Filed pursuant to Rule 424(b)(5) under the Securities Act of 1933
Registration No. 333-87242
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED MAY 17, 2002)
2,000,000 SHARES
[CIBC graphic] ENTERTAINMENT PROPERTIES TRUST
9.50% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
---------------------------
We are offering 2,000,000 of our 9.50% Series A Cumulative Redeemable Preferred
Shares, par value $0.01 per share. We will receive all of the net proceeds from
the sale of the shares.
We will pay cumulative dividends on the Series A Preferred Shares from the date
of original issuance, in the amount of $2.375 per share each year, which is
equivalent to 9.50% of the $25.00 liquidation preference per share. Dividends on
the Series A Preferred Shares will be payable quarterly in arrears, beginning on
July 15, 2002. We may not redeem the Series A Preferred Shares before May 29,
2007 except to preserve our status as a real estate investment trust. On and
after May 29, 2007, we may, at our option, redeem the Series A Preferred Shares,
in whole or in part, by paying $25.00 per share, plus any accumulated, accrued
and unpaid dividends. The Series A Preferred Shares have no stated maturity,
will not be subject to any sinking fund or mandatory redemption and will not be
convertible into any of our other securities. Investors in the Series A
Preferred Shares will generally have no voting rights, but will have limited
voting rights if we fail to pay dividends for six or more quarters and in
certain other events.
We have applied to the New York Stock Exchange, Inc. for authorization to list
the Series A Preferred Shares under the symbol "EPRprA." We expect that trading
on the New York Stock Exchange will commence within 30 days after the initial
delivery of the Series A Preferred Shares.
INVESTING IN THE SERIES A PREFERRED SHARES INVOLVES CERTAIN RISKS. YOU SHOULD
CAREFULLY CONSIDER THE INFORMATION UNDER THE HEADING "RISK FACTORS" BEGINNING ON
PAGE 3 OF THE ACCOMPANYING PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
PER SHARE TOTAL
--------- -----------
Public offering price....................................... $ 25.00 $50,000,000
Underwriting discounts and commissions...................... $ 0.7875 $ 1,575,000
Proceeds, before expenses, to us............................ $24.2125 $48,425,000
---------------------------
The underwriters are severally underwriting the shares being offered. The
underwriters have an option to purchase up to an additional 300,000 Series A
Preferred Shares from us to cover over-allotments, if any.
The underwriters expect that the Series A Preferred Shares will be ready for
delivery in book-entry form through The Depository Trust Company on or about May
29, 2002.
BEAR, STEARNS & CO. INC.
PRUDENTIAL SECURITIES
BB&T CAPITAL MARKETS
FAHNESTOCK & CO. INC.
FERRIS BAKER WATTS
INCORPORATED
STIFEL, NICOLAUS & COMPANY
INCORPORATED
The date of this prospectus supplement is May 23, 2002
SUMMARY
This summary highlights information from this prospectus supplement. It may
not contain all of the information that is important to you in deciding whether
to invest in the shares. To understand this offering fully, you should read
carefully this entire prospectus supplement and the accompanying prospectus,
including the risk factors beginning on page 3 of the accompanying prospectus,
as well as the documents we have filed with the Securities and Exchange
Commission which are incorporated by reference. In this prospectus supplement
and the accompanying prospectus, unless otherwise indicated, "EPR," the
"Company," "we," "us" and "our" refer to Entertainment Properties Trust and its
subsidiaries. Unless otherwise indicated, all information in this prospectus
supplement assumes that the underwriters do not exercise the over-allotment
option described under the heading "Underwriting."
FORWARD-LOOKING STATEMENTS
With the exception of historical information, this prospectus supplement
and our reports filed under the Securities Exchange Act of 1934 ("Exchange Act")
and incorporated by reference in this prospectus supplement contain
forward-looking statements, such as those pertaining to the acquisition and
leasing of properties, our capital resources and our results of operations.
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," or other comparable terms, or by discussions of strategy,
plans or intentions. Forward-looking statements are necessarily dependent on
assumptions, data or methods that may be incorrect or imprecise. EPR's actual
financial condition, results of operations or business may vary materially from
those contemplated by these forward-looking statements and involve various
uncertainties, including but not limited to the factors described under "Risk
Factors" in the accompanying prospectus. We caution you not to place undue
reliance on any forward-looking statements, which reflect our analysis only.
ABOUT EPR
EPR was formed in 1997 as a Maryland real estate investment trust ("REIT")
to capitalize on opportunities created by the development of destination
entertainment and entertainment-related properties, including megaplex movie
theatre complexes. We completed an initial public offering of our common shares
on November 18, 1997.
EPR is a self-administered REIT. As of May 17, 2002, our real estate
portfolio consists of 31 megaplex theatre properties (including one joint
venture property) located in 12 states and one entertainment-themed retail
center ("ETRC") located in Westminster, Colorado, together with land parcels and
related properties adjacent to several of our theatre properties. Our theatre
properties are leased to prominent theatre operators, including AMC
Entertainment, Inc. ("AMC"), Muvico Entertainment LLC, Edwards Theatre Circuits,
a division of Regal Entertainment Group ("Edwards"), Consolidated Theatres and
Loews Cineplex Entertainment.
We are the only publicly-held REIT formed exclusively to invest in
entertainment-related properties leased to prominent operators. We believe
entertainment is an important sector of the retail real estate industry and
that, as a result of the Company's focus on properties in this sector and the
industry relationships of our management, we have a competitive advantage in
providing capital to operators of these types of properties.
Megaplex theatres typically have at least 14 screens with stadium-style
seating (seating with elevation between rows to provide unobstructed viewing)
and are equipped with amenities that significantly enhance the audio and visual
experience of the patron. We believe the development of megaplex theatres has
accelerated the obsolescence of many existing movie theatres by setting new
standards for moviegoers, who, in our experience, have demonstrated their
preference for the more attractive surroundings, wider
S-1
variety of films and superior customer service typical of megaplex theatres (see
"Operating risks in the entertainment industry may affect the ability of our
tenants to perform under their leases" and "Market prices for our securities may
be affected by perceptions about the financial health or share value of our
tenants or the performance of REIT stocks generally" under "Risk Factors" in the
accompanying prospectus).
