assign of the Collateral Agent) as a member or limited partner (as provided for the organizational documents of each Issuer), with the full right to exercise all of the rights of a member, general partner or a limited partner as the case may be; (c) upon receipt of notice from the Collateral Agent that an Event of Default as defined in the Pledge Agreement has occurred and is continuing, to the extent provided in the Pledge Agreement, comply with the instructions of the Collateral Agent in connection with the exercise of the Collateral Agent’s rights and remedies as set forth in the Pledge Agreement, without any further consent from the Borrower or any other Person in respect of the Pledged Collateral.

Issuer, in each case as set forth on such Schedule I; (ii) such New Issuer has no knowledge of any Lien or other security interest in such Pledged Interest (other than the Collateral Agent’s and any Permitted Liens) that has not been terminated on or prior to the date hereof; and (iii) the registered pledgee of such Pledged Interests on the books of such New Issuer is KeyBank National Association, as Collateral Agent, and there is no other pledge currently registered on the books and records of such New Issuer with respect to such Pledged Interests.

This Joinder Agreement shall constitute a Loan Agreement.

THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

[Signature Pages Follow]

IN WITNESS WHEREOF, the Additional Pledgor and the New Issuer have caused this Joinder Agreement to be executed and delivered by its duly authorized officer as of the date first above written.

[ADDITIONAL PLEDGOR]:

By: ____________________________

Name: ____________________________

Title: ____________________________

[NEW ISSUER]:

By: ____________________________

Name: ____________________________

Title: ____________________________

AGREED TO AND ACCEPTED:

KEYBANK, NATIONAL ASSOCIATION,

as Collateral Agent

By: ____________________________

Name: ____________________________

Title: ____________________________

[Schedules to be attached]

SCHEDULE I



Pledgor	Issuer	Entity Form	Jurisdiction of Organization	Percentage Owned	Certificate Number (if applicable)

EXHIBIT C

FORM OF PLEDGE SUPPLEMENT

This Pledge Supplement (this “Supplement”), dated as of [____], 20__, is delivered pursuant to Section 4(a)(i) of that certain Pledge and Security Agreement dated as of ____________________, 20__ (as amended, restated, supplemented, or otherwise modified from time to time, the “Pledge Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Pledge Agreement), by and among [_________], a [____________], [___________], a [__________], and certain of [its][their] Subsidiaries (each a “Pledgor”, and collectively, the “Pledgors”), each with a business address at [________________________], in favor of KEYBANK, NATIONAL ASSOCIATION, having an office at 225 Franklin Street, Boston, Massachusetts 02110, in its capacity as Collateral Agent for the Secured Parties, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the “Collateral Agent”). [The][Each] undersigned Pledgor hereby agrees that this Pledge Supplement may be attached to the Pledge Agreement and that the Equity Interests listed on this Supplement shall be deemed to be and shall become Pledged Interests under the Pledge Agreement and part of the Collateral and shall secure all Senior Indebtedness.

By executing and delivering this Joinder, [the][each of the] undersigned [___________] ([the][each, a] “New Issuer”) agrees that until receipt of written notice from the Collateral Agent that the Pledge Agreement has been terminated, it shall: (a) upon receipt of notice from the Collateral Agent that an Event of Default as defined in the Pledge Agreement has occurred and is continuing, pay to the Collateral Agent all amounts then due and thereafter as they become due to the applicable Pledgor; (b) upon the receipt of notice from the Collateral Agent that the Collateral Agent (or any successor or assign of the Collateral Agent) has become a member or limited partner (as the case may be) as the result of the exercise by the Collateral Agent of the Collateral Agent’s rights and remedies under the Pledge Agreement, admit and recognize the Collateral Agent (or any such successor and assign of the Collateral Agent) as a member or limited partner (as provided for the organizational documents of each Issuer), with the full right to exercise all of the rights of a member, general partner or a limited partner as the case may be; (c) upon receipt of notice from the Collateral Agent that an Event of Default as defined in the Pledge Agreement has occurred, to the extent provided in the Pledge Agreement, comply with the instructions of the Collateral Agent in connection with the exercise of the Collateral Agent’s rights and remedies as set forth in the Pledge Agreement, without any further consent from the Borrower or any other Person in respect of the Pledged Collateral.

[The][Each] New Issuer represents and warrants to the Collateral Agent that, as of the date hereof, (i) the Pledgor listed in Schedule I to this Supplement is the registered owner of the percentage of the limited liability company interests or partnership interests of, and possesses the percentage of the economic, management and voting rights in, such New Issuer set forth on such Schedule I; (ii) such New Issuer has no knowledge of any Lien or other security interest in such Pledged Interest (other than the Collateral Agent’s) that has not been terminated on or prior to the date hereof; and (iii) the registered pledgee of such Pledged Interests on the books of such New Issuer is KeyBank National Association, as Collateral Agent, and there is no other pledge currently registered on the books and records of such New Issuer with respect to such Pledged Interests.

[_________], as Pledgor

By: _______________

Name: _______________

Title: _______________

[_________], as New Issuer

By: _______________

Name: _______________

Title: _______________

AGREED TO AND ACCEPTED:

KEYBANK, NATIONAL ASSOCIATION,

as Collateral Agent

By: _______________

Name:

Title:

SCHEDULE I

PLEDGED INTERESTS



Pledgor	Issuer	Corporate Form	Jurisdiction of Organization	Percentage Owned	Certificate Number

EXHIBIT B

FORM OF INTERCREDITOR AGREEMENT

INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

This Intercreditor and Collateral Agency Agreement (this “Agreement”), dated as of this _____ day of _________ 20__, is by and among the Bank Agent, the Collateral Agent, the Noteholders listed on Exhibit A attached hereto (the “Initial Noteholders”), and each of the other Noteholders and Persons that become parties hereto pursuant to Section 20 hereof. All terms used herein which are defined in Section 1 hereof or in the text of any other Section hereof shall have the meanings given therein.

WITNESSETH:

WHEREAS, pursuant to the Credit Agreement the Banks have heretofore made and the Banks may from time to time hereafter make Term Loans and Revolving Loans to the Borrower and issue Letters of Credit for the account of the Borrower; and

WHEREAS, pursuant to the Note Agreement the Initial Noteholders currently hold on the date hereof certain Senior Notes of the Borrower; and

WHEREAS, pursuant to the Guaranty Agreements the Guarantors are concurrently herewith guaranteeing or have guaranteed the Senior Indebtedness; and

WHEREAS, pursuant to the Collateral Documents the Pledgors are concurrently herewith granting to the Collateral Agent liens upon and security interests in the Collateral to secure the Senior Indebtedness; and

WHEREAS, the Initial Noteholders and the Bank Agent desire to appoint KeyBank National Association as their agent with respect to Collateral and the Collateral Documents; and

WHEREAS, the Initial Noteholders, the Bank Agent and the Collateral Agent desire to agree upon the priorities for the application of any proceeds from the Collateral and the Guaranty Agreements and to agree upon various other matters with respect to their respective agreements with the Loan Parties and their rights thereunder.

NOW, THEREFORE, for the above reasons, in consideration of the mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Definitions.

For the purposes of this Agreement, the following terms shall have the meanings specified with respect thereto below. Any plural term that is used herein in the singular shall be taken to mean each entity or item of the defined class and any singular term that is used herein in the plural shall be taken to mean all of the entities or items of the defined class, collectively.

“Additional Bank Obligations” shall mean any indebtedness, liabilities and other obligations of any Loan Party owed to the Bank Agent or the Banks at any time arising under, by virtue of or pursuant to the Credit Agreement in connection with any exercise of the “Increase Option” as defined in the Credit Agreement, including any amendments, modifications, agreements or instruments that act to increase the amount of credit available as a result of any such exercise.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such first Person. A Person shall be deemed to control a corporation or other entity if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of voting securities, by contract or otherwise.

“Bankruptcy Proceeding” shall mean any proceeding under any bankruptcy, reorganization, compromise, arrangement, insolvency, receivership, readjustment of debt, dissolution or liquidation or similar law or for the appointment of a receiver.

“Banks” shall mean KeyBank National Association, JPMorgan Chase Bank, N.A., Royal Bank of Canada, Bank of America, N.A., Citibank, N.A., Barclays Bank PLC, UMB Bank, N.A., Bank of the West, a California Banking Corporation, Mega International Commercial Bank, Co., Ltd, Silicon Valley Branch, Bank of Blue Valley, Bank of Taiwan, Los Angeles Branch, BOKF N.A., Hua Nan Commercial Bank, Los Angeles Branch, Stifel Bank & Trust, U.S. Bank National Association, First Commercial Bank, Ltd., a Republic of China Bank acting through its Los Angeles Branch, Citizens Bank, National Association, SunTrust Bank, E. Sun Commercial Bank Limited, Los Angeles Branch and Raymond James Bank, N.A., and their respective successors and assigns, including any Person subsequently becoming a party to the Credit Agreement as a “Lender” thereunder.

“Bank Agent” shall mean KeyBank National Association, in its capacity as the agent for the Banks under the Credit Agreement, and its successors and assigns in that capacity.

“Borrower” shall mean EPR Properties, a Maryland real estate investment trust.

“Collateral” shall mean all property and assets, and interests in property and assets, upon or in which any Loan Party has granted a lien or security interest to the Collateral Agent to secure the Senior Indebtedness, all balances held by the Collateral Agent, the Bank Agent or any Senior Lender for the account of any Loan Party and any other property held or owing by the Collateral Agent, the Bank Agent or any Senior Lender to or for the credit or for the account of any Loan Party with respect to which the Collateral Agent, the Bank Agent or any Senior Lender has rights to setoff or appropriate or a common law lien.

“Collateral Agent” shall mean KeyBank National Association, in its capacity as agent for the Banks, the Bank Agent and the Noteholders pursuant to this Agreement, together with any successor or replacement agent which may be appointed pursuant to this Agreement.

“Collateral Agent Expenses” shall mean, without limitation, all costs and expenses incurred by the Collateral Agent in connection with the performance of its duties under this Agreement or any Collateral Document, including the realization upon or protection of the Collateral or enforcing or defending any lien upon or security interest in the Collateral or any other action taken in accordance with the provisions of this Agreement or any Collateral Document, expenses incurred for legal counsel in connection with the foregoing, and any other costs, expenses or liabilities incurred by the Collateral Agent for which the Collateral Agent is entitled to be reimbursed or indemnified by a Loan Party pursuant to this Agreement or any Collateral Document or a Guaranty Agreement or by the Senior Lenders pursuant to this Agreement.

“Collateral Agent Obligations” shall mean all obligations of any Loan Party to pay, reimburse or indemnify the Collateral Agent for any Collateral Agent Expenses.

“Collateral Documents” shall mean the Pledge Agreements and each other agreement, document or instrument in effect on the date hereof or executed by any Loan Party in accordance with the terms of the Credit Agreement or the Note Agreement after the date hereof under which such Loan Party has granted a lien upon or security interest in any property or assets to the Collateral Agent to secure all or any part of the Senior Indebtedness, all financing statements, certificates, documents and instruments relating thereto or executed or provided in connection therewith, each as amended, restated, supplemented or otherwise modified from time to time.

“Commitments” of any Bank shall mean the “Commitment” of such Bank as defined in the Credit Agreement.

Amendment No. 1 to Second Amended, Restated and Consolidated Credit Agreement dated as of June __, 2020 and as it may be further amended, restated, supplemented or otherwise modified from time to time.

“De Minimis Threshold” shall mean, at any time, an aggregate outstanding principal amount of Senior Indebtedness (including, unless an Event of Default has occurred and is continuing, any undrawn Commitments) less than 10% of the aggregate outstanding principal amount of Senior Indebtedness at such time.

“Enforcement” shall mean the occurrence of any of the following: (a) the Bank Agent or any Senior Lender makes demand for payment prior to the scheduled payment date, if any, of or accelerate the time for payment of any Revolving Loan, any Revolving Note, any Term Loan or any Term Note or any Senior Note, or calls for funding of any risk participation in or collateral for any Letter of Credit prior to being presented with a draft drawn thereunder (or, in the event the draft is a time draft, prior to its due date), (b) any Bank terminates its commitment to make Revolving Loans, make Term Loans or issue or participate in Letters of Credit pursuant to the Credit Agreement (but not including the expiration of such commitment on the relevant Termination Date), (c) the Bank Agent or any Senior Lender commences the judicial enforcement of any rights or remedies under or with respect to the Credit Agreement, any Revolving Note, any Term Note, the Note Agreement, any Senior Note, any Senior Indebtedness or any Guaranty Agreement, or sets off against, freezes or otherwise appropriates any balances held by it for the account of any Loan Party or any other property at any time held or owing by it to or for the credit or for the account of any Loan Party, (d) the Collateral Agent commences the judicial enforcement of any rights or remedies under any Collateral Document (other than an action solely for the purpose of establishing or defending the lien or security interest intended to be created by any Collateral Document upon or in any Collateral as against or from claims of third parties on or in such Collateral), or sets off against, freezes or otherwise appropriates any balances held by it for the account of any Loan Party or any other property at any time held or owing by it to or for the credit or for the account of any Loan Party or otherwise takes any action (whether judicial or non-judicial) to realize upon the Collateral, or (e) the commencement by, against or with respect to any Loan Party of any Bankruptcy Proceeding for such Loan Party or its assets.

“Event of Default” shall mean an “Event of Default,” as defined in the Credit Agreement, or an “Event of Default,” as defined in the Note Agreement.

“Excess Leverage Fee” shall mean the “Excess Leverage Fee” as defined in the Note Agreement.

“Guarantors” shall mean each subsidiary of the Borrower that has executed or joined a Guaranty Agreement in accordance with the provisions of Section 9.9(a) of the Note Agreement and/or Section 7.15(b) of the Credit Agreement.

“Guaranty Agreements” shall mean each Guaranty Agreement made or joined to by a subsidiary of the Borrower in favor of the Noteholders or the Banks in accordance with the provisions of Section 9.9(a) of the Note Agreement and/or Section 7.15(b) of the Credit Agreement, each as amended, restated, supplemented or otherwise modified from time to time.

“Indemnitee” shall have the meaning given in Section 2(j) hereof.

“Insolvent Entity” shall mean any entity that has (a) become or is insolvent or has a parent company that has become or is insolvent or (b) become the subject of a Bankruptcy Proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a Bankruptcy Proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.

“Letters of Credit” shall mean the letters of credit issued under Section 2.2 of the Credit Agreement.

“Letter of Credit Collateral Obligations” shall mean all of the obligations of the Borrower under Sections 2.2(b) and 2.11 of the Credit Agreement to deposit cash with the Collateral Agent with respect to Outstanding Letters of Credit Exposure.

“Loan Parties” shall mean the Borrower, the Guarantors and the Pledgors.

“Loan and Reimbursement Obligations” shall mean the aggregate outstanding principal amount of the Revolving Notes, the aggregate outstanding principal amount of the Term Notes and the aggregate accrued and unpaid reimbursement obligations due the Banks with respect to Letters of Credit, and, without duplication, the aggregate outstanding principal amount of any Additional Bank Obligations.

“Make-Whole Amount” shall mean the “Make-Whole Amount,” as defined in the Note Agreement.

“Note Agreement” shall mean the Note Purchase Agreement dated as of August 1, 2016 originally between the Borrower and the purchasers listed on Schedule A thereto, as amended by that certain First Amendment dated as of September 27, 2017 and that certain Second Amendment dated as of June __, 2020, and as may be further amended, restated, supplemented or otherwise modified from time to time.

“Noteholders” shall mean the holders of the Senior Notes from time to time.

“Outstanding Letters of Credit Exposure” at any time shall mean the undrawn face amount of all outstanding Letters of Credit and the aggregate accrued and unpaid reimbursement obligations under Letters of Credit at such time.

“Person” shall mean and include an individual, a partnership, a joint venture, a corporation, a trust, a limited liability company, an unincorporated organization and a government or any department or agency thereof.

“Pledge Agreements” shall mean each Pledge Agreement made or joined to by a subsidiary of the Borrower in favor of the Collateral Agent in accordance with Section 9.11 of the Note Agreement and/or Section 7.16 of the Credit Agreement, each as amended, restated, supplemented or otherwise modified from time to time.

“Pledgor” shall mean each subsidiary of the Borrower that has executed or joined a Pledge Agreement in accordance with the provisions of Section 9.11 of the Note Agreement and Section 7.16 of the Credit Agreement.

“Pro Rata Expenses Share” with respect to any Senior Lender shall mean (a) at any time before the time the commitments of the Banks to make Revolving Loans and Term Loans under the Credit Agreement have been terminated, the ratio of (i) the amount of such Senior Lender’s “Commitment” (as defined in the Credit Agreement) at such time, if such Senior Lender is a Bank, or the aggregate outstanding principal amount of the Senior Notes held by such Senior Lender at such time, if such Senior Lender is a Noteholder, to (ii) the total of the Commitments (as defined in the Credit Agreement) and the aggregate outstanding principal amount of all of the Senior Notes at such time, or (b) at any time on and after the time the commitments of the Banks to make Revolving Loans and Term Loans under the Credit Agreement have been terminated, the ratio of (i) aggregate amount of the Senior Indebtedness owed to such Senior Lender at such time, to (ii) the total amount of all outstanding Senior Indebtedness at such time.

“Required Holders” shall mean the “Required Holders,” as defined in the Note Agreement.

“Required Lenders” shall mean the “Required Lenders,” as defined in the Credit Agreement.

“Required Senior Lenders” at any time shall mean both (a) the Required Lenders, and (b) the Required Holders; provided, however, if at any date of determination the aggregate outstanding principal amount of Senior Indebtedness held by the Banks or the Noteholders is less than the De Minimis Threshold, then the Required Senior Lenders shall be determined without giving effect to the class of Senior Lenders holding Senior Indebtedness of less than the De Minimis Threshold.

“Revolving Loan” shall mean a “Revolving Credit Loan,” as defined in the Credit Agreement.

“Revolving Note” shall mean a “Revolving Credit Note,” as defined in the Credit Agreement.

“Senior Indebtedness” shall mean the Collateral Agent Obligations, the Loan and Reimbursement Obligations, the Letter of Credit Collateral Obligations, the aggregate outstanding principal amount of the Senior Notes, and all of the other present or future indebtedness, liabilities and obligations of any Loan Party now or hereafter owed to any or all of the Collateral Agent, the Bank Agent, the Banks or the Noteholders, evidenced by or arising under, by virtue of or pursuant to this Agreement, the Credit Agreement, the Note Agreement, the Revolving Notes, the Term Notes, the Senior Notes, the Collateral Documents or the Guaranty Agreements, whether such indebtedness, liabilities and obligations are direct or indirect, joint, several or joint and several, or now exist or hereafter arise, and all renewals and extensions thereof, including, without limitation, all interest and LIBOR breakage amounts due on the Revolving Loans and the Senior Notes, any Excess Leverage Fee and any Make-Whole Amount. The term “Senior Indebtedness” shall include all of the foregoing indebtedness, liabilities and obligations whether or not allowed as a claim in any Bankruptcy Proceeding.

“Senior Lenders” shall mean the Banks and the Noteholders.

“Senior Notes” shall mean the Borrower’s (a) 4.35% Series A Guaranteed Senior Notes due August 22, 2024 and (b) 4.56% Series B Guaranteed Senior Notes due August 22, 2026, in each case, issued pursuant to the Note Agreement.