We expect the development of megaplex theatres to continue in the United
States and abroad for the foreseeable future. With the development of the
stadium style megaplex theatre as the preeminent store format for cinema
exhibition, the older generation of flat-floor theatres has generally
experienced a significant downturn in attendance and performance. As a result of
the significant capital commitment involved in building these new properties and
the experience and industry relationships of our management, we believe we will
continue to have opportunities to provide capital to businesses that seek to
develop and operate these properties but would prefer to lease rather than own
the properties in order to minimize the impact of real estate ownership on their
balance sheets. We believe our ability to finance these properties will enable
us to continue to grow and diversify our asset base.
BUSINESS OBJECTIVES AND STRATEGIES
Our principal business strategy is to continue acquiring high-quality
properties leased to prominent entertainment and entertainment-related business
operators, generally under long-term triple-net leases that require the tenant
to pay substantially all expenses associated with the operation and maintenance
of the property.
Our business objective is to continue enhancing shareholder value by
achieving predictable and increasing funds from operations ("FFO") per share
through the acquisition of high-quality properties leased to entertainment and
entertainment-related business operators. We intend to achieve this objective by
continuing to execute the Growth Strategies, Operating Strategies and
Capitalization Strategies described below.
GROWTH STRATEGIES
FUTURE PROPERTIES
We intend to continue pursuing acquisitions of high-quality
entertainment-related properties from operators with a strong market presence.
As a part of our growth strategy, we will consider developing additional
megaplex theatre properties and developing or acquiring ETRCs and single-tenant,
out-of-home, location-based entertainment and entertainment-related properties.
OPERATING STRATEGIES
LEASE RISK MINIMIZATION
To avoid initial lease-up risks and produce a predictable income stream, we
typically acquire single-tenant properties that are leased under long-term
leases. We believe our willingness to make long-term investments in properties
offers tenants financial flexibility and allows tenants to allocate capital to
their core businesses.
LEASE STRUCTURE
We typically structure leases on a triple-net basis under which the tenants
bear the principal portion of the financial and operational responsibility for
the properties. During each lease term and any renewal periods, the leases
typically provide for periodic increases in rent and/or percentage rent based
upon a percentage of the tenant's gross sales over a pre-determined level.
S-2
TENANT RELATIONSHIPS
We intend to continue developing and maintaining long-term working
relationships with theatre, restaurant and other entertainment-related business
operators and developers by providing capital for multiple properties on a
national or regional basis, thereby enhancing efficiency and value to those
operators and to the Company.
PORTFOLIO DIVERSIFICATION
We will endeavor to further diversify our asset base by property type,
geographic location and tenant. In pursuing this diversification strategy, we
will target theatre, restaurant, retail and other entertainment-related business
operators which management views as leaders in their market segments and which
have the financial strength to compete effectively and perform under their
leases with us.
CAPITALIZATION STRATEGIES
USE OF LEVERAGE; DEBT TO TOTAL CAPITALIZATION
We seek to enhance shareholder return through the use of debt, commonly
referred to as "leverage" (see "Risk Factors -- "There is risk in using debt to
fund property acquisitions"). In addition, we have issued and may in the future
seek to issue additional equity as circumstances warrant and opportunities to do
so become available. We expect to maintain a debt to total capitalization ratio
(i.e., total debt of the Company as a percentage of shareholders' equity plus
total debt) of approximately 50% to 55%.
JOINT VENTURES
We will examine and pursue potential joint venture opportunities with
institutional investors or developers if they are considered to add value to our
shareholders. We may employ higher leverage in joint ventures (see "Risk
Factors -- Joint ventures may limit flexibility with jointly held investments").
PAYMENT OF REGULAR DISTRIBUTIONS
We have paid and expect to continue paying quarterly dividend distributions
to our shareholders. Among the factors the Board of Trustees considers in
setting our common share dividend rate are the applicable REIT rules and
regulations that apply to distributions, the Company's results of operations,
including FFO per share, and the Company's Cash Available for Distribution. We
expect to periodically increase distributions on our common shares as FFO and
Cash Available for Distribution increase and as other considerations and factors
warrant (see "Risk Factors -- We cannot assure you we will continue paying
dividends at historical rates"). The Series A Preferred Shares will have a fixed
dividend rate of 9.50% per annum.
PROPERTIES
The following table lists the Company's properties, their locations,
acquisition dates, number of theatre screens, number of seats, gross square
footage, and the tenant. Except as otherwise noted, all of the real estate
investments listed below are owned or ground leased directly by the Company.
ACQUISITION BUILDING
PROPERTY LOCATION DATE SCREENS SEATS (GROSS SQ. FT) TENANT
-------- ----------------- ----------- ------- ------- -------------- ---------------
MEGAPLEX THEATRE PROPERTIES
Grand 24(3).................. Dallas, TX 11/97 24 5,067 98,175 AMC
Mission Valley 20(1)(3)...... San Diego, CA 11/97 20 4,361 84,352 AMC
Promenade 16(3).............. Los Angeles, CA 11/97 16 2,860 129,822 AMC
Ontario Mills 30(3).......... Los Angeles, CA 11/97 30 5,469 131,534 AMC
Lennox 24(1)(3).............. Columbus, OH 11/97 24 4,412 98,261 AMC
West Olive 16(3)............. St. Louis, MO 11/97 16 2,817 60,418 AMC
S-3
ACQUISITION BUILDING
PROPERTY LOCATION DATE SCREENS SEATS (GROSS SQ. FT) TENANT
-------- ----------------- ----------- ------- ------- -------------- ---------------
Studio 30(3)................. Houston, TX 11/97 30 6,032 136,154 AMC
Huebner Oaks 24(3)........... San Antonio, TX 11/97 24 4,400 96,004 AMC
First Colony 24(1)(6)........ Houston, TX 11/97 24 5,098 107,690 AMC
Oakview 24(6)................ Omaha, NE 11/97 24 5,098 107,402 AMC
Leawood Town Center 20(6).... Kansas City, MO 11/97 20 2,995 75,224 AMC