“Sharing Event” shall mean (a) an Enforcement, (b) the occurrence of any Specified Event of Default, or (c) any refusal by the Bank Agent or any Bank to make any Revolving Loan or Term Loan or issue any Letter of Credit requested by the Borrower (irrespective of whether the conditions precedent thereto specified in the Credit Agreement have been satisfied) where such Revolving Loan, such Term Loan or issuance would not cause the Borrower to exceed the limitations set forth in Section 2.12 of the Credit Agreement.

“Specified Event of Default” shall mean (a) any default in any payment of any Senior Indebtedness when due, (b) an Event of Default described in Section 10.1(c), 10.1(d), 10.1(h), 10.1(i) or 10.1(j) of the Credit Agreement, or (c) an Event of Default described in Section 11(c), 11(g), 11(h) or 11(i) of the Note Agreement.

“Supermajority Lenders” shall mean, as of any date of determination, Senior Lenders that hold, in the aggregate, in excess of 72.5% of the sum of (a) the Loan and Reimbursement Obligations as of such date and (b) the aggregate principal amount of the Notes outstanding as of such date.

“Term Loan” shall mean a “Term Loan,” as defined in the Credit Agreement.

“Term Note” shall mean a “Term Loan Note,” as defined in the Credit Agreement.

“Termination Date” shall mean the “Termination Date”, as defined in the Credit Agreement.

2. Appointment of KeyBank National Association as Collateral Agent for the Senior Lenders and the Bank Agent.

(a) Appointment of Collateral Agent. Subject in all respects to the terms and provisions of this Agreement, the Banks, the Noteholders and the Bank Agent hereby appoint KeyBank National Association to act as agent for the benefit of the Banks, the Noteholders and the Bank Agent with respect to the liens upon and the security interests in the Collateral and the rights and remedies granted under and pursuant to the Collateral Documents, and KeyBank National Association hereby accepts such appointment and agrees to act as such agent. The appointment of the Collateral Agent pursuant to this Agreement shall be effective with respect to all financing statements filed in any filing office in favor of the Bank Agent or any Senior Lender with respect to any Loan Party prior to the date of this Agreement on and as of the date such financing statements were filed. The agency created hereby shall in no way impair or affect any of the rights and powers of, or impart any duties or obligations upon, KeyBank National Association in its individual capacity as a Bank or as Bank Agent. To the extent legally necessary to enable the Collateral Agent to enforce or otherwise foreclose and realize upon any of the liens or security interests in the Collateral in any legal proceeding which the Collateral Agent either commences or joins as a party in accordance with the terms hereof, the

Bank Agent and each of the Senior Lenders agree to join as a party in such proceeding and take such action therein concurrently to enforce and obtain a judgment for the payment of the Senior Indebtedness held by it.

(b) Duties of Collateral Agent. Subject to the Collateral Agent having been directed to take such action in accordance with the terms of this Agreement, the Bank Agent and each Senior Lender hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of the Collateral Documents and any other instruments, documents and agreements referred to therein and to exercise such powers thereunder as are specifically delegated to the Collateral Agent by the terms thereof and such other powers as are reasonably incidental thereto. Subject to the provisions of Section 13 hereof, the Collateral Agent is hereby irrevocably authorized to take all actions on behalf of the Bank Agent and the Senior Lenders to enforce the rights and remedies of the Collateral Agent, the Bank Agent and the Senior Lenders provided for in the Collateral Documents or by applicable law with respect to the liens upon and security interests in the Collateral granted to secure the Senior Indebtedness; provided, however, that, notwithstanding any provision to the contrary in any Collateral Documents, (i) the Collateral Agent shall act solely at and in accordance with the written direction of the Required Senior Lenders, or, if the Collateral Agent shall have received inconsistent written directions from the Required Lenders and the Required Holders or written direction from only one such group and the Collateral Agent shall have notified the Banks and the Noteholders to such effect but shall not have received written direction from the Required Senior Lenders within 30 days of such notice, the Supermajority Lenders, (ii) the Collateral Agent shall not, without the written consent of the Required Lenders and the Required Holders, release or terminate by affirmative action or consent any lien upon or security interest in any Collateral granted under any Collateral Documents (except (x) upon dispositions of Collateral by a Loan Party as permitted in accordance with the terms of the Credit Agreement and the Note Agreement prior to the occurrence of an Event of Default, and (y) upon disposition of such Collateral after an Event of Default pursuant to direction given under clause (i) hereof), and (iii) the Collateral Agent shall not accept any Senior Indebtedness in whole or partial consideration for the disposition of any Collateral without the written consent of the Required Lenders and the Required Holders. The Collateral Agent agrees to make such demands and give such notices under the Collateral Documents as may be requested by, and to take such action to enforce the Collateral Documents and to foreclose upon, collect and dispose of the Collateral or any portion thereof as may be directed by, the Required Senior Lenders, or, if the Collateral Agent shall have received inconsistent written requests or directions from the Required Lenders and the Required Holders or a written request or direction from only one such group and the Collateral Agent shall have notified the Banks and the Noteholders to such effect but has not received a written request or direction from the Required Senior Lenders within 30 days of such notice, the Supermajority Lenders; provided, however, that the Collateral Agent shall not be required to take any action that is contrary to law or the terms of the Collateral Documents or this Agreement. Once a direction to take any action has been given by the Required Senior Lenders or the Supermajority Lenders, as applicable, to the Collateral Agent, and subject to any other directions which may be given from time to time by the Required Senior Lenders or the Supermajority Lenders, as applicable, decisions regarding the manner in which any such action is to be implemented and conducted (with the exception of any decision to settle, compromise or dismiss any legal proceeding, with or without prejudice) shall be made by the Collateral Agent, with the assistance and upon the advice of its counsel. Notwithstanding the provisions of the preceding sentence, any and all decisions to settle, compromise or dismiss any legal proceeding, with or without prejudice, which implements, approves or results in or has the effect of causing any release, change or occurrence, where such release, change or occurrence otherwise would require unanimous approval of all of the Senior Lenders pursuant to the terms of this Agreement, also shall require the unanimous approval of all of the Senior Lenders.

(c) Requesting Instructions. The Collateral Agent may at any time request directions from the Senior Lenders as to any course of action or other matter relating to the performance of its duties under this Agreement and the Collateral Documents and the Senior Lenders shall respond to such request in a reasonably prompt manner.

(d) Emergency Actions. If the Collateral Agent has asked the Senior Lenders for instructions following the receipt of any notice of an Event of Default and if the Required Senior Lenders have not responded to such request within 30 days, the Collateral Agent shall be authorized to take such actions with regard to such Event of Default which the Collateral Agent, in good faith, believes to be reasonably required to protect the Collateral from damage or destruction or diminution in value; provided, however, that once instructions have been received from the Required Senior Lenders or, if the Collateral Agent shall have received inconsistent instructions from the Required Lenders and the Required Holders or instructions from only one such group and the Collateral Agent shall have notified

the Banks and the Noteholders to such effect but shall not have received instructions from the Required Senior Lenders within 30 days of such notice, the Supermajority Lenders, the actions of the Collateral Agent shall be governed thereby and the Collateral Agent shall not take any further action which would be contrary thereto.

(e) Collateral Document Amendments. An amendment, supplement, modification, restatement or waiver of any provision of any Collateral Document, any consent to any departure by any Loan Party therefrom, or the execution or acceptance by the Collateral Agent of any Collateral Document not contemplated by the terms of the Credit Agreement or the Note Agreement shall be effective if, and only if, consented to in writing by the Required Senior Lenders; provided, however, that (i) no such amendment, supplement, modification, restatement, waiver, consent or such Collateral Document not in effect on the date hereof which imposes any additional responsibilities upon the Collateral Agent shall be effective without the written consent of the Collateral Agent, (ii) no such amendment, supplement, modification, waiver or consent shall release any Collateral from the lien or security interest created by any Collateral Document not subject to any exception in Section 2(b)(ii) hereof or narrow the scope of the property or assets in which a lien or security interest is granted pursuant to any Collateral Document or change the description of the obligations secured thereby without the written consent of all Senior Lenders, and (iii) no such consent of the Required Senior Lenders shall be required for the execution and acceptance of any additional Collateral Documents in accordance with the provisions of Section 9.11 of the Note Agreement and Section 7.16 of the Credit Agreement.

(f) Administrative Actions. The Collateral Agent shall have the right to take such actions hereunder and under the Collateral Documents, not inconsistent with the instructions of the Required Senior Lenders or the Supermajority Lenders, as applicable, or the terms of the Collateral Documents and this Agreement, as the Collateral Agent reasonably deems necessary or appropriate to perfect or continue the perfection of the liens on the Collateral for the benefit of the Collateral Agent, the Bank Agent and the Senior Lenders.

(g) Collateral Agent Acting Through Others. The Collateral Agent may perform any of its duties under this Agreement and the Collateral Documents by or through attorneys (which attorneys may be the same attorneys who represent the Bank Agent or any Senior Lender), agents or other Persons reasonably deemed appropriate by the Collateral Agent. In addition, the Collateral Agent may act in good faith reliance upon the opinion or advice of attorneys selected by the Collateral Agent. In all cases the Collateral Agent may pay customary and reasonable compensation to all such attorneys, agents or other Persons as may be employed in connection with the performance of its duties under this Agreement and the Collateral Documents.

(h) Resignation and Removal of Collateral Agent.

(i) The Collateral Agent (A) may resign at any time upon notice to the Senior Lenders, and (B) may be removed at any time upon the written request of the Required Senior Lenders sent to the Collateral Agent and the other Senior Lenders. For the purposes of any determination of Required Senior Lenders under this Section 2(h)(i), any Commitment or Loan and Reimbursement Obligations, Outstanding Letters of Credit Exposure or Senior Notes held by an Insolvent Entity shall be disregarded.

(ii) If the Collateral Agent shall resign or be removed, the Required Senior Lenders shall have the right to select a replacement Collateral Agent by notice to the Collateral Agent and the other Senior Lenders.

(iii) Upon any replacement of the Collateral Agent, the Collateral Agent shall assign all of the liens upon and security interests in all Collateral under this Agreement and the Collateral Documents, and all right, title and interest of the Collateral Agent under this Agreement and all the Collateral Documents, to the replacement Collateral Agent, without recourse to the Collateral Agent or any Senior Lender and at the expense of the Borrower.

obligations within 90 days after the resignation or removal of the Collateral Agent, then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a replacement Collateral Agent.

(v) Any replacement Collateral Agent shall be a bank, trust company, or insurance company having capital, surplus and undivided profits of at least $5,000,000,000.

(i) Indemnification of Collateral Agent. The Loan Parties, by their consent hereto, hereby jointly and severally agree to indemnify and hold the Collateral Agent, its officers, directors, employees and agents (including, but not limited to, any attorneys acting at the direction or on behalf of the Collateral Agent) harmless against any and all costs, claims, damages, penalties, liabilities, losses and expenses (including, but not limited to, court costs and attorneys’ fees and disbursements) which may be incurred by or asserted against the Collateral Agent or any such officers, directors, employees and agents by reason of its status as agent hereunder or which pertain, whether directly or indirectly, to this Agreement, to the Collateral Documents or to any action or failure to act of the Collateral Agent as agent hereunder or thereunder, except to the extent any such action or failure to act by the Collateral Agent or any such other indemnitee is determined by a court of competent jurisdiction to constitute gross negligence or willful misconduct. The obligations of the Loan Parties under this Section 2(i) shall survive the payment in full of the Senior Indebtedness and the termination of this Agreement.

(j) Liability of Collateral Agent. In absence of gross negligence or willful misconduct on the part of the Collateral Agent or any of its officers, directors, employees or agents, the Collateral Agent will not be liable to the Bank Agent or any Senior Lender for any action or failure to act or any error of judgment, negligence, mistake or oversight on its part or on the part of any of its officers, directors, employees or agents. To the extent not paid by the Loan Parties, each Senior Lender hereby severally, and not jointly, agrees to indemnify and hold the Collateral Agent and each of its officers, directors, employees and agents (collectively, “Indemnitees”) harmless from and against any and all liabilities, costs, claims, damages, penalties, losses and actions of any kind or nature whatsoever (including, without limitation, the fees and disbursements of counsel for any Indemnitee) incurred by or asserted against any Indemnitee arising out of or in relation to this Agreement or the Collateral Documents or its status as agent hereunder or any action taken or omitted to be taken by any Indemnitee pursuant to and in accordance with any of the Collateral Documents and this Agreement, except to the extent arising from the gross negligence or willful misconduct of the Collateral Agent or any of its officers, directors, employees or agents, with each Senior Lender being liable only for its Pro Rata Expenses Share, as of the date of the occurrence of the event giving rise to the claim for which indemnity is sought, of any such indemnification liability. The obligations of the Senior Lenders under this Section 2(j) shall survive the payment in full of the Senior Indebtedness and the termination of this Agreement.

(k) No Reliance on Collateral Agent. Neither the Collateral Agent nor any of its officers, directors, employees or agents (including, but not limited to, any attorneys acting at the direction or on behalf of the Collateral Agent) shall be deemed to have made any representations or warranties, express or implied, with respect to, nor shall the Collateral Agent or any such officer, director, employee or agent be liable to the Bank Agent or any Senior Lender or responsible for (i) any warranties or recitals made by any Loan Party in the Collateral Documents or any other agreement, certificate, instrument or document executed by any Loan Party in connection therewith, (ii) the due or proper execution or authorization of this Agreement or any Collateral Documents by any party other than the Collateral Agent, or the effectiveness, enforceability, validity, genuineness or collectibility as against any Loan Party of any Collateral Document or any other agreement, certificate, instrument or document executed by any of the Loan Parties in connection therewith, (iii) the present or future solvency or financial worth of any Loan Party, or (iv) the value, condition, existence or ownership of any of the Collateral or the perfection of any lien upon or security interest in the Collateral (whether now or hereafter held or granted) or the sufficiency of any action, filing, notice or other procedure taken or to be taken to perfect, attach or vest any lien or security interest in the Collateral. Except as may be required by Section 2(b) hereof, the Collateral Agent shall not be required, either initially or on a continuing basis, to (A) make any inquiry, investigation, evaluation or appraisal respecting, or enforce performance by any Loan Party of, any of the covenants, agreements or obligations of any Loan Party under any Collateral Document, or (B) undertake any other actions (other than actions expressly required to be taken by it under this Agreement). Nothing in any of the Collateral Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Collateral Agent any obligations, duties or responsibilities except as set forth in this Agreement and therein. The Collateral Agent shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter,

telegram, telecopy or other paper or document given to it by any Person reasonably and in good faith believed by it to be genuine and correct and to have been signed or sent by such Person. The Collateral Agent shall have no duty to inquire as to the performance or observance of any of the terms, covenants or conditions of the Credit Agreement or the Note Agreement. Except upon the direction of the Required Senior Lenders or the Supermajority Lenders pursuant to Section 2(b) of this Agreement, the Collateral Agent will not be required to inspect the properties or books and records of any Loan Party for any purpose, including to determine compliance by the Loan Parties with their respective covenants respecting the perfection of security interests.

(l) Limited Agency. The Collateral Agent, the Bank Agent and the Senior Lenders agree that it is the intent of the Bank Agent and the Senior Lenders to limit the scope of the powers of the Collateral Agent to the specific powers delegated hereunder, together with such powers as are reasonably incidental thereto, and the Collateral Agent does not and shall not have any right or authority to bind the Bank Agent or any Senior Lender in any other manner or thing whatsoever.

3. Lien Priorities. The parties hereto expressly agree that the security interests and liens granted to the Collateral Agent shall secure the Senior Indebtedness on a pari passu basis for the benefit of the Bank Agent, the Collateral Agent and the Senior Lenders and that, notwithstanding the relative priority or the time of grant, creation, attachment or perfection under applicable law of any security interests and liens, if any, of any of the Bank Agent, the Collateral Agent or any Senior Lender upon or in any of the Collateral to secure any Senior Indebtedness, whether such security interests and liens are now existing or hereafter acquired or arising and whether such security interests and liens are in or upon now existing or hereafter arising Collateral, such security interests and liens shall be first and prior security interests and liens in favor of the Collateral Agent to secure the Senior Indebtedness on a pari passu basis for the benefit of the Bank Agent, the Collateral Agent and the Senior Lenders.

4. Certain Notices. The Collateral Agent, the Bank Agent and each Senior Lender agrees to use its best efforts to give to the others (a) copies of any notice of the occurrence or existence of an Event of Default sent to any Loan Party, simultaneously with the sending of such notice to such Loan Party, (b) notice of the occurrence or existence of an Event of Default of which such party has knowledge, promptly after obtaining knowledge thereof, (c) notice of the refusal of any Bank to make any Revolving Loan or any Term Loan or issue any Letter of Credit, promptly after such refusal, and (d) notice of an Enforcement by such party, prior to commencing such Enforcement, but the failure to give any of the foregoing notices shall not affect the validity of such notice of an Event of Default given to a Loan Party or create a cause of action against or cause a forfeiture of any rights of the party failing to give such notice or create any claim or right on behalf of any third party. The Collateral Agent agrees to deliver to each Senior Lender a copy of each notice or other communication received by it under any Collateral Document as soon as practicable after receipt thereof.

5. Distribution of Proceeds of Collateral After Enforcement.

(a) On and after the occurrence of a Sharing Event (unless, in the case of a Sharing Event arising from a Specified Event of Default, the relevant Event of Default has been waived pursuant to the terms of the Credit Agreement and the Required Holders have consented to such waiver (in the case of a Specified Event of Default arising under the Bank Credit Agreement) or has been waived pursuant to the terms of the Note Agreement and the Required Lenders have consented to such waiver (in the case of a Specified Event of Default arising under a Note Agreement), all proceeds of Collateral held or received by the Collateral Agent, the Bank Agent or any Senior Lender (including, without limitation, any amount of any balances held by the Collateral Agent, the Bank Agent or any Senior Lender for the account of any Loan Party or any other property held or owing by it to or for the credit or for the account of any Loan Party setoff or appropriated by it, but excluding, except as otherwise provided in paragraph (b) of this Section 5, amounts on deposit in the Special Cash Collateral Account provided for in such paragraph (b)) and any other payments received, directly or indirectly, by the Collateral Agent, the Bank Agent or any Senior Lender on or with respect to any Senior Indebtedness (including, without limitation, any payment under any Guaranty Agreement, any payment in an insolvency or reorganization proceeding and the proceeds from any sale of any Senior Indebtedness or any interest therein to any Loan Party or any affiliate of any Loan Party) shall be delivered to the Collateral Agent and distributed as follows:

(i) First, to the Collateral Agent in the amount of any unpaid Collateral Agent Obligations;

(ii) Next, to the extent proceeds remain, to the Senior Lenders in the amount of any unreimbursed amounts paid by the Senior Lenders to any Indemnitee pursuant to Section 2(j) hereof, pro rata in proportion to the respective unreimbursed amounts thereof paid by each Senior Lender;

(iii) Next, to the extent proceeds remain, to the Senior Lenders in the amount of any Senior Indebtedness consisting of accrued and unpaid costs, expenses or indemnities owed to any Senior Lender or Senior Lenders under the Credit Agreement or the Note Agreement, pro rata in proportion to the respective unreimbursed amounts thereof owed to each Senior Lender; and

(iv) Next, to the extent proceeds remain, to the Senior Lenders in the amount of any other unpaid Senior Indebtedness, pro rata in proportion to the respective amounts thereof owed to each Senior Lender (and, for this purpose, Letter of Credit Collateral Obligations shall be considered to have been paid to the extent of any amount then on deposit in the Special Cash Collateral Account provided for in paragraph (b) of this Section 5).