Gulf Pointe 30(2)(6)......... Houston, TX 2/98 30 6,008 130,891 AMC
South Barrington 30(6)....... Chicago, IL 3/98 30 6,210 130,891 AMC
Cantera 30(2)(5)............. Chicago, IL 3/98 30 6,210 130,757 AMC
Mesquite 30(2)(6)............ Dallas, TX 4/98 30 6,008 130,891 AMC
Hampton Town Center 24(6).... Norfolk, VA 6/98 24 5,098 107,396 AMC
Raleigh Grand 16(4).......... Raleigh, NC 8/98 16 2,596 51,450 Consolidated
Pompano 18(4)................ Pompano Beach, FL 8/98 18 3,424 73,637 Muvico
Paradise 24(6)............... Davie, FL 11/98 24 4,180 96,497 Muvico
Boise Stadium(1)(4).......... Boise, ID 12/98 20 4,734 140,300 Edwards
Aliso Veijo 20(6)............ Los Angeles, CA 12/98 20 4,352 98,557 Edwards
Westminster 24(7)............ Westminster, CO 6/99 24 4,812 107,000 AMC
Woodridge 18(2)(8)........... Woodridge, IL 6/99 18 4,343 80,600 Loews
Tampa Palms 20(8)............ Tampa, FL 6/99 20 4,200 83,000 Muvico
Palm Promenade 24(8)......... San Diego, CA 1/00 24 4,577 88,610 AMC
Crossroads 20(8)............. Raleigh, NC 1/00 20 3,936 77,475 Consolidated
Elmwood Palace 20(9)......... New Orleans, LA 3/02 20 4,357 90,391 AMC
Clearview Palace 12(9)....... New Orleans, LA 3/02 12 2,479 70,000 AMC
Hammond Palace 10(9)......... New Orleans, LA 3/02 10 1,531 39,850 AMC
Houma Palace 10(9)........... New Orleans, LA 3/02 10 1,871 44,450 AMC
WestBank Palace 16(9)........ New Orleans, LA 3/02 16 3,176 71,607 AMC
--- ------- ---------
SUBTOTAL MEGAPLEX
THEATRES............... 668 132,711 2,969,286
=== ======= =========
RETAIL AND RESTAURANT
PROPERTIES
Westminster Promenade........ Westminster, CO 10/98 -- -- 140,000 Multi-Tenant
Pompano Kmart(8)............. Pompano Beach, FL 11/98 -- -- 80,540 Kmart
Nickels Restaurant(8)........ Pompano Beach, FL 11/98 -- -- 5,600 Nickels
On-The-Border(8)............. Dallas, TX 1/99 -- -- 6,580 Brinkers
Bennigan's(8)................ Houston, TX 5/00 -- -- 6,575 S & A
Bennigan's(8)................ Dallas, TX 5/00 -- -- 6,575 S & A
Texas Land & Cattle(8)....... Houston, TX 5/00 -- -- 6,600 Tx.C.C., Inc.
Texas Roadhouse(8)........... Dallas, TX 1/99 -- -- 6,000 TX Roadhouse
Roadhouse Grill(8)........... Atlanta, GA 8/00 -- -- 6,850 Roadhouse Grill
--- ------- ---------
Subtotal............ 265,320
---------
TOTAL.................... 668 132,711 3,234,606
=== ======= =========
---------------
(1) Third party ground leased property. Although the Company is the tenant under
the ground leases and has assumed responsibility for performing the
obligations thereunder, pursuant to the Leases, the theatre tenants are
responsible for performing the Company's obligations under the ground
leases.
(2) In addition to the theatre property itself, the Company has acquired land
parcels adjacent to the theatre property, which the Company has or intends
to ground lease or sell to restaurant or other entertainment themed
operators.
S-4
(3) Property is included as security for a $105 million mortgage facility.
(4) Property is included as security for a $20 million mortgage facility.
(5) Property is included in the Atlantic-EPR joint venture.
(6) Property is included as security for a $125 million mortgage facility.
(7) Property is included as security for a $17 million mortgage.
(8) Property is included as security for a $75 million credit facility.
(9) Property is included as security for a $50 million credit facility.
OFFICE LOCATION
Our executive offices are located at 30 West Pershing Road, Suite 201,
Kansas City, Missouri 64108, and our telephone number is (816) 472-1700. The
office occupies approximately 5,200 square feet with an initial rent of $107,856
subject to annual escalators.
TENANTS AND LEASES
As of March 31, 2002, our existing leases on megaplex theatres provide for
aggregate annual rentals of approximately $64.4 million (on a consolidated
basis, excluding one joint venture property), or an average annual rental of
approximately $2.1 million per property. The leases have an average remaining
base term lease life of 13.9 years and may be extended for predetermined
extension terms at the option of the tenant. The leases are typically triple-net
leases that require the tenant to pay substantially all expenses associated with
the operation of the properties, including taxes, other governmental charges,
insurance, utilities, service, maintenance and any ground lease payments.
RECENT DEVELOPMENTS
In March 2002, we acquired, through our subsidiary EPT Gulf States, LLC,
theatre real estate assets consisting of 5 megaplex movie theatres with an
aggregate of 68 screens in the New Orleans, Louisiana metropolitan area from 5
limited liability companies doing business as Gulf States Theatres. The purchase
price included the issuance of $15 million in preferred interests in EPT Gulf
States, LLC which pay a 10% annual return and are exchangeable for our common
shares at an exchange rate of $17.50 per unit. The sellers have registration
rights with respect to the shares. EPR has guaranteed payment of the 10% return.
Following the solicitation of bids from several national theatre operators, Gulf
States entered into an agreement with AMC to acquire the non-real estate assets
and operations related to the theatres, and we entered into long-term net leases
of the theatres to AMC. Effective May 3, 2002, EPT Gulf States, LLC, through its
wholly-owned subsidiary, granted mortgages on the Gulf States theatres to a
lender as security for a $50 million revolving credit facility which is
guaranteed by EPR.
In February 2002, we issued 2,300,000 common shares in a follow-on offering
for net proceeds of approximately $42.9 million. The net proceeds of the
offering are being used for general corporate purposes, including the
acquisition of properties.
S-5
THE OFFERING
Issuer........................ Entertainment Properties Trust
Securities Offered............ 2,000,000 9.50% Series A Cumulative Redeemable
Preferred Shares (the "Series A Preferred
Shares") (2,300,000 shares if the underwriters'
over-allotment option is exercised in full).
Dividends..................... Dividends are cumulative from the date of
original issue and are payable quarterly in
arrears on or about the 15th day of January,
April, July and October of each year, when and
as declared, beginning on July 15, 2002. We
will pay cumulative dividends on the Series A
Preferred Shares at the fixed rate of $2.375
per share each year, which is equivalent to
9.50% of the $25.00 per share liquidation
preference. The first dividend we pay on July
15, 2002 will be for less than a full quarter.
Dividends on the Series A Preferred Shares will
continue to accumulate even if any of our
agreements prohibit the current payment of
dividends, we do not have earnings or funds
legally available to pay such dividends, or we
do not declare the payment of dividends.