Notwithstanding the foregoing, with respect to any collections or payments received by any Senior Lender on or after the occurrence of a Sharing Event but prior to the date of the occurrence of an Enforcement, (1) such collections and payments shall be subject to the distribution provisions of clauses (i) through (iv), above, only to the extent that the principal amount of the Senior Indebtedness owed to such Senior Lender on the date of such Enforcement is less than the principal amount of the Senior Indebtedness owed to such Senior Lender on the date of such Sharing Event, and (2) the amount of any such collections and payments subject to the distribution provisions of clauses (i) through (iv) above in accordance with the foregoing clause (1) shall not be so distributed until the date of the occurrence of such Enforcement. For the purposes of the preceding sentence, any collection or payment received by the Bank Agent on behalf of the Banks shall be considered to have been received by the Banks, and applied to pay the Senior Indebtedness owed to the Banks to which such payment or collection relates, whether or not distributed by the Bank Agent to the Banks.

After the Senior Indebtedness has been finally paid in full in cash and all Commitments have been terminated, the balance of proceeds of the Collateral, if any, shall be paid to the Loan Parties, as applicable, or as otherwise required by law.

(b) Any payment pursuant to clause (a)(iv) above with respect to Letter of Credit Collateral Obligations shall be paid to the Collateral Agent for deposit in an account (the “Special Cash Collateral Account”) to be held as Collateral for the Senior Indebtedness and disposed of as provided herein. On each date after the occurrence of an Enforcement on which a payment is made to a beneficiary pursuant to a draw on a Letter of Credit, the Collateral Agent shall distribute to the Bank Agent from the Special Cash Collateral Account for application to the payment of the reimbursement obligation due to the issuer of such Letter of Credit an amount equal to the product of (i) the amount then on deposit in the Special Cash Collateral Account, and (ii) a fraction, the numerator of which is the amount of such draw and the denominator of which is the amount of the Outstanding Letters of Credit Exposure immediately prior to such draw. On each date after the occurrence of an Enforcement on which a reduction in the Outstanding Letters of Credit Exposure occurs other than on account of a payment made to a beneficiary pursuant to a draw on a Letter of Credit, then the Collateral Agent shall distribute from the Special Cash Collateral Account an amount equal to the product of (1) the amount then on deposit in the Special Cash Collateral Account and (2) a fraction the numerator of which is the amount of such reduction and the denominator of which is the amount of the Outstanding Letters of Credit Exposure immediately prior to such reduction, which amount shall be distributed as provided in clause (a)(iv), above. At such time as the amount of the Outstanding Letters of Credit Exposure is reduced to zero, any amount remaining in the Special Cash Collateral Account, after the distribution therefrom as provided above, shall be distributed as provided in clause (a)(iv), above.

initially been made by a Loan Party with respect to other Senior Indebtedness, and (ii) such payment shall be deemed to reduce the Senior Indebtedness of any Senior Lenders receiving any distributions from such payment under Section 5(a) or (b) in the amount of such distributions and shall be deemed to restore and reinstate the Senior Indebtedness of any Senior Lender making any such payment under Section 5(a) in the amount of such payment; provided that if for any reason such restoration and reinstatement shall not be binding against any Loan Party, the Senior Lenders agree to take actions as shall have the effect as placing them in the same relative positions as they would have been if such restoration and reinstatement had been binding against the Loan Parties.

6. Reserved.

7. Reserved.

8. Certain Credit Extensions and Amendments to Agreements by the Senior Lenders; Actions Related to Collateral and Guaranty Agreements; Other Liens and Security Interests.

(a) The Bank Agent and each Bank agrees that, without the consent in writing of the Required Holders, it will not (i) except for the Guaranty Agreements, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the Senior Indebtedness, or (ii) from and after the institution of any Bankruptcy Proceeding involving any Loan Party, as respects the Collateral enter into any agreement with such Loan Party with respect to post-petition usage of cash collateral, post-petition financing arrangements or adequate protection. Each Noteholder agrees that, without the consent in writing of the Required Lenders, it will not (i) except for the Guaranty Agreements, retain or obtain the primary or secondary obligations of any other obligor or obligors with respect to all or any part of the Senior Indebtedness, or (ii) from and after the institution of any Bankruptcy Proceeding involving any Loan Party, as respects the Collateral enter into any agreement with such Loan Party with respect to post-petition usage of cash collateral, post-petition financing arrangements or adequate protection.

(b) Each of the Bank Agent and each Senior Lender agrees that it will have recourse to the Collateral only through the Collateral Agent, that it shall have no independent recourse thereto and that it shall refrain from exercising any rights or remedies under the Collateral Documents which have or may have arisen or which may arise as a result of an Event of Default or an acceleration of the maturities of the Senior Indebtedness, except that, upon the direction of the Required Senior Lenders or the Supermajority Lenders as set forth in Section 2(b) above, the Bank Agent and any Senior Lender may setoff any amount of any balances held by it for the account of any Loan Party or any other property held or owing by it to or for the credit or for the account of any Loan Party, provided that the amount set off is delivered to the Collateral Agent for application pursuant to Section 5 hereof. Without such direction, neither the Bank Agent nor any Senior Lender shall setoff any such amount. For the purposes of perfection any setoff rights which may be available under applicable law, any balances held by the Collateral Agent, the Bank Agent or any Senior Lender for the account of any Loan Party or any other property held or owing by the Collateral Agent, the Bank Agent or any Senior Lender to or for the credit or account of any Loan Party shall be deemed to be held as agent for all Senior Lenders.

(c) Neither the Collateral Agent, the Bank Agent nor any Senior Lender shall take or receive a security interest in or lien upon any of the property or assets of any Loan Party as security for the payment of any indebtedness of any Loan Party other than the Senior Indebtedness, nor shall the Collateral Agent, the Bank Agent nor any Senior Lender take or receive a security interest in or a lien upon any of the property or assets of any Loan Party as security for the payment of any Senior Indebtedness other than liens and security interests granted to the Collateral Agent in the Collateral pursuant to the Collateral Documents and other than any judgment lien on any assets of the Loan Parties other than the Collateral as contemplated by Section 8(d) and, if any such security interest or lien is granted in violation of this paragraph (c), the grantee of such security interest or lien agrees that such security interest or lien shall be deemed to have been granted to the Collateral Agent for the benefit of the Collateral Agent, the Bank Agent and the Senior Lenders. The existence of a common law lien and setoff rights on deposit accounts shall not be prohibited by the provisions of this paragraph (c); provided that any realization on such lien or set off rights and the application of the proceeds thereof shall be subject to the provisions of this Agreement.

(d) Nothing contained in this Agreement shall (i) prevent any Senior Lender from imposing a default rate of interest in accordance with the Credit Agreement or the Note Agreement or any Senior Notes, as applicable, or prevent a Senior Lender from raising any defenses in any action in which it has been made a party defendant or has been joined as a third party, except that the Collateral Agent may direct and control any defense directly relating to the Collateral or any one or more of the Collateral Documents as directed by the Required Senior Lenders or the Supermajority Lenders as set forth in 2(b) above, which shall be governed by the provisions of this Agreement, (ii) affect or impair the right any Senior Lender may have under the terms and conditions governing the Senior Indebtedness to accelerate and demand repayment of such Senior Indebtedness or (iii) prevent any Senior Lender from agreeing to new or modified covenants and other terms under, or otherwise amending, the Note Agreement, the Senior Notes, the Credit Agreement, the Revolving Notes or the Term Notes (including for the avoidance of doubt, entering in to any amendments, agreements or instruments that relate to the Additional Bank Obligations). Subject only to the express limitations set forth in this Agreement, each Senior Lender retains the right to freely exercise its rights and remedies as a general creditor of the Loan Parties in accordance with applicable law and agreements with the Loan Parties, including without limitation the right to file a lawsuit and obtain a judgment therein against the Loan Parties and to enforce such judgment against any assets of the Loan Parties other than the Collateral, provided that the application of the proceeds thereof shall be subject to the provisions of this Agreement. Nothing contained in this Agreement shall be construed as an amendment of, or a waiver of a consent to the departure by any Loan Party from, any provision of the Credit Agreement or the Note Agreement.

(e) Subject to the provisions set forth in this Agreement, each Senior Lender and its affiliates may (without having to account therefor to any Senior Lender) own, sell, acquire and hold equity and debt securities of the Loan Parties and lend money to and generally engage in any kind of business with the Loan Parties (as if, in the case of KeyBank National Association, it was not acting as Collateral Agent), and, subject to the provisions of this Agreement, the Senior Lenders and their affiliates may accept dividends, interest, principal payments, fees and other consideration from the Loan Parties for services in connection with this Agreement or otherwise without having to account for the same to the other Senior Lenders, provided that any such amounts which constitute Senior Indebtedness are provided for in the Credit Agreement or the Note Agreement.

9. Accounting; Adjustments.

(a) The Collateral Agent, the Bank Agent and each Senior Lender agrees to render an accounting to any of the others of the amounts of the outstanding Senior Indebtedness, receipts of payments from the Loan Parties or from the Collateral and of other items relevant to the provisions of this Agreement upon the reasonable request from one of the others as soon as reasonably practicable after such request, giving effect to the application of payments and the proceeds of Collateral as provided in this Agreement.

(b) Each party hereto agrees that (i) to the extent any amount distributed to it hereunder is in excess of the amount due to be distributed to it hereunder, it shall pay to the other parties hereto such amounts so that, after giving effect to such payments, the amounts received by all parties hereto are equal to the amounts to be paid to them hereunder, and (ii) in the event any payment made to any party hereto is subsequently invalidated, declared fraudulent or preferential, set aside or required to be paid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then each of the other parties hereto shall pay to such party such amounts so that, after giving effect to the payments hereunder by all such other parties, the amounts received by all parties are not in excess of the amounts to be paid to them hereunder as though any payment so invalidated, declared to be fraudulent or preferential, set aside or required to be repaid had not been made.

10. Notices. Except as otherwise expressly provided herein, any notice required or desired to be served, given or delivered hereunder shall be in writing, and shall be deemed to have been validly served, given or delivered three (3) business days after deposit in the United States mails, with proper postage prepaid, one business day after delivery to a courier for next day delivery, upon delivery by courier or upon transmission by electronic mail, telecopy or other similar electronic medium (provided that a copy of any such notice sent by such transmission is also sent by one of the other means provided hereunder within one day after the date sent by such transmission) to the addresses set forth below the signatures hereto, with a copy to any person or persons set forth below such signature

shown as to receive a copy, or to such other address as any party designates to the others in the manner herein prescribed. Any party giving notice to any other party hereunder shall also give copies of such notice to all other parties.

11. Contesting Liens or Security Interests; No Partitioning or Marshalling of Collateral; Contesting Senior Indebtedness.

(a) Neither the Bank Agent, the Collateral Agent nor any Senior Lender shall contest the validity, perfection, priority or enforceability of or seek to avoid, have declared fraudulent or have put aside any lien or security interest granted to the Collateral Agent as contemplated hereby, and each party hereby agrees to cooperate in the defense of any action contesting the validity, perfection, priority or enforceability of such liens or security interests. Each party and, by its consent hereto, each Loan Party, shall also use its best efforts to notify the other parties of any change in the location of any of the Collateral or the business operations of any Loan Party or of any change in law which would make it necessary or advisable to file additional financing statements in another location as against any Loan Party with respect to the liens and security interests intended to be created by the Collateral Documents, but the failure of any party (other than any Loan Party) to do so shall not create a cause of action against the party failing to give such notice or create any claim or right on behalf of any other party hereto and any third party.

(b) Notwithstanding anything to the contrary in this Agreement or in any Collateral Document, neither the Bank Agent nor any Senior Lender shall have the right to have any of the Collateral, or any security interest or other property being held as security for all or any part of the Senior Indebtedness by the Collateral Agent, partitioned, or to file a complaint or institute any proceeding at law or in equity to have any of the Collateral or any such security interest or other property partitioned, and each of the Bank Agent and each Senior Lender hereby waives any such right. The Collateral Agent, the Bank Agent and each Senior Lender hereby waive any and all rights to have the Collateral, or any part thereof, marshalled upon any foreclosure of any of the liens or security interests securing the Senior Indebtedness.

(c) Neither the Bank Agent, the Collateral Agent nor any Senior Lender shall contest the validity or enforceability of or seek to avoid, have declared fraudulent or have set aside any Senior Indebtedness. In the event any Senior Indebtedness is invalidated, avoided, declared fraudulent or set aside for the benefit of any Loan Party, the Bank Agent, the Collateral Agent and the Senior Lenders agree that such Senior Indebtedness shall nevertheless be considered to be outstanding for all purposes of this Agreement.

12. No Additional Rights for Loan Parties Hereunder; Senior Indebtedness Held By Borrower and its Affiliates; Credit Bidding. Each Loan Party, by its consent hereto, acknowledges that it shall have no rights under this Agreement. If the Collateral Agent, the Bank Agent or any Senior Lender shall violate the terms of this Agreement, each Loan Party agrees, by its consent hereto, that it shall not use such violation as a defense to any enforcement by any such party against such Loan Party nor assert such violation as a counterclaim or basis for setoff or recoupment against any such party. Each of the parties hereto and, by its consent hereto, each Loan Party agrees, that any Senior Indebtedness that may at any time be held by any Loan Party or any Affiliate of any Loan Party shall not be considered to be outstanding for any purpose under this Agreement, such Loan Party or Affiliate shall not be a “Senior Lender”, “Bank” or “Noteholder” under this Agreement and such Loan Party or Affiliate shall not be entitled to the benefit of any provision of this Agreement. Each Loan Party further agrees that it will not object to, contest or oppose (or cause any other Person to object to, contest or oppose or support any other Person in objecting to, contesting or opposing) in any manner any “credit bid” by the Collateral Agent, the Bank Agent or any Senior Lender of any of all the Senior Indebtedness in any sale of assets of any Loan Party pursuant to Section 363 of the Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”), a plan of reorganization under the Bankruptcy Code or otherwise under any other provision of the Bankruptcy Code or in a similar process in any proceeding under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law.

Collateral and post-petition financing arrangements. The Collateral Agent is not entitled to initiate such actions on behalf of the Bank Agent or any Senior Lender or to appear and be heard on any matter before the bankruptcy or other applicable court in any such proceeding as the representative of the Bank Agent or any Senior Lender. The Collateral Agent is not authorized in any such proceeding to enter into any agreement for, or give any authorization or consent with respect to, any determination of adequate protection with respect to the Senior Indebtedness or the post-petition usage of Collateral, unless such agreement, authorization or consent has been approved in writing by the Required Senior Lenders. This Agreement shall survive the commencement of any such Bankruptcy Proceeding.

14. Independent Credit Investigation. None of the Collateral Agent, the Bank Agent or any Senior Lender, nor any of its respective directors, officers, agents or employees, shall be responsible to any of the others for the solvency or financial condition of any Loan Party or the ability of any Loan Party to repay any of the Senior Indebtedness, or for the value, sufficiency, existence or ownership of any of the Collateral, or for the perfection or vesting of any lien or security interest, or for the statements of any Loan Party, oral or written, or for the validity, sufficiency or enforceability of any of the Senior Indebtedness, the Credit Agreement, the Note Agreement, the Guaranty Agreements, any Collateral Document, any document or agreement executed or delivered in connection with or pursuant to any of the foregoing, or for the liens or security interests granted by the Loan Parties to the Collateral Agent in connection therewith. Each of the Collateral Agent, the Bank Agent and each Senior Lender has entered into its respective financial agreements with the Loan Parties based upon its own independent investigation, and makes no warranty or representation to the other, nor does it rely upon any representation by any of the others, with respect to the matters identified or referred to in this Section.

15. Supervision of Obligations. Except to the extent otherwise expressly provided herein, each of the Bank Agent and each Senior Lender shall be entitled to manage and supervise the obligations of the Loan Parties to it in accordance with applicable law and the Bank Agent’s or such Senior Lender’s practices in effect from time to time without regard to the existence of any other Senior Lender.

16. Turnover of Collateral. If the Bank Agent or any Senior Lender acquires custody, control or possession of any Collateral or any proceeds thereof other than pursuant to the terms of this Agreement, the Bank Agent or such Senior Lender, as the case may be, shall promptly cause such Collateral or the proceeds thereof to be delivered to or put in the custody, possession or control of the Collateral Agent for disposition and distribution in accordance with the provisions of Section 5 of this Agreement. Until such time as the Bank Agent or such Senior Lender, as the case may be, shall have complied with the provisions of the immediately preceding sentence, the Bank Agent or such Senior Lender, as the case may be, shall be deemed to hold such Collateral and the proceeds thereof in trust for the parties entitled thereto under this Agreement.

17. Options to Purchase.

(a) After the occurrence of an Event of Default, each Bank shall have the option to purchase all (but not less than all) of the outstanding Senior Indebtedness owed to the Noteholders at a purchase price equal to 100% of the amount thereof on the date of purchase (including all interest thereon and any Excess Leverage Fee to the date of purchase), plus an amount equal to the Make-Whole Amount which would be payable under the Note Agreement if the Senior Notes were prepaid pursuant to paragraph 8.2 of the Note Agreement on such date of purchase.

(b) After the occurrence of an Event of Default, each Noteholder shall have the option to purchase all (but not less than all) of the outstanding Senior Indebtedness owed to the Banks at a purchase price equal to 100% of the amount thereof on the date of purchase (including all interest and LIBOR breakage costs thereon to the date of purchase).

Agreement for payments upon the Revolving Loans or in the Note Agreement for payments on the Senior Notes, as the case may be. Any notice of exercise of any such option to purchase shall be irrevocable. In the event more than one notice of exercise of an option to purchase under this Section 17 is given, only the notice first given shall be effective and the other notices given shall be ineffective.

18. Amendment. This Agreement and the provisions hereof may be amended, modified or waived only by a writing signed by the Collateral Agent, the Bank Agent and the Required Holders.

19. Bank Agent Authorized to Act for Banks. The Bank Agent represents and warrants to the other parties hereto that it is authorized pursuant to the Credit Agreement to execute this Agreement on behalf of itself and each other Bank and the execution, delivery and performance by the Bank Agent of this Agreement will result in a valid and legally binding obligation of each Bank enforceable in accordance with its terms.

20. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of each of the parties hereof, including subsequent holders of the Senior Indebtedness and Persons subsequently becoming parties to the Credit Agreement as a “Bank” thereunder or becoming parties to the Note Agreement as a “holder of a Note” thereunder, provided that (a) neither the Collateral Agent, the Bank Agent nor any Senior Lender shall assign or transfer any interest in any Senior Indebtedness or permit such Person to become such a party to the Credit Agreement or to become a party to the Note Agreement unless such transfer or assignment is made subject to this Agreement and such transferee, assignee or Person (i) executes and delivers to the Collateral Agent, the Bank Agent and each other Senior Lender an Assumption Agreement in the form of Exhibit A hereto under which such transferee, assignee or Person assumes the obligations of the transferor or assignor or the obligations of a “Bank” or a “Noteholder,” as the case may be, hereunder from and after the time of such transfer or assignment or the time such Person becomes a party to the Credit Agreement or the Note Agreement, as the case may be, or (ii) otherwise confirms in any assignment and assumption or other document evidencing such assignment or transfer that it is bound by the terms and conditions of this Agreement, and (b) the appointment of any replacement Collateral Agent shall be subject to the provisions of Section 2(h) hereof.