Liquidation Preference........ $25.00 per Series A Preferred Share, plus an
amount equal to accumulated, accrued and unpaid
dividends, whether or not declared, if we
liquidate, subject to the rights of creditors
and any future senior security holders.
Optional Redemption........... The Series A Preferred Shares are not
redeemable prior to May 29, 2007, except in
limited circumstances relating to the
preservation of our qualification as a REIT. On
and after May 29, 2007, the Series A Preferred
Shares will be redeemable at our option for
cash, in whole or from time to time in part, at
a price per share equal to the liquidation
preference, plus accumulated, accrued and
unpaid dividends, if any, to the redemption
date.
Ranking....................... The Series A Preferred Shares will rank senior
to our common shares, and on a parity with
other parity securities we may issue in the
future, in each case with respect to the
payment of distributions and amounts upon
liquidation, dissolution or winding up.
Voting Rights................. Holders of the Series A Preferred Shares
generally have no voting rights. However, if
dividends on the Series A Preferred Shares have
not been paid for six or more quarterly periods
(whether or not consecutive), the holders of
the Series A Preferred Shares and the holders
of all other shares of beneficial interest of
any class or series ranking on a parity with
the Series A Preferred Shares and having like
voting rights (voting together as a single
group) will be entitled to elect two additional
trustees to our Board of Trustees to serve
until all unpaid dividends have been paid or
declared and set apart for payment. In
addition, certain material and adverse changes
to the terms of the Series A Preferred Shares
cannot be made without the affirmative vote of
holders of at least 66 2/3% of the outstanding
Series A Preferred Shares and the holders of
all
S-6
other shares of beneficial interest of any
class or series ranking on a parity with the
Series A Preferred Shares and having like
voting rights (voting together as a single
group).
Ownership Limit............... To maintain our qualification as a REIT for
federal income tax purposes and for other
purposes, no person or entity may acquire more
than 9.8% of the number or aggregate value of
all of our outstanding common and preferred
shares.
Listing....................... We have applied to the New York Stock Exchange,
Inc. (the "NYSE") for authorization to list the
Series A Preferred Shares for trading on the
NYSE (expected ticker symbol: "EPRprA") We
expect that trading on the NYSE will commence
within 30 days after the initial delivery of
the Series A Preferred Shares.
Form.......................... The Series A Preferred Shares will be issued
and maintained in book-entry form registered in
the name of the nominee of The Depository Trust
Company except under limited circumstances.
Use of Proceeds............... The net proceeds from this offering will be
used for general corporate purposes, including
funding future acquisitions of additional
properties and/or repayment of debt.
For additional information regarding the terms of the Series A Preferred
Shares, see "Description of Series A Cumulative Redeemable Preferred Shares"
beginning on page S-17.
S-7
SELECTED FINANCIAL DATA
This table includes selected historical financial data of EPR. You should
read carefully the consolidated financial statements and schedule included in
EPR's annual report on Form 10-K for the year ended December 31, 2001, and the
unaudited consolidated financial statements included in EPR's quarterly report
on Form 10-Q for the three months ended March 31, 2002. The selected financial
data in this Section are not intended to replace the consolidated financial
statements and schedule included in our annual report on Form 10-K for the year
ended December 31, 2001 or the unaudited financial statements included in our
quarterly report on Form 10-Q for the three months ended March 31, 2002, each of
which is incorporated by reference herein. Figures are in thousands except per
share data.
THREE MONTHS
FOR THE YEARS ENDED DECEMBER 31, ENDED
---------------------------------------------------- MARCH 31,
OPERATING DATA 1997 1998 1999 2000 2001 2002
-------------- -------- -------- -------- -------- -------- ------------
Rental revenue....................................... $ 1,887 $ 35,031 $ 48,319 $ 53,287 $ 54,667 $ 15,796
Depreciation and amortization........................ 659 7,280 9,982 10,460 10,449 2,898
Income from operations............................... 855 25,699 36,158 40,977 41,711 12,305
Interest expense (income)............................ (587) 6,461 13,278 18,909 20,334 5,733
Equity in income from joint ventures................. -- -- 333 2,104 2,203 375
Net income........................................... $ 1,442 $ 19,238 $ 23,213 $ 24,172 $ 23,580 $ 6,877
Net income per common share:
Basic.............................................. $ 0.10 $ 1.39 $ 1.60 $ 1.63 $ 1.60 $ 0.43
Diluted............................................ 0.10 1.39 1.60 1.63 1.60 0.42
Weighted average number of common shares outstanding:
Basic.............................................. 13,800 13,802 14,516 14,786 14,715 16,119
Diluted............................................ 13,860 13,880 14,552 14,810 14,783 16,396
Cash dividends declared per common share............. $ 0.18 $ 1.60 $ 1.68 $ 1.76 $ 1.80 $ 0.475
THREE MONTHS
FOR THE YEARS ENDED DECEMBER 31, ENDED
---------------------------------------------------- MARCH 31,
BALANCE SHEET DATA 1997 1998 1999 2000 2001 2002
------------------ -------- -------- -------- -------- -------- ------------
Net real estate investments.......................... $213,812 $455,997 $478,706 $472,795 $530,280 $580,724
Total assets......................................... 259,488 464,371 516,291 513,534 583,351 638,763
Dividends payable.................................... 2,495 5,545 6,273 6,479 6,659 8,125
Long-term debt....................................... 0 206,037 238,737 244,547 314,766 313,467
Total liabilities.................................... 8,262 215,809 249,904 252,915 325,223 323,851
Minority interest in consolidated subsidiary......... -- -- -- -- -- 15,070
Common shareholders' equity.......................... 251,226 248,562 266,387 260,619 258,128 299,842
S-8
RISK FACTORS
Your investment in the Series A Preferred Shares will involve certain
risks. You should carefully consider the information under the heading "Risk
Factors," beginning on page 3 of the accompanying prospectus, and all other
information included in or incorporated by reference into this prospectus
supplement and the accompanying prospectus before deciding whether an investment
in the Series A Preferred Shares is suitable for you.
USE OF PROCEEDS
We expect to receive net proceeds from the sale of the Series A Preferred
Shares of approximately $48,173,500 ($55,473,250 if the underwriters'
over-allotment option is exercised in full) after deducting the underwriting
discounts and commissions and estimated offering expenses. We intend to use the
net proceeds for general corporate purposes, including funding future
acquisitions of additional properties and/or repayment of debt.
Pending application of net proceeds, we expect to invest net proceeds in
interest-bearing accounts and short-term interest-bearing securities which are
consistent with our qualification as a REIT.
S-9
CAPITALIZATION
The following table sets forth our capitalization as of March 31, 2002 and
as adjusted to give effect to the issuance and sale of the 2,000,000 Series A
Preferred Shares offered by this prospectus supplement (assuming no exercise of
the underwriters' over allotment option). This information should be read in
conjunction with, and is qualified in its entirety by, the consolidated
financial statements and schedule and notes thereto included in our quarterly
report on Form 10-Q for the three months ended March 31, 2002 incorporated by
reference in this prospectus supplement.
MARCH 31, 2002
----------------------
ACTUAL AS ADJUSTED
-------- -----------
(DOLLARS IN THOUSANDS)
Long term debt.............................................. $313,467 $313,467
Minority interest........................................... 15,070 15,070
Shareholders' Equity
Common shares, $0.01 par value, 50,000,000 shares
authorized, 17,577,877 shares issued...................... 176 176
Preferred shares, $0.01 par value, 5,000,000 shares
authorized, 0 shares issued (2,000,000 shares issued as
adjusted)................................................. -- 20
Additional paid-in capital.................................. 322,392 370,540
Treasury shares, at cost, 472,200 shares.................... (6,533) (6,533)
Loans to shareholders....................................... (3,525) (3,525)
Non-vested shares........................................... (926) (926)
Distributions in excess of net income....................... (11,742) (11,742)
-------- --------
Total shareholders' equity.................................. 299,842 348,010
-------- --------
TOTAL CAPITALIZATION........................................ $628,379 $676,547
======== ========
S-10
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED SHARE DIVIDENDS
The following table describes the ratio of earnings to fixed charges of EPR
and the ratio of such earnings to the dividends payable on the Series A
Preferred Shares.
YEARS ENDED DECEMBER 31 THREE MONTHS
------------------------------------ ENDED
1997 1998 1999 2000 2001 MARCH 31, 2002
---- ---- ---- ---- ---- --------------
Ratio of earnings to fixed
charges(1)...................... N/A 3.7 2.6 2.2 2.0 2.1
Ratio of earnings to combined
fixed charges and Series A
Preferred Share dividends....... -- -- -- -- 1.7 1.8
---------------
(1) The following computations were made in preparing this table:
YEARS ENDED DECEMBER 31 THREE MONTHS
---------------------------------------------- ENDED
1997 1998 1999 2000 2001 MARCH 31, 2002
------ ------- ------- ------- ------- --------------
(DOLLARS IN THOUSANDS)
FIXED CHARGES
Net interest expense......... $ -- $ 6,461 $13,278 $18,909 $20,334 $ 5,733
Add: preference dividend of
consolidated subsidiary.... -- -- -- -- -- 70
Add: interest income......... -- 149 160 247 268 217
Add: capitalized interest.... -- 397 476 664 881 255
------ ------- ------- ------- ------- -------
TOTAL FIXED CHARGES..... $ -- $ 7,007 $13,914 $19,820 $21,483 $ 6,275
====== ======= ======= ======= ======= =======
EARNINGS
Net income before minority
interest in and income from
joint venture.............. $1,442 $19,238 $22,880 $22,068 $21,377 $ 6,572
Add: fixed charges........... -- 7,007 13,914 19,820 21,483 6,275
Add: cash distributions from
joint venture.............. -- -- 411 1,442 1,848 456
Subtract: preference dividend
of consolidated
subsidiary................. -- -- -- -- -- (70)
------ ------- ------- ------- ------- -------
TOTAL EARNINGS.......... $1,442 $25,848 $36,729 $42,666 $43,827 $13,233
====== ======= ======= ======= ======= =======
ADDITIONAL FEDERAL INCOME TAX CONSEQUENCES
REDEMPTION OF SERIES A PREFERRED SHARES
Redemption of Series A Preferred Shares will be treated under Section 302
of the Code as a distribution taxable as a dividend (to the extent of the
Company's current and accumulated earnings and profits) at ordinary income rates
unless the redemption satisfies one of the tests set forth in Section 302(b) of
the Code and is therefore treated as a sale or exchange of the redeemed shares.
None of these dividend distributions would be eligible for the dividends
received deduction for corporate shareholders. The redemption will be treated as
a sale or exchange if it (i) is "substantially disproportionate" with respect to
the holder, (ii) results in a "complete termination" of the holder's share
interest in the Company, or (iii) is "not essentially equivalent to a dividend"
with respect to the holder, all within the meaning of Section 302(b) of the
Code. In determining whether any of these tests have been met, common shares
considered to be owned by the holder by reason of certain constructive ownership
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rules set forth in the Code, as well as common shares actually owned by the
holder, must generally be taken into account. If a particular holder of Series A
Preferred Shares owns (actually or constructively) no common shares of the
Company, or an insubstantial percentage of the outstanding common shares of the
Company, a redemption of Series A Preferred Shares of that holder is likely to
qualify for sale or exchange treatment because the redemption would not be
"essentially equivalent to a dividend." However, because the determination as to
whether any of the alternative tests of Section 302(b) of the Code will be
satisfied with respect to any particular holder of Series A Preferred Shares
depends upon the facts and circumstances at the time the determination must be
made, prospective holders of Series A Preferred Shares are advised to consult
their own tax advisors to determine such tax treatment.
If a redemption of Series A Preferred Shares is not treated as a
distribution taxable as a dividend to a particular holder, it will be treated to
that holder as a taxable sale or exchange. As a result, the holder will
recognize gain or loss for federal income tax purposes in an amount equal to the
difference between (i) the amount of cash and the fair market value of any
property received (less any portion thereof attributable to accumulated and
declared but unpaid dividends, which will be taxable as a dividend to the extent
of the Company's current and accumulated earnings and profits), and (ii) the
holder's adjusted basis in the Series A Preferred Shares for tax purposes. Such
gain or loss will be capital gain or loss if the Series A Preferred Shares have
been held as a capital asset, and will be long-term gain or loss if the Series A
Preferred Shares have been held for more than one year. If a redemption of
Series A Preferred Shares is treated as a distribution taxable as a dividend,
the amount of the distribution will be measured by the amount of cash and the
fair market value of any property received by the holder. The holder's adjusted
basis in the redeemed Series A Preferred Shares for tax purposes will be
transferred to the holder's remaining shares in the Company. If the holder owns
no other shares in the Company, such basis may, under certain circumstances, be
transferred to a related person or it may be lost entirely.