21. Limitation Relative to Other Agreements. Nothing contained in this Agreement is intended to impair (a) as between the Noteholders and the Loan Parties, the rights of the Noteholders and the obligations of the Loan Parties under the Note Agreement and the Senior Notes, or (b) as between the Banks and the Loan Parties, the rights of the Banks and the obligations of the Loan Parties under the Credit Agreement or the Revolving Notes.

22. Counterparts; Facsimile or Electronic Signatures. This Agreement 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, but all of which together shall constitute but one and the same 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. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

23. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AS TO VALIDITY, INTERPRETATION, ENFORCEMENT AND EFFECT BY THE LAWS OF THE STATE OF NEW YORK (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS AGREEMENT TO BE GOVERNED BY THE LAWS OF ANY OTHER JURISDICTION).

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.

KeyBank National Association, in its individual capacity, as Bank Agent and as Collateral Agent

By: __________________________________

Title:

Address for notices:

__________________________________

Attn:

Facsimile:

By: __________________________________

Title:

Address for notices:

__________________________________

Attn:

Facsimile:

[Initial Noteholders/Variation]

By: __________________________________

__________________________________

Title:

Address for notices:

__________________________________

EXHIBIT A

FORM OF ASSUMPTION AGREEMENT

Assumption Agreement

Reference is made to the Intercreditor and Collateral Agency Agreement, dated _________ __, 20__ by and among KeyBank National Association in its capacity as Bank Agent, and Collateral Agent and the Noteholders party thereto (the “Intercreditor Agreement”). Terms used in this Assumption Agreement and not otherwise defined herein shall have the meanings given in the Intercreditor Agreement.

The undersigned hereby advises the Collateral Agent, the Bank Agent and the other Senior Lenders that as of the date set forth below the undersigned [is the assignee or transferee of [describe Senior Indebtedness assigned or transferred] from [name of assigning or transferring Senior Lender]] [became a party to the Credit Agreement as “Bank” thereunder] [[became a party to the Note Agreement as a “holder” thereunder]] and, pursuant to the provisions of Section 20 of the Intercreditor Agreement, the undersigned hereby assumes the obligations of [[name of assigning or transferring Senior Lender] with respect to [describe Senior Indebtedness assigned or transferred]] [a Bank] [[a Noteholder]] under the Intercreditor Agreement from and after the date hereof.

Please be advised that for the purposes of Section 10 of the Intercreditor Agreement the address for notices to the undersigned is as follows:

Name: __________________________________

Address: __________________________________

Attention: __________________________________

Facsimile: __________________________________

IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed as of _________, _____.

By: __________________________________

Title:

ACKNOWLEDGMENT OF AND CONSENT AND AGREEMENT

TO INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

The undersigned, the Loan Parties described in the Intercreditor and Collateral Agency Agreement, dated as of ________ __, 20__, among the Collateral Agent, the Bank Agent and the Senior Lenders (as defined therein), acknowledge and, to the extent required, consent to the terms and conditions thereof. The undersigned Loan Parties do hereby further acknowledge and agree to their joint and several agreements under Sections 2(i), 5(c) and 12 of the Intercreditor and Collateral Agency Agreement and acknowledge and agree that no Loan Party is a third-party beneficiary of, or has any rights under, the Intercreditor and Collateral Agency Agreement. The undersigned hereby further agree that any proceeds or any payment made by any Loan Party to any Senior Lender which is required to be delivered to the Collateral Agent and distributed in accordance with the provisions of Section 5(a) of the Intercreditor and Collateral Agency Agreement shall be deemed to have been delivered by the Loan Parties to pay the Senior Indebtedness in the amounts in which any such proceeds or payments are allocated under such Section 5(a) notwithstanding the amount initially paid to or received by any particular Senior Lender or Lender which such Senior Lender or Lender delivered to the Collateral Agent.

This Acknowledgment of and Consent and Agreement to Intercreditor and Collateral Agency 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, but all of which together shall constitute but one of the same instrument. In proving this Acknowledgment of and Consent and Agreement to Intercreditor and Collateral Agency 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. Delivery of an executed counterpart of a signature page to this Acknowledgment of and Consent and Agreement to Intercreditor and Collateral Agency Agreement by facsimile or electronic transmission shall be effective as a delivery of a manually executed counterpart of this Acknowledgment of and Consent and Agreement to Intercreditor and Collateral Agency Agreement.

IN WITNESS WHEREOF, the parties below have caused this Acknowledgment of and Consent and Agreement to Intercreditor and Collateral Agency Agreement to be executed by their respective duly authorized officers as of ______________, 20__.

EPR Properties

By: __________________________________

Title:

Exhibit 10.2

EXECUTION VERSION

____________________________________________________________________________________

EPR PROPERTIES

________________________________________

SECOND AMENDMENT

Dated as of June 29, 2020

NOTE PURCHASE AGREEMENT

Dated as of August 1, 2016

________________________________________

Re: 4.35% Series A Guaranteed Senior Notes due August 22, 2024

4.56% Series B Guaranteed Senior Notes due August 22, 2026

________________________________________

SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT

THIS SECOND AMENDMENT dated as of June 29, 2020 (this “Amendment”) to that certain Note Purchase Agreement dated as of August 1, 2016 is between EPR Properties, a Maryland real estate investment trust (the “Company”), and each holder of Notes (as hereinafter defined) party hereto (collectively, the “Noteholders”).

RECITALS:

A. The Company has heretofore entered into that certain Note Purchase Agreement dated as of August 1, 2016 (as amended by the First Amendment dated as of September 27, 2017, the “Original Note Purchase Agreement”) with each of the Purchasers listed in the Purchaser Schedule thereto pursuant to which the Company issued and has outstanding $340,000,000 aggregate principal amount of its Guaranteed Senior Notes, consisting of (a) $148,000,000 aggregate principal amount of its 4.35% Series A Guaranteed Senior Notes due August 22, 2024 and (b) $192,000,000 aggregate principal amount of its 4.56% Series B Guaranteed Senior Notes due August 22, 2026 (collectively, the “Notes”).

B. The Company and the Noteholders now desire to amend the Original Note Purchase Agreement in the respects, but only in the respects, hereinafter set forth.

C. Capitalized terms used herein shall have the respective meanings ascribed thereto in the Original Note Purchase Agreement unless herein defined or the context shall otherwise require.

D. All requirements of law have been fully complied with and all other acts and things necessary to make this Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.

NOW, THEREFORE, upon the full and complete satisfaction of the conditions precedent to the effectiveness of this Amendment set forth in Section 3.1 hereof, and in consideration of good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and the Noteholders do hereby agree as follows:


SECTION 1.	AMENDMENTS.

1.1. The first paragraph of Section 9.9(a) of the Original Note Purchase Agreement shall be and hereby is amended by restating clause (y) thereof to read as follows:

(y)(A) if an Alternate Trigger Event occurs during the Covenant Relief Period, within 10 Business Days thereafter cause each Unencumbered Property Owner Subsidiary to, and (B) within 10 Business Days after the Company fails to maintain an Investment Grade Rating from any two of the Rating Agencies, cause each Unencumbered Property Owner Subsidiary to:

1.2. Section 9.9(b) of the Original Note Purchase Agreement shall be and hereby is amended by restating clause (3) thereof to read as follows:

(3) at the time of, and after giving effect to, such release and discharge, no Default or Event of Default shall have occurred and be continuing and, if such Subsidiary Guarantor shall have provided its Subsidiary Guaranty Agreement pursuant to Section 9.9(a)(y)(A), the Covenant Relief Period shall have been terminated in accordance with the terms of this Agreement,

1.3. The following new Sections 9.11 through 9.14 shall be and hereby are added to the Original Note Purchase Agreement in proper sequence:

Section 9.11. Springing Equity Pledge.

(a) If, during the continuation of the Covenant Relief Period, a Pledge Trigger Event occurs, then, in addition to the Company’s obligations under Section 9.9(a) within five Business Days of the occurrence of such Pledge Trigger Event, the Company will provide to the holders of the Notes a proposed schedule of Unencumbered Properties with respect to which an equity interest pledge shall be granted to the Collateral Agent, on behalf of the holders of the Notes and the administrative agent and the lenders under the Bank Credit Agreement, to secure the Company’s obligations hereunder and under the Notes, which Unencumbered Properties will be representative (on a pro rata value basis) of the various asset classes owned by the Company, with the aggregate Unencumbered Asset Value of such Unencumbered Properties to be at least equal to the Required Value. The proposed schedule shall be acceptable to the Required Lenders (as defined in the Bank Credit Agreement). If on the date of occurrence of the Pledge Trigger Event the aggregate outstanding principal amount of the Notes equals or exceeds the Outstanding Amount of all Loans and unreimbursed LC Disbursements (each as defined in the Bank Credit Agreement on the Second Amendment Effective Date), the proposed schedule of Unencumbered Properties shall also be acceptable to the Required Holders in their reasonable discretion; provided that the Required Holders shall be deemed to have accepted such schedule if they do not reasonably object thereto within five Business Days after receipt of the schedule from the Company that has been approved by the Required Lenders (as defined in the Bank Credit Agreement). If the Required Holders, in their discretion, reasonably object to such schedule pursuant to the immediately preceding sentence, the Required Holders shall have the right to revise the schedule of Unencumbered Properties to reflect, in the reasonable determination of the Required Holders, a fair representation (on a pro rata value basis) of the various asset classes owned by the Company, with the aggregate Unencumbered Asset Value of such revised schedule of Unencumbered Properties to be as close as practicable to (but not less than) the Required Value. Upon approval (or revision) by the Required Lenders (as defined in the Bank Credit Agreement) (and, if applicable, upon approval or deemed approval (or revision) by the Required Holders) of such list of Unencumbered Properties (such final list, the “Pledged Properties”), the Company shall cause each owner of Equity Interests of the Unencumbered Property Owner Subsidiaries that own such Pledged Properties to (1) execute and deliver to the Collateral Agent, within 10 Business Days after the approval (or revision) of the Pledged Properties schedule, a pledge agreement (the “Pledge Agreement”) substantially in the form attached to the Second Amendment as Exhibit PA (or a joinder to the Pledge Agreement if already in effect pursuant to this Section 9.11) and appropriate certificates and powers and/or Uniform Commercial Code financing statements, pledging all Equity Interests of each such Unencumbered Property Owner Subsidiary with respect to the Pledged Properties, in form and substance satisfactory to the Required Holders, and (2) the organizational documents, certificates of good standing, resolutions and, if requested by the Required Holders, a legal opinion regarding the Company and such Subsidiaries, all in form and substance reasonably satisfactory to the Required Holders. Any such pledge shall also require, as determined by the Required Holders, delivery of an intercreditor agreement (the “Intercreditor Agreement”) substantially in the form attached to the Second Amendment as Exhibit IA. Thereafter, if (i) the Required Value increases as a result of an increase in the sum of (A) the amount of Outstanding Amounts due under the Credit Agreement and (B) the principal amount of the Notes, the above process shall be repeated as of the date of any such increase, or (ii) there is an increase or decrease in the aggregate Unencumbered Asset Value of the Pledged Properties as a result of a Lease Modification (as hereinafter defined), the above process shall be repeated as of the date of delivery of the financial statements next required to be delivered

pursuant to Section 7.1(a) or Section 7.1(b) after the date of such Lease Modification, in each case with respect to the pledge of equity interests in respect of additional Unencumbered Properties such that the aggregate Unencumbered Asset Value of all of the Pledged Properties shall be as close as practicable to (but not less than) the Required Value. For the purposes of this Section 9.11, the Unencumbered Asset Value of each Pledged Property shall mean (I) for any Pledged Property (other than any AMC Pledged Property) owned by the Company and its Subsidiaries on March 31, 2020, the Unencumbered Asset Value of such Pledged Property as of such date, (II) for an AMC Pledged Property owned by the Company and its Subsidiaries on March 31, 2020, 80% of the Unencumbered Asset Value of such AMC Pledged Property as of such date (except as otherwise provided in clause (IV) below), (III) for any Pledged Property (including any AMC Pledged Property) owned by the Company and its Subsidiaries and acquired after March 31, 2020, the cost of such Pledged Property determined in accordance with GAAP and (IV) for any Pledged Property (including any AMC Pledged Property) that has undergone a lease modification after March 31, 2020 where the rent has been permanently adjusted (a “Lease Modification”), the Unencumbered Asset Value of such Pledged Property determined after giving effect to the new rent charged (for purposes of this clause (IV), a termination of a lease or the vacating by the tenant of a Pledged Property shall be deemed to be a permanent adjustment of the rent to $0 until such time as such Pledged Property is re-leased, at which time such Pledged Property shall have an Unencumbered Asset Value based upon the new lease). For the avoidance of doubt, a COVID-19 related deferral of rent or similar payments shall not constitute a Lease Modification.

(b) At such time as the Covenant Relief Period shall have expired or been terminated in accordance with the terms of this Agreement, so long as no Default or Event of Default shall then exist, simultaneously with the direction of each other creditor that is a party to the Intercreditor Agreement, the holders of the Notes shall direct the Collateral Agent, at the Company’s expense, to release the Liens pledged pursuant to the Pledge Agreement.

Section 9.12. Excess Leverage Fee. The Company agrees that, in addition to interest accruing on the Notes, the Company will pay to each holder of a Note a fee on the outstanding principal amount of each Note held by such holder, computed on the same basis and payable at the same time as such interest, at a rate per annum equal to (collectively, the “Excess Leverage Fee”):

(a) 0.65% from and after the Second Amendment Effective Date until the last day of the Covenant Relief Period; and

(b) in addition to the fee then payable pursuant to the foregoing clause (a), 0.60% at all times during the Covenant Relief Period when the Company fails to maintain an Investment Grade Rating from any two of the Rating Agencies.

The accrued and unpaid Excess Leverage Fee on any principal amount being paid or prepaid shall be paid concurrently with such principal in accordance with Section 14.2. Any overdue payment of an Excess Leverage Fee shall accrue interest at a rate per annum from time to time equal to the Default Rate applicable to the applicable Note, payable in arrears at the same time accrued interest is paid on such Note (or, at the option of the registered holder thereof, on demand). For the avoidance of doubt, each Excess Leverage Fee shall be deemed to constitute a fee for all purposes.

9.13. Covenant to Make a Pro Rata Prepayment Offer to Prepay Notes Upon Certain Transactions.

The provisions of this Section 9.13 shall be effective from the Second Amendment Effective Date to the last day of the Covenant Relief Period.

(a) Notice of Prepayment Transaction. The Company will, not later than two Business Days after the occurrence of a Prepayment Transaction, give a notice thereof to each holder of Notes. Such notice shall contain and constitute an offer to prepay Notes as described in Section 9.13(b) and shall be accompanied by the certificate described in Section 9.13(e).

(b) Offer to Prepay Notes. The offer to prepay Notes contemplated by Section 9.13(a) shall be an offer to prepay, in accordance with and subject to this Section 9.13, all or a portion of the Notes held by each holder on a date specified in such offer (the “Proposed Prepayment Date”) that is a Business Day not less than 20 days and not more than 30 days after the date of such offer (or if the Proposed Prepayment Date shall not be specified in such offer, the Proposed Prepayment Date shall be the Business Day nearest to the 20th day after the date of such offer). The offer to prepay Notes under this Section 9.13(b) shall be made pro rata to each holder of Notes (based on the aggregate principal amount of the Notes held by each such holder) in an aggregate amount equal to the Allocation Percentage multiplied by the applicable Net Cash Proceeds (each an “Offered Amount”).

(c) Acceptance; Rejection. A holder of Notes may accept the offer to prepay made pursuant to this Section 9.13 by causing a notice of such acceptance to be delivered to the Company not more than 10 days after receipt of the offer to prepay the Notes pursuant to this Section 9.13. A failure by a holder of Notes to so respond to an offer to prepay made pursuant to this Section 9.13 shall be deemed to constitute (1) a rejection of such offer by such holder if such prepayment is to be made without Make-Whole Amount or (2) an acceptance of such offer by such holder if such payment is to be made with Make-Whole Amount. On the Business Day immediately following such 10^th day, the Company shall offer the rejected (or deemed rejected) portion of the Offered Amount to prepay the Notes of the holders that have accepted the first prepayment offer on a pro rata basis, and any failure by any such holder to respond to such second offer prior to the Proposed Prepayment Date shall be deemed to constitute (i) a rejection of such second offer by such holder if such prepayment is to be made without Make-Whole Amount or (ii) an acceptance of such second offer by such holder if such payment is to be made with Make-Whole Amount. On the Proposed Prepayment Date, the Company shall apply the aggregate amount of all Offered Amounts that have been rejected or deemed rejected pursuant to this Section 9.13(c) to repay the outstanding Term Loans and/or Revolving Credit Loans, but without any corresponding permanent reduction in the Revolving Credit Commitments (as each of the relevant terms is defined in the Bank Credit Agreement) and/or to repay other senior unsecured Indebtedness of the Company or any Subsidiary.

(d) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 9.13 shall be at 100% of the principal amount of such Notes plus, if on the date of the relevant Prepayment Transaction the Company fails to maintain an Investment Grade Rating from any two of the Rating Agencies, the Make-Whole Amount (calculated as if Section 8.6 included references to prepayments under this Section 9.13) determined for the date of prepayment with respect to such principal amount (without giving effect to any Excess Leverage Fee). The prepayment shall be made on the Proposed Prepayment Date.

(e) Officer’s Certificate. Each offer to prepay the Notes pursuant to this Section 9.13 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such offer, specifying: (1) the Proposed Prepayment Date; (2) that such offer is made pursuant to this Section 9.13; (3) the principal amount of each Note offered to be prepaid; (4) the

interest that would be due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (5) the Excess Leverage Fee, if any, that would be due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (6) that the conditions of this Section 9.13 have been fulfilled; and (7) in reasonable detail, the nature and date of the relevant Prepayment Transaction.

(f) Prepayment of Loans. The Company will apply that portion of the Net Cash Proceeds allocable to the outstanding Term Loans and/or Revolving Credit Loans to prepay such Loans on the Proposed Prepayment Date, but without any corresponding permanent reduction in the Revolving Credit Commitments (as each of the relevant terms is defined in the Bank Credit Agreement).

(g) Relevant Definitions.

(1) “Allocation Percentage” means, as of any date of determination, (i) the aggregate outstanding principal amount of the Notes on such date divided by (ii) the sum of (A) the Outstanding Amounts of all Loans (as defined in the Bank Credit Agreement on the Second Amendment Effective Date) plus (B) the aggregate outstanding principal amount of the Notes on such date.

(2) “Prepayment Transaction” means the receipt by the Company or any Subsidiary of Net Cash Proceeds; provided that a Prepayment Transaction shall not be deemed to have occurred unless and until the aggregate amount of Net Cash Proceeds received after the Second Amendment Effective Date, less the amount of Net Cash Proceeds previously applied to prepay Indebtedness pursuant to this Section 9.13, is greater than or equal to $10,000,000.

9.14 Maintenance of Ratings. The Company shall at all times during the Covenant Relief Period maintain a rating on the Index Debt from each Rating Agency.

1.4. Section 10.6(a) of the Original Note Purchase Agreement shall be and hereby is amended by adding the following at the end of such Section immediately before the period: “provided that (1) the amount of Short-Term Unsecured Indebtedness included in the calculation of Unsecured Indebtedness shall be reduced by the aggregate amount of unrestricted cash and Cash Equivalents held by the Company on a Consolidated basis (with the Company directly or through the applicable Subsidiary having full access thereto and control thereof) in excess of $25,000,000, and (2) Unencumbered Asset Value shall be increased by the amount of Excess Unrestricted Cash and Cash Equivalents as of the applicable date of calculation”.