DISPOSITION OF SERIES A PREFERRED SHARES
If you are a U.S. Shareholder (as defined below) and you sell or dispose of
your Series A Preferred Shares, you will recognize gain or loss for federal
income tax purposes in an amount equal to the difference between the amount of
cash and the fair market value of any property you receive on the sale or other
disposition and your adjusted basis in the shares for tax purposes. This gain or
loss will be capital gain or loss if you have held the shares as a capital asset
and will be long-term capital gain or loss if you have held the shares for more
than one year. The Internal Revenue Service has the authority to prescribe, but
had not yet prescribed, regulations that would apply a capital gain tax rate of
25%, which is generally higher than the long-term capital gain tax rate for
non-corporate shareholders, to a portion of capital gain realized by a
non-corporate shareholder on the sale of REIT shares that would correspond to
the REIT's "unrecaptured Section 1250 gain." You are advised to consult with
your own tax advisors with respect to your capital gain tax liability.
In general, if you are a U.S. Shareholder and you recognize loss upon the
sale or other disposition of shares that you have held for six months or less,
after applying the holding period rules set forth in the Code, the loss you
recognize will be treated as a long-term capital loss to the extent you received
distributions from us which were required to be treated as long-term capital
gains.
TAXATION OF SHAREHOLDERS
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As used herein, the term "U.S. Shareholder" means a holder of Series A
Preferred Shares who (for U.S. federal income tax purposes) (i) is a citizen or
resident of the United States, (ii) is a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof (except, in the case of a partnership, the
Treasury provides otherwise by regulations), (iii) is an estate the income of
which is subject to U.S. federal income taxation regardless of its source, or
(iv) is a trust whose administration is subject to the primary supervision of a
U.S. court and which has one or more U.S. persons who have the authority to
control all substantial decisions of the trust.
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Notwithstanding the preceding sentence, to the extent provided in the
regulations, certain trusts in existence on August 20, 1996, and treated as U.S.
persons prior to that date that elect to continue to be treated as U.S. persons
shall also be considered U.S. Shareholders.
As long as EPR qualifies as a REIT, distributions made out of our current
or accumulated earnings and profits (and not designated as capital gain
dividends) will constitute dividends taxable to our taxable U.S. Shareholders as
ordinary income. Such distributions will not be eligible for the dividends
received deduction otherwise available with respect to dividends received by
U.S. Shareholders that are corporations. Distributions made by EPR that are
properly designated as capital gain dividends will be taxable to U.S.
Shareholders as gains (to the extent they do not exceed our actual net capital
gain for the taxable year) from the sale or disposition of a capital asset.
Depending on the period of time EPR held the assets which produced the gains,
and on certain designations, if any, which may be made by EPR, such gains may be
taxable to noncorporate U.S. Shareholders at a 20% or 25% rate. U.S.
Shareholders that are corporations may, however, be required to treat up to 20%
of certain capital gain dividends as ordinary income. To the extent EPR makes
distributions (not designated as capital gain dividends) in excess of our
current and accumulated earnings and profits, such distributions will be treated
first as a tax-free return of capital to each U.S. Shareholder, reducing the
adjusted basis which such U.S. Shareholder has in his shares for tax purposes by
the amount of such distribution (but not below zero), with distributions in
excess of a U.S. Shareholder's adjusted basis in his shares taxable as capital
gain, provided the shares have been held as a capital asset (which, with respect
to a non-corporate U.S. Shareholder, will be taxable as long-term capital gain
if the shares have been held for more than eighteen months, mid-term capital
gain if the shares have been held for more than one year but not more than
eighteen months, or short-term capital gain if the shares have been held for one
year or less). Dividends declared by EPR in October, November or December of any
year and payable to a shareholder of record on a specified date in any such
month shall be treated as both paid by EPR and received by the shareholder on
December 31 of that year; provided the dividend is actually paid by EPR on or
before January 31 of the following calendar year. Shareholders may not include
in their own income tax returns any net operating losses or capital losses of
EPR.
Holders of the Series A Preferred Shares may be treated, for federal income
tax purposes, as if a distribution with respect to the Series A Preferred Shares
was received by them even if cash dividends are not actually paid. A deemed
distribution would be currently taxable to the holders to the extent the Company
has current or accumulated earnings and profits, and should result in an
increase in the tax basis in the Series A Preferred Shares. A deemed
distribution would not be currently taxable (and should have no effect on the
holders' tax basis in the Series A Preferred Shares) if the Company does not
have current or accumulated earnings and profits at the time the distribution is
deemed to have been made.
Distributions made by EPR and gain arising from the sale of exchange by a
U.S. Shareholder of Series A Preferred Shares will not be treated as passive
activity income, and, as a result, U.S. Shareholders generally will not be able
to apply any "passive losses" against such income or gain. Distributions made by
EPR (to the extent they do not constitute a return of capital) generally will be
treated as investment income for purposes of computing the investment interest
limitation. Gain arising from the sale or other disposition of Series A
Preferred Shares (or distributions treated as such), will not be treated as
investment income under certain circumstances.
Upon any sale or other disposition of Series A Preferred Shares, a U.S.
Shareholder will recognize gain or loss for federal income tax purposes in an
amount equal to the difference between (i) the amount of cash and the fair
market value of any property received on such sale or other disposition, and
(ii) the holder's adjusted basis in the shares for tax purposes. Such gain or
loss will be capital gain or loss if the shares have been held by the U.S.
Shareholder as a capital asset and, with respect to a non-corporate U.S.
Shareholder, will be long-term gain or loss if the shares have been held for
more than one year at the time of disposition. In general, any loss recognized
by a U.S. Shareholder upon the sale or other disposition of shares that have
been held for six months or less (after applying certain holding period rules)
will be treated as a long-term capital loss, to the extent of capital gain
dividends received by such U.S. Shareholder from EPR which were required to be
treated as long-term capital gains.
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TAXATION OF TAX-EXEMPT SHAREHOLDERS
The IRS has issued a revenue ruling in which it held that amounts
distributed by a REIT to a tax-exempt employees' pension trust do not constitute
unrelated business taxable income ("UBTI"). Revenue rulings, however, are
interpretive in nature and are subject to revocation or modification by the IRS.
Based upon the ruling and the analysis therein, distributions by EPR to a
shareholder that is a tax-exempt entity should not constitute UBTI, provided the
tax exempt entity has not financed the acquisition of its shares with
"acquisition indebtedness" within the meaning of the Code, and the shares are
not otherwise used in an unrelated trade or business of the tax-exempt entity.
In addition, REITs generally treat the beneficiaries of qualified pension trusts
as the beneficial owners of REIT shares owned by such pension trusts for
purposes of determining if more than 50% of the REIT's shares are owned by five
or fewer individuals. However, if a pension trust owns more than 10% of the
REIT's shares, it can be subject to UBTI on all or a portion of REIT dividends
made to it, if the REIT is treated as a "pension-held REIT." A pension-held REIT
is any REIT if more than 25% of its shares are owned by one pension trust, or
one or more pension trusts each owns 10% of such shares, and in the aggregate,
such pension trusts own more than 50% of its shares. EPR does not expect to be
treated as a "pension-held REIT." Consequently, a pension trust shareholder
should not be subject to UBTI on dividends it receives from EPR. However,
because our common shares are publicly traded, and it is anticipated the Series
A Preferred Shares will be publicly traded, no assurance can be given in this
regard.
TAXATION OF FOREIGN SHAREHOLDERS
The rules governing U.S. federal income taxation of the ownership and
disposition of shares by persons who are not U.S. Shareholders ("Non-U.S.
Shareholders") are complex and no attempt is made in this prospectus supplement
to provide more than a summary of these rules. Prospective Non-U.S. Shareholders
should consult with their own tax advisors to determine the impact of federal,
state, local and any foreign income tax laws with regard to an investment in
EPR, including any reporting requirements.
Distributions that are not attributable to gain from sales or exchanges by
EPR of "United States real property interests" ("USRPIs"), as defined in the
Code, and not designated by EPR as capital gain dividends will be treated as
dividends of ordinary income to the extent they are made out of current or
accumulated earnings and profits of EPR. Unless such distributions are
effectively connected with the Non-U.S. Shareholder's conduct of a U.S. trade or
business (or, if an income tax treaty applies, are attributable to a U.S.
permanent establishment of the Non-U.S. Shareholder), the gross amount of the
distributions will ordinarily be subject to U.S. withholding tax at a 30% or
lower treaty rate, if applicable. In general, Non-U.S. Shareholders will not be
considered engaged in a U.S. trade or business (or, in the case of an income tax
treaty, as having a U.S. permanent establishment) solely by reason of their
ownership of shares. If income on shares is treated as effectively connected
with the Non-U.S. Shareholder's conduct of a U.S. trade or business (or, if an
income tax treaty applies, is attributable to a U.S. permanent establishment of
the Non-U.S. Shareholder), the Non-U.S. Shareholder generally will be subject to
a tax at graduated rates, in the same manner as U.S. Shareholders are taxed with
respect to such distributions (and may also be subject to the 30% branch profits
tax in the case of a shareholder that is a foreign corporation). EPR expects to
withhold U.S. income tax at the rate of 30% on the gross amount of any
distributions of ordinary income made to a Non-U.S. Shareholder unless (i) a
lower treaty rate applies and proper certification is provided, or (ii) the
Non-U.S. Shareholder files an IRS Form W-8 ECI with EPR claiming that the
distribution is effectively connected with the Non-U.S.
Shareholder's conduct of a U.S. trade or business (or, if an income tax treaty
applies, is attributable to a U.S. permanent establishment of the Non-U.S.
Shareholder).
Pursuant to Treasury Regulations, dividends paid to an address in a country
outside the United States are generally presumed to be paid to a resident of
that country for purposes of ascertaining the withholding requirement discussed
above and the applicability of a tax treaty rate. Under certain income tax
treaties, lower withholding rates generally applicable to dividends do not apply
to dividends from a REIT. Under recently promulgated Temporary Treasury
Regulations, certain Non-U.S. Shareholders who seek to claim the benefit of an
applicable treaty rate will be required to satisfy certain residency
requirements. In
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addition, certain certification and disclosure requirements must be satisfied
under the effectively connected income and permanent establishment exemptions
discussed in the preceding paragraph.
Unless the Series A Preferred Shares constitute a USRPI, distributions in
excess of current and accumulated earnings and profits of EPR will not be
taxable to a shareholder to the extent such distributions do not exceed the
adjusted basis of the shareholder's Series A Preferred Shares but rather will
reduce the adjusted basis of the shares. To the extent such distributions exceed
the adjusted basis of a Non-U.S. Shareholder's Series A Preferred Shares, such
distributions will give rise to tax liability if the Non-U.S. Shareholder would
otherwise be subject to tax on any gain from the sale or disposition of his
shares, as described below. If it cannot be determined at the time a
distribution is made whether or not the distribution will be in excess of
current and accumulated earnings and profits, the distributions will be subject
to withholding at the same rate as dividends. If, however, Series A Preferred
Shares are treated as a USRPI, then unless otherwise treated as a dividend for
withholding tax purposes as described below, any distributions in excess of
current or accumulated earnings and profits will generally be subject to 10%
withholding and, to the extent such distributions also exceed the adjusted basis
of a Non-U.S. Shareholder's shares, they will also give rise to gain from the
sale or exchange of the shares, the tax treatment of which is described below.
Distributions that are designated by EPR at the time of distribution as
capital gain dividends (other than those arising from the disposition of a
USRPI) generally will not be subject to taxation, unless (i) investment in the
Series A Preferred Shares is effectively connected with the Non-U.S.
Shareholder's U.S. trade or business (or, if an income tax treaty applies, is
attributable to a U.S. permanent establishment of the Non-U.S. Shareholder), in
which case the Non-U.S. Shareholder will be subject to the same treatment as
U.S. Shareholders with respect to such gain (except that a shareholder that is a
foreign corporation may also be subject to the 30% branch profits tax), or (ii)
the Non-U.S. Shareholder is a non-resident alien individual whose is present in
the U.S. for 183 days or more during the taxable year and either has a "tax
home" in the U.S. or sold his shares under circumstances in which the sale was
attributable to a U.S. office, in which case the non-resident alien individual
will be subject to a 30% tax on the individual's capital gains.