1.5. The following new clause (f) shall be and hereby is added to Section 10.6 of the Original Note Purchase Agreement:

(f) Minimum Liquidity. During the Covenant Relief Period, the Company will not permit the sum, calculated on a Consolidated basis with respect to the Company, of (1) unrestricted cash and Cash Equivalents held by the Company and its Subsidiaries (with the Company directly or through the applicable Subsidiary having full access thereto), and (2) undrawn availabilityunder the Bank Credit Agreement (to the extent available to be drawn at the date of determination in accordance with the Bank Credit Agreement), to at any time be less than $250,000,000.

1.6. Section 10.6 of the Original Note Purchase Agreement shall be and is hereby further amended by inserting the following new paragraph after the last paragraph thereof:

Notwithstanding the foregoing, (x) during the Covenant Relief Period, the Company shall have no obligation to satisfy the covenants set forth in clause (a) (Unencumbered Asset Value) or clause (b) (Total Debt to Total Asset Value) above, and (y) during the period commencing on the Second Amendment Effective Date and ending on the earlier to occur of (i) October 1, 2020 and (ii) the earlier expiration of the Covenant Relief Period pursuant to clause (b) of the definition thereof, the Company shall have no obligation to satisfy the covenants set forth in clause (d) (Minimum Fixed Charge Coverage Ratio) or clause (e) (Minimum Unsecured Interest Coverage Ratio) above; provided that the Company shall continue to deliver to the holders of the Notes duly completed Officer’s Certificates pursuant to Section 7.2(a), for informational purposes only, as and when required under Section 7.2(a) certifying as to the Company’s calculations of each of the financial covenants set forth in this Section 10.6, notwithstanding that covenants referenced in the foregoing clauses (x) and (y) of this sentence are not required to be satisfied during the periods specified therein. For the avoidance of doubt, immediately following the expiration of the applicable waiver period described in the foregoing clause (x) and/or (y), respectively, and as applicable, each financial covenant contained in this Section 10.6 and those incorporated pursuant to Section 9.10 shall be in full force and effect, in each case, without giving effect to the terms of this paragraph.

1.7. The following new Sections 10.8 and 10.9 shall be and hereby are added to the Original Note Purchase Agreement in proper sequence:

10.8. Distributions. The Company will not make any Distribution that would violate either of the following covenants:

(a) if an Event of Default shall have occurred and be continuing, the Company will not make any Distribution other than the minimum Distributions required under the Code to maintain the Company’s status as a REIT, as evidenced by a certification of the Chief Financial Officer of the Company or its Vice President - Finance containing calculations in reasonable detail reasonably satisfactory in form and substance to the Required Holders; provided that the Company shall not be entitled to make any Distribution in connection with the repurchase of common stock of the Company at any time after an Event of Default shall have occurred and be continuing; and

(b) if an Event of Default under Section 11(a), (b), (g), (h) or (i) shall have occurred and be continuing or if the Notes have been accelerated, the Company will not make any Distribution whatsoever, either directly or indirectly.

10.9. Covenant Relief Period. Notwithstanding anything to the contrary contained herein, so long as the Covenant Relief Period is continuing:

(a) (1) the Company will not, and will not permit any Subsidiary to, (i) make any Investments pursuant to clause (f)(13) or (16) below, (ii) make any Investments described under clause (f)(14) below in any new Subsidiary to facilitate any Investment under clause (f)(13) or (16) below, and (2) the Company will not incur any Indebtedness under Section 9.3(b) of the Bank Credit Agreement as in effect on the Second Amendment Effective Date which constitutes a guaranty (other than a “bad boy” guaranty permitted under clause (d) of such Section 9.3(b)) incurred in connection with any Indebtedness of a Subsidiary, except for any such Investments and/or Indebtedness under the foregoing clauses (1) and (2), respectively, which (A) in the aggregate, do not exceed (x) $75,000,000 during the period commencing on the Second Amendment Effective Date and ending on December 31, 2020, and (y) $50,000,000 during the calendar quarter commencing on January 1,

2021, or (B) constitute non cash acquisitions made in exchange for forgiveness of deferred rent or payments under EPR Senior Property Loans;

(b) the Company will not make any Distributions (1) on account of any common stock in the Company, other than the minimum Distributions required under the Code to maintain the status of the Company as a REIT, as evidenced by a certification of the Chief Financial Officer of the Company or its Vice President - Finance containing calculations in reasonable detail reasonably satisfactory in form and substance to the Required Holders, (2) other than to avoid incurring any corporate income or excise taxes, or (3) in excess of $6,100,000 in the aggregate in any calendar quarter on account of any preferred stock in the Company issued prior to the Second Amendment Effective Date;

(c) the Company will not, and will not permit any Subsidiary to, make any capital expenditures except for: (1) discretionary capital expenditures which do not exceed (i) $125,000,000 in the aggregate during the period commencing on the Second Amendment Effective Date and ending on December 31, 2020, and (ii) $50,000,000 during the calendar quarter commencing on January 1, 2021, and (2) capital expenditures incurred in connection with any emergency repairs posing an imminent threat to life safety or property damage;

(d) the Company will not permit Consolidated Tangible Net Worth at any time to be less than the sum of (1) $2,159,490,480 plus (2) 75% of the aggregate Net Equity Proceeds received by the Company on a Consolidated basis subsequent to September 27, 2017;

(e) the Company will not permit the ratio, calculated on a Consolidated basis with respect to the Company, of: (1) Investments in the aggregate sum (without duplication) of: (i) Investments in unimproved real estate (including cost of land held for development), which such Investment is in the form of a fee, leasehold or mortgage interest; (ii) Investments in construction which is not pre-leased (total budgeted cost, including cost of land); (iii) Investments in mortgage loans secured by real estate (other than EPR Senior Property Loans), and (iv) Investments in unconsolidated Subsidiaries, to (2) Total Asset Value, to exceed 25% at any time; provided that any violation of the foregoing limitations in this clause (e) shall not constitute a Default or Event of Default but shall result in the exclusion from the calculation of Total Asset Value of the aggregate value of the Investments described in clause (1) above in excess of 25% of Total Asset Value;

(f) the Company will not, and will not permit any Unencumbered Property Owner Subsidiary to, make, permit to exist or to remain outstanding any Investment except Investments in (1) marketable direct or guaranteed obligations of the United States that mature within one year from the date of purchase by the Company or any such Subsidiary, (2) 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, (3) demand deposits, certificates of deposit, bankers acceptances and time deposits of any of the Lenders under the Bank Credit Agreement or any United States bank having total assets in excess of $100,000,000; provided 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, (4) securities commonly known as “commercial paper” issued by any Lender under the Bank Credit Agreement or a corporation organized and existing under the laws of the United States or any state thereof which at the time of purchase are rated by Moody’s or by S&P at not less than

“P-1” if then rated by Moody’s, and not less than “A-1” if then rated by S&P, (5) 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 or by S&P at not less than “AA” if then rated by Moody’s and not less than “AA” if then rated by S&P, (6) repurchase agreements having a term not greater than 180 days and fully secured by securities described in the foregoing clauses (1), (2) or (5) with Persons described in the foregoing clause (3) or financial institutions or other corporations having total assets in excess of $500,000,000, (7) shares of so-called “money market funds” registered with the SEC under the Investment Company Act of 1940 which maintain a level per-share value, invest principally in investments described in the foregoing clauses (1) through (6) and have total assets in excess of $50,000,000, (8) to the extent not already described above, Cash Equivalents, (9) intercompany obligations owing to the Company, an Unencumbered Property Owner Subsidiary or an Unencumbered Property Equity Owner, (10) to the extent constituting Investments, loans or advances in the ordinary course of business to directors, officers, employees or agents of the Company or another Subsidiary for travel, entertainment, relocation and like expenses, (11) to the extent constituting Investments, non-cash consideration received in connection with an asset sale not prohibited under this Agreement, (12) Investments in the nature of accounts receivable, notes receivable, lease receivables or similar receivables arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors, lessees or similar obligors to the extent reasonably necessary in order to prevent or limit loss, (13) the following Investments: (i) Investments in Real Estate (including fee and leasehold interests in real property and improvements thereon and interests in mortgage loans and other financing secured by any interest in real property or improvements thereon); (ii) Investments in property (whether constituting real or personal property) in the nature of options, licenses, easements and other rights relating to real property; (iii) Investments in equipment and other personal property in connection with Investments described in clauses (i) or (ii) immediately above, including Investments in equipment leased to tenants or mortgagors or sold to tenants or mortgagors pursuant to purchase-money loans or similar financing arrangements; and (iv) Investments in corporations, partnerships, limited liability companies, trusts and other entities which are or will be engaged primarily in making or managing Investments of a type described in clauses (i), (ii) or (iii) immediately above; provided that nothing in this clause (13) shall limit or impair the provisions of clause (e) of this Section 10.9, (14) subject to the terms of this Agreement, Investments in Subsidiaries of the Company existing as of September 27, 2017, and Investments in new Subsidiaries of the Company created after September 27, 2017, (15) deposits required by government agencies or public utilities, and other deposits or pledges which constitute Permitted Liens, and (16) Investments, other than Investments described in clauses (1) through (15) above, provided that (i) the amount of all Investments made pursuant to this clause (16) does not exceed $75,000,000 measured at the time when made, and (ii) no Default or Event of Default exists at the time any such Investment is made; provided that, notwithstanding anything to the contrary herein, the Company and its Subsidiaries shall not repurchase any Equity Interests of the Company other than pursuant to the Company’s 2007 and 2016 equity incentive plans in amounts generally consistent with past practice;

(g) the Company will not permit the Equity Interests of any Unencumbered Property Equity Owner to be subject to any Lien, other than Liens in favor of the Collateral Agent in accordance with Section 9.11;

(h) the Company will not, and will not permit any Subsidiary to, (1) voluntarily prepay any outstanding Term Loan (as defined in the Bank Credit Agreement on the Second Amendment Effective Date) or (2) permanently reduce the Revolving Credit Commitments (as defined in the Bank

Credit Agreement on the Second Amendment Effective Date), whether directly or indirectly through the addition of a borrowing base or similar limitation; and

(i) in addition to all financial reporting required under this Agreement, the Company will submit, as soon as practicable, but in any event not later than 15 days after (1) the end of each January, February, April, May, July, August, October and November (commencing with the month ending July 31, 2020), an unaudited income statement for such month, and (2) the end of each calendar month (commencing with the month ending July 31, 2020), a statement of the Company’s Consolidated unrestricted cash and Cash Equivalents for such month and a calculation in reasonable detail of the covenant in Section 10.6(f).

1.8. Section 11 of the Original Note Purchase Agreement shall be and is hereby amended by (a) amending clause (c) thereof to add the phrase “, Section 9.13(a)” immediately after the reference to “Section 9.7” and to add the phrase “, Section 10.8, Section 10.9” immediately after the reference to “Section 10.6”, (b) amending clause (d) thereof to add the phrase “, in the Pledge Agreement” immediately after the first parenthetical phrase in such clause (d), (c) redesignating clause (l) thereof as clause “(n)” and (d) inserting the following new clauses (l) and (m) in proper sequence:

(l) the Company defaults in the payment of any Excess Leverage Fee for more than five Business Days after the same becomes due and payable; or

(m) the Pledge Agreement shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject only to Liens permitted thereunder) on the collateral purported to be covered thereby; or

1.9. The last paragraph of Section 12.1 of the Original Note Purchase Agreement shall be and is hereby amended by inserting the phrase “and any Excess Leverage Fee, if any,” after the phrase “(including interest accrued thereon at the applicable Default Rate)” in clause (x) of said Section.

1.10. Section 12.3(a) of the Original Note Purchase Agreement shall be and is hereby amended by (a) inserting the phrase “and all overdue Excess Leverage Fee, if any,” after the phrase “paid all overdue interest” and (b) inserting the phrase “, Excess Leverage Fee, if any,” after the words “on such overdue principal”.

1.11. Section 14.1 of the Original Note Purchase Agreement shall be and is hereby amended by inserting the phrase “Excess Leverage Fee, if any,” after the words “Make-Whole Amount, if any,” in the first sentence of said Section.

1.12. Section 14.2 of the Original Note Purchase Agreement shall be and is hereby amended by inserting the phrase “Excess Leverage Fee, if any,” after the phrase “Make-Whole Amount, if any,” in the first sentence of said Section.

1.13. Section 22.4 of the Original Note Purchase Agreement shall be and is hereby amended by adding the following new paragraph at the end of such Section:

For all purposes under this Agreement, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent

Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

1.14. The definition of “Permitted Liens” set forth in Schedule A of the Original Note Purchase Agreement shall be and is hereby amended by (a) amending and restating clause (h) thereof to read as follows: “(h) customary Liens, including customary rights of setoff and Liens arising by operation of law, against deposits in favor of banks and other depository institutions arising in the ordinary course of business and not in connection with the incurrence of Indebtedness,” (b) deleting the word “and” at the end of clause (i) thereof, (c) redesignating clause (j) thereof as clause “(k)” and (d) inserting the following new clause (j) in proper sequence: “(j) Liens in favor of the Collateral Agent arising under the Pledge Agreement; and”.

1.15. The definition of “Additional or More Restrictive Covenant” in Section 9.10 of the Original Note Purchase Agreement is revised to amend the references therein to “contained in Section 10.6” to instead read “contained in this Agreement”.

1.16. Schedule A of the Original Note Purchase Agreement shall be and is hereby further amended by adding, or amending and restating, the following definitions, and inserting them in the proper alphabetical order:

“Alternate Trigger Event” means any of the following occurring at any time during the Covenant Relief Period: (a) the aggregate amount of unrestricted cash and Cash Equivalents held by the Company and its Subsidiaries shall be less than the Unrestricted Cash Threshold Amount or (b) the Revolving Credit Exposure is greater than $750,000,000.

“AMC Pledged Property” means any Pledged Property leased or operated by AMC Entertainment Holdings, Inc. or any of its Subsidiaries.

“Cash Equivalents” means (a) securities issued, guaranteed or insured by the United States or any of its agencies with maturities of not more than one year from the date acquired; (b) certificates of deposit with maturities of not more than one year from the date acquired issued by a United States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company has a short-term commercial paper rating of at least “A-2” or the equivalent by S&P or at least “P-2” or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the United States or any state thereof and rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940 which have net assets of at least $500,000,000 and at least 85% of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.

“Collateral Agent” means KeyBank National Association.

“Consolidated Tangible Net Worth” means the equity of the Company as determined in accordance with GAAP, less the total book value of all assets of the Company properly classified as

intangible assets under GAAP, 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, all as determined on a Consolidated basis.

“Covenant Relief Period” means the period beginning on the Second Amendment Effective Date and ending on the earlier of (a) April 1, 2021 and (b) provided no Default or Event of Default shall exist, the date on which the Company delivers a written notice to the holders of the Notes electing to terminate the Covenant Relief Period, together with an Officer’s Certificate evidencing, to the reasonable satisfaction of the Required Holders, that the Company would have been in compliance with the financial covenants contained in Section 10.6 and those incorporated pursuant to Section 9.10 at the end of the most recently completed fiscal quarter, even if the Covenant Relief Period had not been in effect for such fiscal quarter.

“Distribution” means, with respect to any Person, (a) 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, (b) 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, (c) the return of capital by such Person to its shareholders, partners, members or other owners as such or (d) 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 that the dividend or distribution of common stock of a Person shall not constitute a Distribution with respect to such Person.

“Equity Issuance” means the issuance and sale by any of the Company or its Subsidiaries of any equity securities of the Company or its Subsidiaries to any Person who is not the Company or one of its Subsidiaries, including pursuant to the exercise of options or warrants or pursuant to the conversion of any debt securities to equity.

“Excess Leverage Fee” is defined in Section 9.12.

“Excess Unrestricted Cash and Cash Equivalents” means, as of any date of calculation, the difference between (a) the aggregate amount of unrestricted cash and Cash Equivalents held by Company and its Subsidiaries on a Consolidated basis (with the Company directly or through the applicable Subsidiary having full access thereto and control thereof) in excess of $25,000,000, less (b) the aggregate principal amount of all Short-Term Unsecured Indebtedness; provided that in no event shall Excess Unrestricted Cash and Cash Equivalents be less than zero.

“Financial Covenant” means (a) during the Covenant Relief Period, any financial covenant or other material covenant that is contained in the Bank Credit Agreement and (b) without limiting the foregoing clause (a), any covenant (whether set forth as a covenant, undertaking, event of default, restriction, prepayment event or other such provision) that requires the Company and/or any Subsidiary to:

(1) maintain a specified level of net worth, shareholders’ equity, total assets, unencumbered assets, unencumbered properties, cash flow, net income, occupancy rate or lease term;

(2) maintain any relationship of any component of its capital structure to any other component thereof (including the relationship of indebtedness, subsidiary indebtedness, senior

indebtedness, secured indebtedness, unsecured indebtedness, or subordinated indebtedness to total capitalization, total assets, unencumbered assets or to net worth);

(3) maintain any measure of its ability to service its indebtedness (including exceeding any specified ratio of revenues, cash flow, operating income or net income to indebtedness, interest expense, rental expense, capital expenditures and/or scheduled payments of indebtedness);

(4) restricts the amount of distributions; or

(5) restrict the amount or type of its investments;

but in all cases excluding any such covenant that amounts to a negative pledge or a sale of assets limitation.

“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 8.7, 9.11(a), 9.12, 9.13(b), 12, 17.2 and 18 and any related definitions in this Schedule A, “holder” shall mean the beneficial owner of such Note whose name and address appears in such register.

“Intercreditor Agreement” is defined in Section 9.11(a).

“Investment” means, 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 that the term “Investment” shall not include (a) equipment, inventory and other tangible personal property acquired in the ordinary course of business, or (b) 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: (1) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (2) there shall be deducted in respect of each Investment any amount received as a return of capital; (3) 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 (1) may be deducted when paid; and (4) there shall not be deducted in respect of any Investment any decrease in the value thereof.

“Lease Modification” is defined in Section 9.11(a).

“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the Company or any Subsidiary from (a) any sale or other disposition (including by way of a merger, reorganization, consolidation or other business combination or any transaction or series of transactions that may have a similar effect) of any asset, excluding the first $100,000,000 of such proceeds to the extent such proceeds have been reinvested in assets used or useful in the business of the Company and its Subsidiaries, (b) the issuance of any Indebtedness, or (c) Equity Issuances (other than to the extent derived from Company’s dividend reinvestment programs), in each instance net of (1) direct costs incurred in connection therewith (including legal, accounting and investment banking fees, and

sales commissions), (2) taxes paid or payable as a result thereof and (3) in the case of any disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien on the related asset; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by the Company or any Subsidiary in or related to any disposition, issuance of Indebtedness or Equity Issuance.

“Net Equity Proceeds” means the aggregate consideration received by the Company and/or any of its Subsidiaries in respect of any Equity Issuance, net of (a) direct costs incurred in connection therewith (including legal, accounting and investment banking fees and sales commissions) and (b) taxes paid or payable as a result thereof; it being understood, that (1) “Net Equity Proceeds” shall include any cash received upon the sale or other disposition of any non-cash consideration received by the Company and/or any of its Subsidiaries in any Equity Issuance, and (2) “Net Equity Proceeds” shall not include cash proceeds that are applied within 30 days of the date of the related Equity Issuance to retire capital stock.

“Offered Amount” is defined in Section 9.13(b).

“Outstanding Amount” has the meaning set forth in the Bank Credit Agreement on the Second Amendment Effective Date.

“Pledge Agreement” is defined in Section 9.11(a).

“Pledge Trigger Event” means the occurrence of any of the following at any time during the Covenant Relief Period: (a) the aggregate amount of unrestricted cash and Cash Equivalents held by the Company and its Subsidiaries shall be less than the Unrestricted Cash Threshold Amount, (b) the Revolving Credit Exposure is greater than $750,000,000, or (c) the Company fails to collectively maintain at least one Investment Grade Rating from the three Rating Agencies.

“Pledged Properties” is defined in Section 9.11(a).

“Proposed Prepayment Date” is defined in Section 9.13(b).

“Required Value” mean, from time to time, an amount equal to no less than 150% of the aggregate of (a) Outstanding Amounts of all Loans, Letters of Credit and LC Disbursements due under the Bank Credit Agreement and (b) the aggregate outstanding principal amount of the Notes.

“Revolving Credit Exposure” has the meaning set forth in the Bank Credit Agreement on the Second Amendment Effective Date.

“Second Amendment” means the Second Amendment dated as of June 29, 2020 to this Agreement.

“Second Amendment Effective Date” means June 29, 2020.

“Short-Term Unsecured Indebtedness” means Unsecured Indebtedness which matures on or prior to the two-year anniversary of the applicable date of calculation.

“Unrestricted Cash Threshold Amount” means $550,000,000, provided that if the Revolving Credit Exposure at any time of calculation is less than $750,000,000, the Unrestricted Cash Threshold Amount shall be automatically reduced on a dollar-for-dollar basis by the difference between (a) $750,000,000 and (b) the Revolving Credit Exposure.

“Unsecured Indebtedness” means Indebtedness of the Company, on a Consolidated basis, which is not Secured Indebtedness; provided that any Liens granted pursuant to Section 9.11 or pursuant to Section 7.16 of the Bank Credit Agreement shall not result in the Indebtedness under this Agreement or under the Bank Credit Agreement being deemed Secured Indebtedness hereunder, with the Indebtedness under this Agreement and under the Bank Credit Agreement under such circumstances continuing to be deemed Unsecured Indebtedness for the purposes of this Agreement.


SECTION 2.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

2.1. To induce the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), the Company represents and warrants to the Noteholders that:

(a)this Amendment has been duly authorized by all necessary corporate or other action on the part of the Company and has been duly executed and delivered by the Company, and this Amendment and the Original Note Purchase Agreement, as amended by this Amendment, constitute the legal, valid and binding obligations, contracts and agreements of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;

(b)the execution and delivery of this Amendment by the Company and the performance by the Company thereof and of the Original Note Purchase Agreement, as amended by this Amendment, will not (1) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, organizational document, shareholders agreement or any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (3) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary;

(c)no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution and delivery of this Amendment by the Company or the performance thereof or of the Original Note Purchase Agreement, as amended by this Amendment, by the Company except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect and except for any Current Report on Form 8-K or similar informational filings which must be made with any Governmental Authority after the execution and delivery of this Amendment and with respect to which the failure to make such filings would not affect the validity of this Amendment;

(d)all obligations of the Company under the Original Note Purchase Agreement, as amended by this Amendment, shall rank at least pari passu in right of payment with all other present and future unsecured Indebtedness of the Company;

(e)on the date of this Amendment, no Subsidiary shall be a guarantor or otherwise liable, whether as a borrower or an additional or co-borrower or otherwise for or in respect of any Parity Indebtedness;

(f)On the date of this Amendment, after giving effect to this Amendment, all the representations and warranties contained in Section 5 of the Original Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by the Company on and as of the date hereof date (except (1) to the extent such representations and warranties expressly refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date (except as otherwise provided in clauses (2), (3) and (4) below), (2) that Schedules 5.4 and 5.10 to the Original Note Purchase Agreement are as set forth as Schedules 2 and 3, respectively, to this Amendment, (3) that Schedule 5.15 to the Original Note Purchase Agreement is as set forth as Schedule 4 to this Amendment (and as if the reference in Section 5.15(a) of the Original Note Purchase Agreement to “June 30, 2016” was instead to March 31, 2020”) and (4) the impact of the COVID-19 outbreak as described in the Company’s quarterly report on Form 10-Q filed with the SEC on May 11, 2020 shall be disregarded for purposes of its representations and warranties in the last two sentences of Section 5.3 of the Original Note Purchase Agreement;

(g)as of the date hereof and after giving effect to this Amendment, no Default or Event of Default has occurred which is continuing and no waiver of Default or Event of Default is in effect; and

(h)the Company is solvent.

SECTION 3.CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT.

3.1. Upon satisfaction of each and every one of the following conditions, this Amendment shall become effective as of the date first written above:

(a)executed counterparts of this Amendment, duly executed by the Company and the Required Holders, shall have been delivered to each holder of Notes or its special counsel;

(b)the representations and warranties of the Company set forth in Section 2 hereof are true and correct on and with respect to the date hereof and each holder of Notes or its special counsel shall have received an Officer’s Certificate to such effect;

(c)the Bank Credit Agreement shall have been, or concurrently shall be, amended in a manner not inconsistent with the amendments set forth herein, and a copy of such amendment shall have been, or concurrently shall be, delivered to each holder of Notes or its special counsel;

(d)each holder of the Notes or its special counsel shall have received an Officer’s Certificate identifying each Additional or More Restrictive Covenant that will be in effect on the date of this Amendment, including therein a verbatim statement of each such Additional or More Restrictive Covenant, together with any definitions incorporated therein;

(e)each holder of the Notes or its special counsel shall have received an opinion of legal counsel to the Company, in form and content satisfactory to the Required Holders to the effect that: (1) the Company is validly existing and in good standing in its state of formation and has all requisite entity power and authority to enter into this Amendment and perform its obligations hereunder and under the Original Note Purchase Agreement, as amended hereby; (2) this Amendment and the Original Note Purchase Agreement, as amended hereby, have been duly authorized, executed and delivered by the Company; (3) the transactions described in this Amendment and in the and Original Note Purchase Agreement, as amended hereby, will not constitute a default or breach under the terms of any material agreement or instrument listed by Company as an exhibit to its annual report on Form 10-K filed with the SEC for the fiscal quarter ended December 31, 2019 or as an exhibit to its quarterly report on Form 10-Q filed with the SEC for the fiscal quarter ended March 31, 2020; (4) this Amendment and the Original Note Purchase Agreement, as amended hereby, constitute the legal, valid and binding obligations, contracts and agreements of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally, and (5) such other matters, incident to the transactions contemplated hereby, as the Required Holders or special counsel to the holders of the Notes may reasonably request;

(f)each holder of the Notes shall have received, by payment in immediately available funds to the account of such holder set forth in the Purchaser Schedule, the amount set forth opposite such holder’s name in Schedule 1 attached hereto; and

(g)the Company shall have paid the fees and expenses of Schiff Hardin LLP, special counsel to the Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this Amendment.

SECTION 4.MISCELLANEOUS.

4.1This Amendment shall be construed in connection with and as part of the Original Note Purchase Agreement, and except as modified and expressly amended by this Amendment, all terms, conditions and covenants contained in the Original Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.

4.2. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment may refer to the Original Note Purchase Agreement without making specific reference to this Amendment but nevertheless all such references shall include this Amendment unless the context otherwise requires.

4.3. The descriptive headings of the various Sections or parts of this Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.

4.4. This Amendment shall he governed by and construed in accordance with the laws of the State of New York.

4.5. This Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement. Delivery of an executed counterpart of this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.

[Remainder of page intentionally left blank.]

EPR Properties


By	/s/ Mark A. Peterson

Its Executive Vice President

Accepted and Agreed to:

The Prudential Insurance Company of America

By: /s/ Julia Buthman

Vice President

The Gibraltar Life Insurance Co., Ltd.

By: Prudential Investment Management Japan

Co., Ltd., as Investment Manager

By: PGIM, Inc., as Sub-Adviser

By: /s/ Julia Buthman

Vice President

Pruco Life Insurance Company

By: /s/ Julia Buthman

Assistant Vice President

Prudential Retirement Insurance and Annuity Company

By: PGIM, Inc. (as Investment Manager)

By: /s/ Julia Buthman

Vice President

Ensign Peak Advisors, Inc.

Clifton Park Capital Management, LLC

By: /s/ Matthew D. Dall

Name: Matthew D. Dall

Title: Head of Credit Research

United Services Automobile Association

By: BlackRock Financial Management, Inc., as investment manager

By: /s/ R. Marshall Merriman

Name: R. Marshall Merriman

Title: Managing Director

USAA Life Insurance Company

By: BlackRock Financial Management, Inc., as investment manager

By: /s/ R. Marshall Merriman

Name: R. Marshall Merriman

Title: Managing Director

The Guardian Life Insurance Company of America

By: /s/ Brian Keating

Name: Brian Keating

Title: Senior Managing Director

The Ohio National Life Insurance Company

/s/ Brenda Kalb

Name: Brenda Kalb

Title: Vice President

Ohio National Life Assurance Corporation

/s/ Brenda Kalb

Name: Brenda Kalb

Title: Vice President

Fidelity & Guaranty Life Insurance Company

pursuant to powers of attorney now and hereafter granted to

BLACKSTONE ISG-I ADVISORS L.L.C.

By: Blackstone ISG-I Advisors L.L.C.

By: GSO Capital Advisors II LLC, as Sub-Advisers

By: /s/ Sean Cort

Name: Sean Cort

Title: Authorized Signatory

American Equity Investment Life Insurance Company

By: /s/ Sasha Kamper

Name: Sasha Kamper

Title: Authorized Signatory

American Family Life Insurance Company

By: /s/ David L. Voge

Name: David L. Voge

Title: Fixed Income Portfolio Manager

Americo Financial Life & Annuity Insurance Company

By: /s/ Gregory A. Hamilton

Name: Gregory A. Hamilton

Title: SVP & Chief Investment Officer

Missouri Employers Mutual Insurance Company

By: Conning, Inc., as Investment Manager

By: /s/ Samuel Otchere

Name: Samuel Otchere

Title: Director

5 Star Life Insurance Company

By: Conning, Inc., as Investment Manager

By: /s/ Samuel Otchere

Name: Samuel Otchere

Title: Director

USAble Life

By: Conning, Inc., as Investment Manager

By: /s/ Samuel Otchere

Name: Samuel Otchere

Title: Director

Fee Schedule



Noteholder	Fee






















TOTAL	$340,000

Subsidiaries of the Company and

Ownership of Subsidiary Stock

Real Properties

Existing Indebtedness of the Company and its Subsidiaries

PLEDGE AND SECURITY AGREEMENT

[________ __], 202_

RECITALS:

of the Notes, the Bank Agent, on behalf of the Banks, and the holders of the Notes agreed that the Collateral Agent would hold the Collateral granted under this Agreement for the ratable benefit of the Secured Parties and otherwise made the agreements set forth in the Intercreditor Agreement. Capitalized terms used herein and not otherwise defined herein, but defined in the Intercreditor Agreement, shall have the respective meanings set forth in the Intercreditor Agreement.

NOW, THEREFORE, in consideration of the foregoing, the Pledgors hereby agree with the Collateral Agent as follows:


1.	Grant of Pledge. As security for the punctual payment and performance in full when due of the Senior Indebtedness, each Pledgor does hereby grant to the Collateral Agent, for the ratable benefit of the Secured Parties, and pledge a continuing lien on, and security interest in, all of its right, title, and interest in and to the Collateral.


2.	Defined Terms. Unless otherwise defined herein or in the Credit Agreement as in effect on the date hereof or the Intercreditor Agreement, capitalized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC. The following terms shall have the following meanings:


(a)	Capital Stock. The term “Capital Stock” shall mean and include, collectively, all shares of capital stock (whether denominated as common or preferred stock), partnership, limited liability company, or membership interests, joint venture interests or other ownership interests in or equivalents of or in a Person (other than an individual), whether voting or non-voting.


(b)	CFC. The term “CFC” shall mean a Person that is a controlled foreign corporation under Section 957 of the Code.

(c)

Collateral. The term “Collateral” shall mean and include, collectively, all Pledged Interests owned by each Pledgor, together with (i) all interests, certificates (if any), options or rights of any nature whatsoever which may be issued or granted to or in respect of such Pledged Interests, (ii) all Distributions in respect thereof; (iii) all books, records, electronically stored data and information relating to such Pledged Interests and all rights of access to such books, records, and information; (iv) all additions to the Pledged Interests, all substitutions therefor and all replacements thereof; (v) all Voting Rights related thereto; (vi) all contract rights, general intangibles, claims, powers, privileges, benefits and remedies of relating to the foregoing; and (vii) all cash or non-cash Proceeds of any of the foregoing.


(d)	Issuer. The term “Issuer” shall have the meaning given to such term in the definition of “Pledged Interests” below.


(e)	Loan Agreements. The term “Loan Agreements” shall mean, individually and collectively, as the context so requires, the Credit Agreement and the Loan Documents (as defined therein) and the Note Purchase Agreement, the Notes and all instruments and other documents related thereto.


(f)	Permitted Liens. The term “Permitted Liens” shall mean Liens permitted under both clause (a) of the definition of Permitted Liens in the Credit Agreement and clause (a) of the definition of Permitted Liens in the Note Purchase Agreement.


(g)	Pledged Collateral Agreement. The term “Pledged Collateral Agreement” shall have the meaning given to such term in Section 4(c)(ii) below.

(h)

Pledged Interests. The term “Pledged Interests” shall mean and include, collectively, all Equity Interests owned by each Pledgor in any Subsidiary thereof which such Pledgor is required to pledge pursuant to the Loan Agreements (including, without limitation, each Subsidiary described in Schedule II hereof) (each, individually, an “Issuer” and, collectively, the “Issuers”), whether now existing or hereafter acquired or formed, as more particularly described in Schedule II hereof (including as such Schedule II may be supplemented from time to time by virtue of any Joinder Agreement or other supplement or amendment to this Agreement), and all Equity Interests in any successor corporation or interests or certificates of any successor limited liability company, partnership or other entity owned by each Pledgor formed by or resulting from any consolidation or merger in which any such Subsidiary thereof is not the surviving entity; provided, however, that to the extent applicable, Pledged Interests shall not include Equity Interests possessing more than 65% of the voting power or control of all classes of interests entitled to vote of any CFC to the extent such pledge would result in a material adverse tax consequence to such Pledgor.


(i)	Secured Parties. The term “Secured Parties” shall mean and include, collectively, the Collateral Agent, the Bank Agent, each Senior Lender and each Noteholder.


(j)	UCC. The term “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the applicable jurisdiction.

(k)

Voting Rights. The term “Voting Rights” shall mean all rights and interests under each of the operating agreements of each Issuer and each shareholders agreement, voting trust, proxy agreement, or similar agreement in respect of the Pledged Interests, including all management rights and rights to vote and give approvals, consents, decisions and directions and exercise any other control or similar right with respect to the Pledged Interests.


3.	Warranties and Representations. Each Pledgor warrants and represents to, and agrees with, Collateral Agent that:


(a)	Pledged Interests.


(i)	Schedule II attached hereto (as the same may be amended from time to time) correctly sets forth the percentage of the issued and outstanding shares of each class of the Capital Stock of any Issuer owned by each Pledgor;


(ii)	The Pledged Interests pledged by such Pledgor constitute all of the issued and outstanding shares of Capital Stock of each Issuer owned by such Pledgor, except to the extent provided in the definition of “Pledged Interests”, and such Pledgor

owns no securities convertible into or exchangeable for any shares of Capital Stock of any such Issuer that do not constitute Pledged Interests hereunder;

(iii)

Such Pledgor is and shall be the sole owner of, and has and shall have good and valid title to, its respective Pledged Interests as identified on Schedule II attached hereto (as the same may be amended from time to time), free and clear of all Liens, security interests and other encumbrances of every nature whatsoever, except (x) in favor of the Collateral Agent, for the benefit of the Secured Parties, and (y) Permitted Liens, and the Pledged Interests have not previously been assigned, sold, transferred, pledged or encumbered (except pursuant to this Agreement);


(iv)	All of the Pledged Interests held by such Pledgor have been duly and validly issued, and, if applicable, are fully paid and non-assessable, subject in the case of Pledged Interests constituting partnership interests or limited liability company interests or membership interests to future assessments required under applicable law and any applicable partnership or operating agreement;

(v)

With respect to any Pledged Interests of such Pledgor in an Issuer that is a limited liability company or partnership, (i) such Pledgor is a duly constituted member or partner of such Issuer pursuant to the limited liability company or partnership agreement of such Issuer, and (ii) such Pledged Interests are not credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC);


(vi)	True and complete copies of the organizational documents of each Issuer and any shareholders agreement, voting trust, proxy agreement, or similar agreement related thereto have been delivered by the Pledgors to Collateral Agent, and the same have not been further amended or modified in any respect whatsoever;

(vii)

With respect to any Pledged Interests of such Pledgor in an Issuer that is a corporation, such Pledged Interests (i) are “securities” within the meaning of Sections 8-102(a)(15) and 8-103 of the UCC, (ii) are “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) and (iii) are not credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC);


(viii)	With respect to any Pledged Interests of such Pledgor in an Issuer that is a corporation, such Pledged Interests are certificated; and ¹

(ix)

With respect to any Pledged Interests of such Pledgor in an Issuer that is a limited liability company or a limited partnership, the operating agreement or partnership agreement of such Issuer, as applicable, and, if such is the case, each certificate, if any, evidencing such Pledged Interests, state that such Pledged Interests are “securities” as such term is defined in Article 8 of the UCC as in effect in the Issuer's state of organization. ²

____________________________

¹If the Pledged Interests are not certificated at the time of the pledge and the Collateral Agent does not require that they become certificated, clause (viii) may be modified accordingly


(b)	Perfection.

(i)

No Pledged Interests are evidenced or represented by certificates except to the extent set forth on Schedule II attached hereto (as the same may be amended from time to time) and all such original certificates, if any, have been delivered to the Collateral Agent accompanied by instruments of transfer or assignment duly executed in blank, all in form and substance satisfactory to the Collateral Agent;

(ii)

No Pledged Interest consisting of partnership or limited liability company interests that is not evidenced or represented by a certificate constitutes a “security” for purposes of Article 8 of the UCC of the jurisdiction of organization of the Issuer of such Pledged Interests (except if and as otherwise noted in Schedule II, including any supplements or amendments thereto) and, except as has been obtained, the applicable organizational documents with respect to such Pledged Interest do not require the consent of the other shareholders, members, partners or other Persons to permit the Collateral Agent or its designees to be substituted for the applicable Pledgor as a shareholder, member, partner or other equity owner, as applicable, thereto;


(iii)	None of the Pledged Interests are dealt in or traded on securities exchanges or in securities markets, and none of the Pledged Interests by its terms expressly provides that it is an investment company security, and none of the Pledged Interests is held in a securities account (as defined in Section 8-501 of the UCC);

(iv)

The security interests granted to the Collateral Agent pursuant to this Agreement (i) upon completion of the filings and other actions specified on Schedule III attached hereto (as the same may be amended from time to time) (which, in the case of all filings and other documents referred to on said Schedule, have been delivered to the Collateral Agent completed and duly executed (if applicable)) will constitute valid perfected security interests in all of the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Senior Indebtedness, enforceable in accordance with the terms hereof against any creditors of such Pledgor and any Persons purporting to purchase any Collateral from such Pledgor (except as enforceability may be limited to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law)), and (ii) are prior to all other Liens on the Collateral (except Permitted Liens having priority by operation of law);


(v)	No Person other than the Collateral Agent has “control” (as defined in the UCC) or possession of all or any part of the Collateral except as permitted by the Loan Agreements;


(vi)	To the extent issued, the original certificates representing 100% of the Pledged Interests have been delivered to the Collateral Agent accompanied by instruments of transfer or assignment duly executed in blank by the Pledgor; and


(vii)	There is no agreement, and no Pledgor shall enter into any agreement or take any other action, that would restrict the transferability of any of the Collateral or

otherwise impair or conflict with such Pledgor’s obligations or the rights of the Collateral Agent hereunder (except for any such existing agreement containing transfer or similar restrictions, which restrictions have been waived to the Collateral Agent's satisfaction).


(c)	Authority; Enforceability.


(i)	Such Pledgor has the full right, power and authority to pledge its respective Collateral and to grant the security interest in the Collateral as herein provided;

(ii)

There are no restrictions on the transfer of any Collateral owned by such Pledgor to Collateral Agent hereunder or with respect to any subsequent transfer thereof or realization thereupon by Collateral Agent (except for any such restrictions that have been waived to the Collateral Agent's satisfaction), and each Pledgor hereby waives any restrictions under any Pledged Collateral Agreement or applicable Law or otherwise (other than under any applicable securities laws) which otherwise might apply to the exercise by the Collateral Agent of the rights and remedies provided in this Agreement so as to permit (i) such Pledgor to enter into and perform such Pledgor’s obligations under this Agreement and (ii) the Collateral Agent’s exercise of the Collateral Agent’s rights and remedies set forth hereunder;


(iii)	This Agreement constitutes the legal, valid and binding obligation of such Pledgor in accordance with the terms hereof and has been duly authorized, executed and delivered, 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;

(iv)

The execution and delivery of this Agreement will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any Pledgor is subject or any judgment, order, writ, injunction, license or permit applicable to such Pledgor or any indenture, mortgage, deed of trust, or other material agreement or instrument to which such Pledgor is a party or by which such Pledgor may be bound, or to which such Pledgor may be subject; and


(v)	There is no material litigation or administrative proceeding now pending, or to the best of its knowledge threatened in writing, against such Pledgor which could reasonably be expected to materially impair the ability of such Pledgor to pay or perform such Pledgor’s obligations hereunder or the exercise by the Collateral Agent of its rights and remedies hereunder.


4.	Pledgor’s Agreements. Each Pledgor agrees so long as the Senior Indebtedness remains outstanding that:


(a)	Delivery of certificates; Perfection.


(i)	Upon obtaining any additional Pledged Interests, any Capital Stock, any certificate (including any certificate representing a dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of such Capital

Stock of any Issuer, or any other property whether in addition to, in substitution of, as a conversion of, or in exchange for, any Pledged Interests, or otherwise in respect thereof, such Pledgor shall, in each case, accept the same in trust for the benefit of the Collateral Agent and promptly deliver to the Collateral Agent a supplement to this Agreement in the form of Exhibit C attached hereto (or such other form acceptable reasonably to the Collateral Agent) duly executed by such Pledgor, and take the actions required by this subsection (a) in respect of the additional Pledged Interests which are to be pledged pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in respect of such additional Pledged Interests. Each Pledgor hereby authorizes the Collateral Agent to attach each such pledge amendment to this Agreement and agrees that all Pledged Interests listed on any such supplement delivered to the Collateral Agent by any Pledgor shall for all purposes hereunder be considered Collateral;

(ii)

Any sums paid upon or in respect of the Pledged Interests upon the liquidation or dissolution of any Issuer shall be paid over to the Collateral Agent to be held by it hereunder as additional collateral security for the Senior Indebtedness, and in case any distribution of capital shall be made on or in respect of such Pledged Interests or any property shall be distributed upon or with respect to such Pledged Interests pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject to a perfected security interest in favor of the Collateral Agent or as permitted under the Loan Agreements, be delivered to the Collateral Agent to be held by it hereunder as additional collateral security for the Senior Indebtedness. If any sums of money or property so paid or distributed in respect of any Pledged Interests shall be received by such Pledgor, such Pledgor shall, until such money or property is paid or delivered to the Collateral Agent, unless otherwise subject to a perfected security interest in favor of the Collateral Agent or as permitted under the Loan Agreements, hold such money or property in trust for the Collateral Agent, segregated from other funds of such Pledgor, as additional collateral security for the Senior Indebtedness;

(iii)

Such Pledgor shall, promptly after the receipt thereof by or on behalf of a Pledgor, deliver to the Collateral Agent all certificates and instruments constituting or representing Pledged Interests. Prior to delivery to the Collateral Agent, all such certificates constituting or representing Pledged Interests shall be held in trust by such Pledgor separate from the property of such Pledgor for the benefit of the Collateral Agent pursuant hereto. All such certificates constituting or representing Pledged Interests shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, in form and substance reasonably satisfactory to the Collateral Agent;

(iv)

If any of the Pledged Interests are at any time not evidenced by certificates of ownership, then each applicable Pledgor shall, to the extent permitted by applicable Law and upon the request of the Collateral Agent, cause such pledge to be recorded on the equity holder register or the books of the issuer, cause the issuer thereof to execute an Acknowledgment and Consent in the form of Exhibit A attached hereto, execute customary pledge forms or other documents necessary or reasonably requested to complete the pledge, and give the Collateral Agent the right to transfer

such Pledged Interests under the terms hereof; provided that the Collateral Agent shall not exercise such transfer right unless an Event of Default exists; and

(v)

Such Pledgor shall cause any Pledged Interest that is issued by an Issuer that is a corporation and that is represented by a certificate to continue to be represented by a certificate (or, if such Pledged Interest is not represented by a certificate, to be represented by a certificate if so requested by the Collateral Agent) and such Pledgor shall take the actions required by Section 4(a)(iii) above with respect to such Pledged Interests and certificates.

(vi)

Such Pledgor shall not permit any Pledged Interests issued by an Issuer that is not a corporation to be (1) credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC), (2) dealt in or traded on securities exchanges or securities markets, (3) “investment company securities” within the meaning of Section 8-103 of the UCC, or (4) otherwise treated as a “security” for purposes of Article 8 of the UCC of the jurisdiction of organization of the Issuer of such Pledged Interests unless, the applicable Pledgor shall have given not less than ten (10) Business Day’s prior written notice to the Collateral Agent of such event and, concurrently with such event, the applicable Pledgor shall (A) in the case of (1) above, cause such securities account to be maintained with a securities intermediary that is reasonably acceptable to the Collateral Agent and deliver a control agreement with respect to such securities account in form and substance satisfactory to the Collateral Agent, and (B) in any other case of (2) - (4) above, (x) cause the organizational documents of such Issuer to be amended to provide that such Pledged Interest will be a “security” as defined in and governed by Article 8 of the Uniform Commercial Code, (y) if requested by the Collateral Agent, cause the applicable Issuer to issue certificates evidencing such Pledged Interests, and (z) satisfy the requirements of Section 4(a)(iii) above with respect to such Pledged Interests and certificates.


(b)	Maintenance of Collateral and Perfected Security Interest.

(i)

Each Pledgor shall keep the Collateral owned by it free and clear of all liens, encumbrances, attachments, security interest pledges and charges, other than in favor of Collateral Agent under this Agreement or Permitted Liens, shall maintain the security interests of the Collateral Agent created by this Agreement as perfected security interests having at least the priority described in Section 3(b)(iv), and shall defend such security interests against the claims and demands of all Persons whomsoever (other than a holder of a Permitted Lien), subject to the rights of such Pledgor under the Loan Agreements to dispose of the Collateral, in each case, at its own cost and expense;

(ii)

Except as permitted by the Loan Agreements, such Pledgor shall not sell, transfer, or otherwise dispose of the Collateral owned by it or any interest therein to any other Person. If any Collateral, or any part thereof, is sold, transferred or otherwise disposed of in violation of this Section 4(b)(ii), the security interest of the Collateral Agent shall continue in the Collateral notwithstanding such sale, transfer or other disposition, and such Pledgor will deliver any proceeds thereof to the Collateral Agent to be held as Collateral hereunder (it is acknowledged and agreed that the

delivery of any such proceeds shall not be deemed a waiver of any Event of Default arising as a result of the sale, transfer or other disposal of the Collateral in violation of this Section 4(b)(ii));


(iii)	If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall be promptly delivered to the Collateral Agent, duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement;

(iv)

Such Pledgor shall, at such Pledgor’s own expense, promptly execute all such instruments, documents and papers, and will do all such acts as Collateral Agent may reasonably request in writing from time to time to carry into effect the provisions and intent of this Agreement including, without limitation, the providing of notification in connection with book-entry securities or general intangibles, and the providing of instructions to the issuers of uncertificated securities, and will do all such other acts as Collateral Agent may reasonably request with respect to the perfection and protection of the pledge and security interest granted herein and the assignment effected hereby; and

(v)

Notwithstanding anything herein to the contrary, the Pledged Interests of any Issuer that is a corporation (i) will continue to be “securities” within the meaning of Sections 8-102(a)(15) and 8-103 of the Uniform Commercial Code as in effect in the Issuer's state of organization, (ii) will continue to be “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC as in effect in the applicable Issuer’s state of organization), (iii) will not be credited to a “securities account” (within the meaning of Section 8-501(a) of the UCC), and (iv) are not and will not be dealt in or traded on securities exchanges or securities markets, and the terms of the Pledged Interests are not and will not be “investment company securities” within the meaning of Section 8-103 of the UCC.


(c)	Governing Agreements.


(i)	Such Pledgor shall not without the prior written consent of Collateral Agent in each instance, which consent may be withheld, granted, or conditionally granted, in Collateral Agent’s reasonable discretion, vote the Collateral in which it holds an interest, in favor of or consent to any resolution or action which, as determined by the Collateral Agent in its reasonable discretion, would:


(1)	impose any restrictions upon the sale, transfer or disposition of the Collateral other than restrictions, if any, in existence on the date hereof or on the date such Pledged Interests become subject to this Agreement (and not created in contemplation hereof), the application of which is waived to the full satisfaction of Collateral Agent as to the Collateral; or


(2)	result in the issuance of any additional interest in any Issuer, or of any class of security, which issuance would reasonably be expected to materially and adversely affect the value of the Collateral or could

otherwise reasonably be expected to have a Material Adverse Effect; or


(3)	vest additional powers, privileges, preferences or priorities to any other class of interest in any Issuer to the detriment of the value of or rights accruing to the Collateral; or


(4)	result in an involuntary lien or encumbrance being placed upon or attaching to any of the Collateral which lien or encumbrance is not discharged within thirty (30) days (or such longer period as the Collateral Agent may agree in its sole discretion); or


(5)	materially and adversely affect the validity, perfection or priority of the Collateral Agent’s security interest in the Collateral or would otherwise reasonably be expected to have a Material Adverse Effect;

(ii)

Such Pledgor shall, if not prohibited by this Agreement or applicable law, comply with all of its obligations under any shareholders agreement, operating agreement, partnership agreement, voting trust, proxy agreement or other agreement or understanding (each a “Pledged Collateral Agreement”, and collectively, the “Pledged Collateral Agreements”) related to the Collateral to which it is a party and shall, if not prohibited by this Agreement or applicable law, enforce all of its rights thereunder; and


(iii)	Such Pledgor shall not itself or on behalf of any Issuer or the Borrower take any action or refrain from taking any action which would cause or result in a violation of any provisions of the Loan Agreements.


5.	Payments on Account of Collateral.

(a)

Unless an Event of Default shall have occurred and be continuing, each Pledgor shall be permitted to receive all Distributions paid in respect of its Collateral to the extent permitted under the Loan Agreements. Upon the occurrence and during the continuance of any Event of Default (unless the applicable Secured Parties have waived such Event of Default under each Loan Agreement), subject to terms of the Loan Agreements, (i) all Distributions due on account of the Collateral, whether or not such payments are ordinary and regular cash distributions, shall be paid to Collateral Agent or, at Collateral Agent’s option, to Collateral Agent’s nominee, and (ii) all Distributions received by any Pledgor consisting of cash, checks, and other near-cash items shall be held by such Pledgor in trust for the Collateral Agent, segregated from other funds of such Pledgor, and shall, forthwith upon receipt by such Pledgor, be turned over to the Collateral Agent in the exact form received by such Pledgor (duly indorsed by such Pledgor to the Collateral Agent, if required).

(b)

Each Pledgor hereby authorizes and instructs each Issuer that is the issuer of any Pledged Interests pledged by such Pledgor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Pledgor, and such Pledgor agrees that each Issuer shall be fully protected in so complying, and (ii) upon the occurrence and

during the continuance of an Event of Default, pay any dividends or other payments with respect to the Collateral directly to the Collateral Agent.


6.	Voting Rights.

(a)

Except during the continuance of an Event of Default, each Pledgor may exercise all Voting Rights subject to the terms of this Agreement. Upon the occurrence and during the continuance of an Event of Default, all rights of each Pledgor to exercise such Voting Rights shall cease and the Collateral Agent shall have the right to exercise, in person or by its nominees or proxies, all such Voting Rights assigned to it hereunder and the Collateral Agent shall exercise such Voting Rights in such manner as the Collateral Agent in its sole discretion shall deem to be in the best interests of the Secured Parties (subject to the terms of this Agreement and the other Loan Agreements and also provided that the Collateral Agent shall be liable for its gross negligence, bad faith and willful misconduct). Upon the occurrence and during the continuance of an Event of Default, each Pledgor shall effect the directions of the Collateral Agent in connection with any such exercise in accordance with this Agreement.

(b)

In connection with the Collateral Agent’s exercise of the Voting Rights, the Pledgors shall cause each Issuer to rely on a notice from the Collateral Agent stating that an Event of Default has occurred and is continuing under any Loan Agreement, in which event no further direction from any Pledgor shall be required to effect the assignment of Voting Rights hereunder from such Pledgor to the Collateral Agent, and such Issuer shall immediately permit the Collateral Agent to exercise all of the Voting Rights in respect of the business and affairs of such Issuer. If the applicable Event of Default is no longer continuing, such Pledgor shall again automatically have all of the rights to exercise the Voting Rights and the Collateral Agent promptly shall so notify such Pledgor and the applicable Issuer in writing in confirmation thereof.

(c)

Solely with respect to any action, decision, determination or election by any Issuer, Pledgor, or any of their respective partners or members that any of their membership interests or other equity interests constituting Collateral, as applicable, be, or cease to be, a “security” as defined in and governed by Article 8 of the UCC, and all other matters related to any such action, decision, determination or election (collectively, the “Article 8 Matters”), each Pledgor hereby irrevocably grants and appoints the Collateral Agent, so long as any Event of Default exists, as such Pledgor’s true and lawful proxy, for and in such Pledgor’s name, place and stead to vote the Pledged Interests, whether directly or indirectly, beneficially or of record, now owned or hereafter acquired, with respect to such Article 8 Matters. The proxy granted and appointed in this Section 6(c) shall include the right to sign such Pledgor’s name (as a member or other applicable equity holder) to any consent, certificate or other document relating to an Article 8 Matter and the Pledged Interests that applicable law may permit or require, to cause the Pledged Interests to be voted in accordance with the preceding sentence. Each Pledgor hereby represents and warrants that there are no other proxies and powers of attorney with respect to an Article 8 Matter and the Pledged Interests that such Pledgor may have granted or appointed that are still in effect. Other than as required herein for the benefit of the Collateral Agent, each Pledgor will not give a subsequent proxy or power of attorney or enter into any other voting agreement with respect to the Pledged Interests with respect to any Article 8 Matter and any attempt to do so with respect to an Article 8 Matter shall be void and of no effect.

The proxies and powers granted by the each Pledgor pursuant to this Agreement are coupled with an interest and are given to secure the performance of such Pledgor’s obligations.


7.	Rights After Event of Default.

(a)

Upon the occurrence and during the continuance of any Event of Default (unless Collateral Agent has waived such Event of Default by written instrument signed by a duly authorized officer of the Collateral Agent, the Collateral Agent shall have all of the rights and remedies of a secured party upon default under the UCC in addition to which the Collateral Agent may sell or otherwise dispose of the Collateral and/or enforce and collect the Collateral for application towards (but not necessarily in complete satisfaction of) the Senior Indebtedness in accordance with the provisions of the Intercreditor Agreement for further application pursuant to the Loan Agreement. Without limitation to the foregoing, upon the occurrence of during the continuance of an Event of Default, (i) the Collateral Agent shall have the right (A) to endorse, assign or otherwise transfer to or to register in the name of the Collateral Agent or any of its nominees or endorse for negotiation any or all of the Collateral, without any indication that such Collateral is subject to the security interest hereunder, (B) to receive any and all cash dividends, payments or other Proceeds paid in respect of the Collateral of each Pledgor and make application thereof in accordance with the Intercreditor Agreement, (C) to exchange uncertificated Pledged Interests for certificated Pledged Interests and to exchange certificated Pledged Interests for certificates of larger or smaller denominations, for any purpose consistent with this Agreement (in each case to the extent such exchanges are permitted under the applicable Pledged Collateral Agreements or otherwise agreed upon by the Issuer that is the issuer of such Pledged Interests), and (D) if requested by the Collateral Agent, to be (or have its nominee or assignee be) admitted by each Issuer as a member or limited partner of such limited liability company or partnership, and (ii) each Pledgor shall, if requested by the Collateral Agent, promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all such proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request (including stock powers registering any Pledged Interests in the name of the Collateral Agent or its nominee), and the Collateral Agent or its nominee may thereafter exercise (A) all voting, corporate and other rights pertaining to any Pledged Interests at any meeting of shareholders of the relevant issuer or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to any Pledged Interests as if it were the absolute owner thereof (including, without limitation, the right to exchange at its discretion any and all of any Pledged Interests upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other organizational structure of any Issuer, or upon the exercise by a Pledgor or the Collateral Agent of any right, privilege or option pertaining to such Pledged Interests, and in connection therewith, the right to deposit and deliver any and all of such Collateral with any committee, depositary, transfer Collateral Agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to the Pledgor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.


(b)	[intentionally omitted]

(c)

Unless any Collateral threatens to decline speedily in value, or is of a type customarily sold on a recognized market (in which event Collateral Agent shall give Pledgors such notice as may be practicable under the circumstances), Collateral Agent shall give Pledgors at least the greater of the minimum notice required by law, or ten (10) days, prior written notice of the date, time and place of any public sale thereof, or of the time after which any private sale or any other intended disposition is to be made.

(d)

Each Pledgor and the Collateral Agent acknowledges that, notwithstanding anything contained herein to the contrary, any exercise by Collateral Agent of Collateral Agent’s and any Secured Party’s rights upon the occurrence and during the continuance of an Event of Default will be subject to compliance by Collateral Agent and Secured Parties with the applicable statutes, regulations, ordinances, directives and orders of any federal, state, municipal or other governmental authority. Collateral Agent in its sole discretion at any such sale or in connection with any such disposition may restrict the prospective bidders or purchasers as to their number, nature of business, investment intention, or otherwise, including, without limitation a requirement that the persons making such purchases represent and agree to the satisfaction of Collateral Agent that they are purchasing the Collateral, or some portion thereof, for their own account, for investment and not with a view towards the distribution or a sale thereof, or that they otherwise fall within some lawful exemption from registration under applicable laws.

(e)

The proceeds of any collection or of any sale or disposition of any Collateral, or any portion thereof, held pursuant to this Agreement shall be applied in accordance with the Intercreditor Agreement. Borrower and any Pledgor that is a guarantor of or otherwise liable for any Senior Indebtedness shall remain liable to Collateral Agent and the Secured Parties for any deficiency remaining following such application.

(f)

The Collateral Agent may buy or otherwise acquire any part or all of the Collateral at any public sale or other disposition and if any part or all of the Collateral is of a type customarily sold or otherwise disposed of in a recognized market or is of the type which is the subject of widely-distributed standard price quotations, the Collateral Agent may buy or otherwise acquire at private sale or other disposition and may make payments thereof by any means. The Collateral Agent shall apply the cash proceeds actually received from any sale or other disposition in accordance with the Intercreditor Agreement. Only after such applications, and after payment by the Collateral Agent of any amount required by §9-608(a)(1)(C) or §9-615(a)(3) of the UCC, need the Collateral Agent account to the applicable Pledgor for any surplus.

(g)

Each Pledgor and the Collateral Agent recognizes that the Collateral Agent may be unable to effect a public sale or other disposition of the Pledged Interests by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “Securities Act”), federal banking laws, and other applicable Laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers. Each Pledgor agrees that any such private sales may be at prices and other terms less favorable to the seller than if sold at public sales and that such private sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Interests for the period of time necessary to permit the Issuer of such securities to register such securities for public sale under the

Securities Act, or such other federal banking or other applicable Laws, even if the applicable Issuer would agree to do so. Subject to the foregoing, the Collateral Agent agrees that any sale of the Pledged Interests shall be made in a commercially reasonable manner and in accordance with applicable securities laws, and each Pledgor agrees to use its best efforts to cause the Issuers of the Pledged Interests contemplated to be sold, to execute and deliver, and cause the directors and officers of such Issuer to execute and deliver, all at such Pledgor’s expense, all such instruments and documents, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of the Collateral Agent, advisable to exempt such Pledged Interests from registration under the provisions of the Securities Act, and to make all amendments to such instruments and documents which, in the opinion of the Collateral Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto. Each Pledgor further agrees to use its best efforts to cause such Issuer or Issuers to comply with the provisions of the securities or “Blue Sky” laws of any jurisdiction which the Collateral Agent shall designate and, if required, to cause such Issuer or Issuers to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of §11(a) of the Securities Act. In no event shall any Issuer be obligated to register any securities under the Securities Act or under any other federal or state securities laws.

(h)

Each Pledgor further agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make any sales of any portion or all of the Pledged Interests pursuant to this Section 7 valid and binding and in compliance with any and all applicable Laws (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended, the rules and regulations of the Securities and Exchange Commission applicable thereto and all applicable state securities or “Blue Sky” laws), regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Pledgor’s expense. Each Pledgor further agrees that a breach of any of the covenants contained in this Section 7 will cause irreparable injury to the Collateral Agent and the Secured Parties, that the Collateral Agent and the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in this Section 7 shall be specifically enforceable against such Pledgor by the Collateral Agent and each Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants.

Agreement, including as otherwise provided in the preceding sentence, all of the rights, remedies, powers, privileges and discretions included in this Section 8 may be exercised by Collateral Agent whether or not any of the Senior Indebtedness is then due and whether or not an Event of Default has occurred. The within designation and grant of power of attorney is coupled with an interest, is irrevocable until this Agreement is terminated by a written instrument executed by a duly authorized officer of Collateral Agent. The power of attorney shall not be affected by subsequent disability or incapacity of any Pledgor. Collateral Agent and Secured Parties shall not be liable for any act or omission to act pursuant to this Section 8, except for any act or omission to act which is in actual bad faith, willful misconduct or constituting the gross negligence of such party.


10.	Pledgor’s Consent and Waivers.

(a)

Each Pledgor agrees that Collateral Agent may enforce its rights as against such Pledgor, the Collateral, or as against any other party liable for the Senior Indebtedness, or as against any other collateral given for any of the Senior Indebtedness, in any order or in such combination as Collateral Agent may in its sole discretion determine, and each Pledgor hereby expressly waives all suretyship defenses and defenses in the nature thereof, agrees to the release or substitution of any collateral hereunder or otherwise, and consents to each and all of the terms, provisions and conditions of the other Loan Agreements. Each Pledgor further: (a) waives presentment, demand, notice and protest with respect to the Senior Indebtedness and the Collateral; (b) waives any delay on the part of Collateral Agent or any other Secured Party; (c) assents to any indulgence or waiver which Collateral Agent or any other Secured Party may grant or give any other Person liable or obliged to Collateral Agent or any other Secured Party for or on account of the Senior Indebtedness; (d) authorizes Collateral Agent and each other Secured Party to alter the obligations of any other person liable or obligated to Collateral Agent or such Secured Party for or on account of the Senior Indebtedness without notice to or further consent from such Pledgor; (e) agrees that no release of any property securing the Senior Indebtedness shall affect the

rights of Collateral Agent or any other Secured Party with respect to the Collateral hereunder which is not so released; and (f) to the fullest extent that it is not unlawful to do so, waives the right to notice and/or hearing, if it might otherwise be entitled thereto, prior to exercise of the Rights and Remedies upon and during the continuance of an Event of Default.

(b)

All rights of the Collateral Agent and the other Secured Parties hereunder, the grant of a security interest in the Collateral and all obligations of each Pledgor hereunder, shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Loan Agreements or any other agreement or instrument relating to any Loan Agreement, (b) any change in time, manner or place of payment of, or in any other term of, all or any of the Senior Indebtedness, or any other amendment or waiver of or any consent to any departure from the Note or any other agreement or instrument, (c) any exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to or departure from any guarantee, for all or any of the Senior Indebtedness, or (d) any other circumstance which might otherwise constitute a defense available to (other than the defense of indefeasible payment), or a discharge of, any Pledgor in respect of the Senior Indebtedness or in respect of this Agreement.

(c)

So long as this Agreement is in effect, each Pledgor irrevocably waives any and all of its rights under those provisions of the operating or partnership agreements of each applicable Issuer that (a) prohibit, restrict, condition or otherwise affect the grant hereunder of any lien on any of the Collateral or any enforcement action which may be taken in respect of any such lien or (b) otherwise conflict with the terms of this Agreement. To the extent that this provision is inconsistent with the terms of the operating or partnership agreement of any such Issuer, such operating or partnership agreement shall be deemed to be amended or waived so as to be consistent with the terms of this Section 10. Each Pledgor of any Pledged Interests of an Issuer that is a limited liability company or a partnership hereby irrevocably consents to the Collateral Agent or its nominee becoming a member of such limited liability company or a partner of such partnership (including any management rights appurtenant thereto) upon an exercise of remedies pursuant to Section 7 hereof.

11.

Collateral Agent May Assign. Each Pledgor agrees that upon any transfer of the entirety of the Collateral Agent's rights under this Agreement, Collateral Agent may deliver to the transferee of such rights the Collateral, who shall thereupon become vested with all powers and rights given to Collateral Agent in respect thereto, and Collateral Agent shall be thereafter forever relieved and fully discharged from any liability or responsibility in connection therewith.

12.


13.	WAIVER OF JURY TRIAL. EACH PLEDGOR, COLLATERAL AGENT AND THE SECURED PARTIES MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE

TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, COLLATERAL AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

14.

15.


16.	Miscellaneous.


(a)	Collateral Agent’s and Secured Parties’ Rights and Remedies may be exercised without resort to or regard to any other source of satisfaction of the Senior Indebtedness.

(b)

All of the agreements, obligations, undertakings, representations and warranties herein made by the Pledgors shall inure to the benefit of Collateral Agent and Secured Parties and their respective successors and assigns and shall bind each Pledgor and its successors and assigns; provided that no Pledgor shall have any right to (a) assign this Agreement or any interest herein, or (b) assign any interest in the Collateral or any part thereof, or otherwise pledge, encumber or grant any option with respect to the Collateral or any part thereof, or any cash or property held by each Pledgor as Collateral under this Agreement as expressly permitted under the Loan Agreements or hereunder.


(c)	Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be delivered in accordance with the provisions of §12.1 of the Credit Agreement.


(d)	This Agreement and all other Loan Agreements executed in connection herewith incorporate all discussions and negotiations between Pledgors and Collateral Agent

concerning the matters included herein and in such other Loan Agreements. No such discussions or negotiations shall limit, modify or otherwise affect the provisions hereof. No modification, amendment or waiver of any provisions of this Agreement or of any provision of any other agreement between the Pledgors and Collateral Agent shall be effective unless executed in writing by the party to be charged with such modification, amendment and waiver and, if such party be Collateral Agent, then by a duly authorized officer thereof. This Agreement shall be construed as a separate agreement with respect to each Pledgor and may be amended, modified, supplemented, waived or released with respect to any Pledgor without the approval of any other Pledgor and without affecting the obligations of any other Pledgor hereunder.

(e)

This Agreement and all other documents in Collateral Agent’s possession which relate to the Senior Indebtedness may be reproduced by Collateral Agent by any photographic, photostatic microfilm, microcard, miniature photographic, xerographic or similar process and, with the exception of instruments constituting the Collateral, Collateral Agent may destroy the original from which any document was so reproduced. Any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business) and any enlargement, facsimile or further reproduction shall be likewise admissible in evidence.


(f)	Captions in this Agreement are intended solely for convenience and shall not have any effect on the meaning or interest of any provisions hereof.


(g)	Each provision hereof shall be enforceable to the fullest extent not prohibited by applicable law. The invalidity and unenforceability of any provision(s) hereof shall not impair or affect any other provision(s) hereof which are valid and enforceable.

(h)

This Agreement may be executed in several counterparts, each of which when executed and delivered is an original, but all of which together shall constitute one instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart which is executed by the party against whom enforcement of such agreement is sought. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.


(i)	THIS AGREEMENT, EXCEPT AS OTHERWISE PROVIDED IN HEREIN, AND ANY DISPUTES ARISING FROM THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(j)

THE PLEDGORS AND THE COLLATERAL AGENT AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK (INCLUDING ANY FEDERAL COURT SITTING THEREIN). THE PLEDGORS AND THE COLLATERAL AGENT FURTHER ACCEPT, GENERALLY AND UNCONDITIONALLY, THE NON EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY RELATED APPELLATE COURT AND IRREVOCABLY (i) AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY WITH RESPECT TO THIS AGREEMENT AND (ii) WAIVE, TO THE FULLEST EXTENT PERMITTED BY

APPLICABLE LAW, ANY OBJECTION ANY OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH A COURT IS AN INCONVENIENT FORUM. THE PLEDGORS AND THE COLLATERAL AGENT FURTHER AGREE THAT SERVICE OF PROCESS IN ANY SUCH SUIT MAY BE MADE UPON ANY PLEDGOR BY MAIL AT THE BORROWER’S ADDRESS SPECIFIED IN SECTION 12.1 OF THE CREDIT AGREEMENT OR IN SECTION 17 OF THE NOTE PURCHASE AGREEMENT, AS APPLICABLE. IN ADDITION TO THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN, THE COLLATERAL AGENT MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL OR ASSETS OF THE PLEDGORS EXIST AND EACH PLEDGOR CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH PLEDGOR BY MAIL AT THE BORROWER’S ADDRESS SPECIFIED IN SECTION 12.1 OF THE CREDIT AGREEMENT OR IN SECTION 17 OF THE NOTE PURCHASE AGREEMENT, AS APPLICABLE. EACH PLEDGOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING CHOICE OF NEW YORK LAW WAS A MATERIAL INDUCEMENT TO THE COLLATERAL AGENT ENTERING INTO THIS AGREEMENT.

(k)

The initial Pledgors hereunder shall be each of the signatories hereto, which are listed on Schedule I attached hereto. From time to time after the date hereof, additional Subsidiaries of the Borrower may become parties hereto as additional Pledgors (each an “Additional Pledgor”) by executing a joinder agreement in the form of Exhibit B attached hereto or any other form as Collateral Agent may approve (the form attached as Exhibit B hereto or any other such form approved by Collateral Agent, a “Joinder Agreement”). Upon delivery of any such Joinder Agreement to Collateral Agent, notice of which is hereby waived by the Pledgors, each such Additional Pledgor shall be a Pledgor hereunder and shall be a party hereto as if such Additional Pledgor were an original signatory hereof and any such Joinder Agreement may amend or supplement Schedule II and/or Schedule III attached hereto to reflect such Additional Pledgor and any Collateral owned by it without the consent of any other Pledgor. Each Pledgor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Pledgor hereunder, or by any election by Collateral Agent not to cause any Subsidiary of Borrower to become an Additional Pledgor hereunder. This Agreement shall be fully effective as to any Pledgor that is or becomes a party hereto regardless of whether any other person becomes or fails to become or ceases to be a Pledgor hereunder.

[Signature Pages Follow.]

This Pledge and Security Agreement has been executed and delivered as an instrument under seal as of the date first written above.



	PLEDGORS:
	[___], a [___], as a Pledgor By:____________________________ Name:____________________________ Title:____________________________
	[___], a [___], as a Pledgor By:____________________________ Name:____________________________ Title:____________________________

COLLATERAL AGENT:

KEYBANK NATIONAL ASSOCIATION, as Collateral Agent

By: ___________________________

Name:

Title:

SCHEDULE I

Initial Pledgors

SCHEDULE II

Pledgors and Issuers



Pledgor	Issuer	Entity Form	Jurisdiction of Organization	Percentage Owned	Certificate Number (if applicable)

SCHEDULE III

Filings and other Actions


1.	[UCC-1 filings to be filed in the name of each Pledgor with the Secretary of State of its state of organization describing the Collateral as set forth herein.]


2.	[Delivery to the Collateral Agent of the certificates, if any, issued to the Pledgors as set forth in Schedule II hereto and representing 100% of the Equity Interests in each such Issuer pledged hereunder, together with an undated instrument of transfer or assignment covering any such certificates duly executed in blank by the applicable Pledgor.]

EXHIBIT A

ACKNOWLEDGMENT AND CONSENT

Each Issuer represents and warrants to the Collateral Agent that, as of the date hereof, (i) the Pledgor listed in Schedule II to the Agreement is the registered owner of the percentage of such Issuer's Pledged Interests, and possesses the percentage of the economic, management and voting rights in such Issuer, in each case as set forth on such Schedule II; (ii) such Issuer has no knowledge of any Lien or other security interest in the Pledged Interest (other than the Collateral Agent’s and any Permitted Liens) that has not been terminated on or prior to the date hereof; and (iii) the registered pledgee of the Pledged Interests on the books of such Issuer is KeyBank National Association, as Collateral Agent, and there is no other pledge currently registered on the books and records of such Issuer with respect to the Pledged Interests.

Executed and delivered within the State of New York as an instrument under seal as of [_________], 20__.

[Remainder of Page Intentionally Left Blank]

ISSUERS:

[___]

By: [___]

By: __________________________________

Name: __________________________________

Title: __________________________________

[___]

By: [___]

By: __________________________________

Name: __________________________________

Title: __________________________________

EXHIBIT B

FORM OF PLEDGE JOINDER AGREEMENT

[Date, 20__]

Ladies and Gentlemen:

and remedies as set forth in the Pledge Agreement, without any further consent from the Borrower or any other Person in respect of the Pledged Collateral.

[The][Each] New Issuer represents and warrants to the Collateral Agent that, as of the date hereof, (i) the Pledgor listed in Schedule I to this Joinder Agreement is the registered owner of the percentage of the such New Issuer's Pledged Interests, and possesses the percentage of the economic, management and voting rights in such New Issuer, in each case as set forth on such Schedule I; (ii) such New Issuer has no knowledge of any Lien or other security interest in such Pledged Interest (other than the Collateral Agent’s and any Permitted Liens) that has not been terminated on or prior to the date hereof; and (iii) the registered pledgee of such Pledged Interests on the books of such New Issuer is KeyBank National Association, as Collateral Agent, and there is no other pledge currently registered on the books and records of such New Issuer with respect to such Pledged Interests.

This Joinder Agreement shall constitute a Loan Agreement.

THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

[Signature Pages Follow]

IN WITNESS WHEREOF, the Additional Pledgor and the New Issuer have caused this Joinder Agreement to be executed and delivered by its duly authorized officer as of the date first above written.

[ADDITIONAL PLEDGOR]:

By: ____________________________

Name: ____________________________

Title: ____________________________

[NEW ISSUER]:

By: ____________________________

Name: ____________________________

Title: ____________________________


3.

AGREED TO AND ACCEPTED:

KEYBANK, NATIONAL ASSOCIATION,

as Collateral Agent

By: ____________________________

Name: ____________________________

Title: ____________________________

[Schedules to be attached]

SCHEDULE I



Pledgor	Issuer	Entity Form	Jurisdiction of Organization	Percentage Owned	Certificate Number (if applicable)

EXHIBIT C

FORM OF PLEDGE SUPPLEMENT

[_________], as Pledgor

By: ___________

Name: _______________

Title: ___________

[_________], as New Issuer

By: ___________

Name: _______________

Title: ___________

AGREED TO AND ACCEPTED:

KEYBANK, NATIONAL ASSOCIATION,

as Collateral Agent

By: ______________________

Name:

Title:

SCHEDULE I

PLEDGED INTERESTS



Pledgor	Issuer	Corporate Form	Jurisdiction of Organization	Percentage Owned	Certificate Number

INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT

WITNESSETH:

WHEREAS, pursuant to the Note Agreement the Initial Noteholders currently hold on the date hereof certain Senior Notes of the Borrower; and

WHEREAS, pursuant to the Guaranty Agreements the Guarantors are concurrently herewith guaranteeing or have guaranteed the Senior Indebtedness; and

WHEREAS, the Initial Noteholders and the Bank Agent desire to appoint KeyBank National Association as their agent with respect to Collateral and the Collateral Documents; and

1. Definitions.

“Bank Agent” shall mean KeyBank National Association, in its capacity as the agent for the Banks under the Credit Agreement, and its successors and assigns in that capacity.

“Borrower” shall mean EPR Properties, a Maryland real estate investment trust.

“Collateral Agent Obligations” shall mean all obligations of any Loan Party to pay, reimburse or indemnify the Collateral Agent for any Collateral Agent Expenses.

“Collateral Documents” shall mean the Pledge Agreements and each other agreement, document or instrument in effect on the date hereof or executed by any Loan Party in accordance with the

terms of the Credit Agreement or the Note Agreement after the date hereof under which such Loan Party has granted a lien upon or security interest in any property or assets to the Collateral Agent to secure all or any part of the Senior Indebtedness, all financing statements, certificates, documents and instruments relating thereto or executed or provided in connection therewith, each as amended, restated, supplemented or otherwise modified from time to time.

“Commitments” of any Bank shall mean the “Commitment” of such Bank as defined in the Credit Agreement.

“Credit Agreement” shall mean the Second Amended, Restated and Consolidated Credit Agreement, dated as of September 27, 2017, among the Borrower, the Banks, and the Bank Agent, as amended by that certain Amendment No. 1 to Second Amended, Restated and Consolidated Credit Agreement dated as of June __, 2020 and as it may be further amended, restated, supplemented or otherwise modified from time to time.