For each year in which EPR qualifies as a REIT, distributions that are
attributable to gain from sales or exchanges by EPR of USRPIs ("USRPI Capital
Gains"), such as properties beneficially owned by EPR, will be taxed to a
Non-U.S. Shareholder under the provisions of the Foreign Investment in Real
Property Tax Act of 1980 ("FIRPTA"). Under FIRPTA, such distributions are taxed
to a Non-U.S. Shareholder as gain effectively connected with a U.S. trade or
business regardless or whether such dividends are designated as capital gain
dividends. Non-U.S. Shareholders would thus be taxed at the normal capital gain
rates applicable to U.S. Shareholders (subject to applicable alternative minimum
tax and a special alternative minimum tax in the case of nonresident alien
individuals) on such distributions. Also, distributions of USRPI Capital Gains
may be subject to a 30% branch profits tax in the hands of a foreign corporate
shareholder not entitled to treaty exemption or rate reduction. EPR is required
by applicable Treasury Regulations to withhold a portion of any distribution
consisting of USRPI Capital Gains. This amount may be creditable against the
Non-U.S. Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of Series A Preferred
Shares will generally not be taxed under FIRPTA if the shares do not constitute
a USRPI. Series A Preferred Shares will not be considered a USRPI if EPR is a
"domestically controlled REIT," or if the Series A Preferred Shares are part of
a class that is regularly traded on an established securities market and the
holder owned less than 5% of the class sold during a specified testing period. A
"domestically controlled REIT" is defined generally as a real estate investment
trust in which at all times during a specified testing period less than 50% in
value of the shares was held directly or indirectly by foreign persons. EPR
believes that it is a "domestically controlled REIT," and therefore the sale of
Series A Preferred Shares will not be subject to taxation under FIRPTA. If the
gain on the sale of Series A Preferred Shares were to be subject to taxation
under FIRPTA, the Non-U.S. Shareholder would be subject to the same treatment as
U.S. Shareholders with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals), and the purchaser of the shares may
S-15
be required to withhold 10% of the purchase price and remit such amount to the
IRS. However, since our common shares are publicly traded and it is anticipated
our Series A Preferred Shares will be publicly traded as well, no assurance can
be given in this regard.
Gain not subject to FIRPTA will be taxable to a Non-U.S. Shareholder if (i)
investment in the Series A Preferred Shares is effectively connected with a U.S.
trade or business of the Non-U.S. Shareholder (or, if an income tax treaty
applies, is attributable to a U.S. permanent establishment of the Non-U.S.
Shareholder), in which case the Non-U.S. Shareholder will be subject to the same
treatment as U.S. Shareholders with respect to such gain, or (ii) the Non-U.S.
Shareholder is a nonresident alien individual who was present in the U.S. for
183 days or more during the taxable year and has a "tax home" in the U.S., in
which case the nonresident alien individual will be subject to a 30% tax on the
individual's capital gains. If the gain on the sale of Series A Preferred Shares
were to be subject to taxation under FIRPTA, the Non-U.S. Shareholder would be
subject to the same treatment as U.S. Shareholders with respect to such gain
(subject to applicable alternative minimum tax and a special alternative minimum
tax in the case of nonresident alien individuals).
If the proceeds of a disposition of Series A Preferred Shares are paid by
or through a U.S. office of a broker, the payment is subject to information
reporting and backup withholding unless the disposing Non-U.S. Shareholder
certifies as to his name, address and non-U.S. status or otherwise establishes
an exemption. Generally, U.S. information reporting and backup withholding will
not apply to a payment of disposition proceeds if the payment is made outside
the U.S. through a non-U.S. office of a non-U.S. broker. U.S. information
reporting requirements (but not backup withholding) will apply, however, to a
payment of disposition proceeds outside the U.S. if (i) the payment is made
through an office outside the U.S. of a broker that is either (a) a U.S. person,
(b) a foreign person that derives 50% or more of its gross income for certain
periods from the conduct of a trade or business in the U.S. or (c) a "controlled
foreign corporation" for U.S. federal income tax purposes, and (ii) the broker
fails to obtain documentary evidence that the shareholder is a Non-U.S.
Shareholder and that certain conditions are met or that the Non-U.S. Shareholder
otherwise is entitled to an exemption.
Final regulations dealing with withholding tax on income paid to foreign
persons and related matters (the "New Withholding Regulations") were recently
promulgated. In general, the New Withholding Regulations do not significantly
alter the substantive withholding and information reporting requirements
described above, but unify current certification procedures and forms and
clarify reliance standards. For example, the New Withholding Regulations adopt a
certification rule under which a Non-U.S. Shareholder who wishes to claim the
benefit of an applicable treaty rate with respect to dividends received from a
U.S. corporation will be required to satisfy certain certification and other
requirements. In addition, the New Withholding Regulations require a corporation
that is a REIT to treat as a dividend the portion of a distribution that is not
designated as a capital gain dividend or return of basis and apply the 30%
withholding tax (subject to any applicable deduction or exemption) to such
portion, and to apply the FIRPTA withholding rules (discussed above) with
respect to the portion of the distribution designed by the REIT as capital gain
dividend. The New Withholding Regulations are generally effective for payments
made after December 31, 1999, subject to certain transition rules.
EXCEPT AS PROVIDED IN THIS PARAGRAPH, THE DISCUSSION SET FORTH ABOVE IN
"TAXATION OF FOREIGN SHAREHOLDERS" DOES NOT TAKE THE NEW WITHHOLDING REGULATIONS
INTO ACCOUNT. PROSPECTIVE NON-U.S. SHAREHOLDERS ARE STRONGLY URGED TO CONSULT
THEIR OWN TAX ADVISORS WITH RESPECT TO THE NEW WITHHOLDING REGULATIONS.
S-16
DESCRIPTION OF SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
The following is a summary of the material terms and provisions of the
Series A Preferred Shares. This description supplements the description of the
general terms and provisions of our preferred shares contained in the
accompanying prospectus. To the extent the terms described herein differ from
the terms described in the accompanying prospectus, you should rely on the terms
set forth below.
GENERAL
Under our Declaration of Trust, we are authorized to issue up to 50,000,000
common shares and up to 5,000,000 preferred shares. As of March 31, 2002, a
total of 17,577,877 common shares were issued, 17,105,677 were outstanding and
472,200 were held in treasury and no preferred shares were outstanding.
We are authorized to issue preferred shares in one or more series, with
such designations, preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption, in each case as permitted by Maryland law and
determined by our Board of Trustees. See "Description of Securities" in the
accompanying prospectus.
Prior to the completion of this offering, our Board of Trustees will adopt
an amendment to our Declaration of Trust describing the terms and conditions of
the Series A Preferred Shares which will be available from us and will be
incorporated into this prospectus supplement by reference. Up to 2,300,000
Series A Preferred Shares will be authorized. As of the date of this prospectus
supplement, no Series A Preferred Shares are outstanding.
MATURITY
The Series A Preferred Shares have no stated maturity and will not be
subject to any sinking fund or mandatory redemption.
RANKING
The Series A Preferred Shares will, with respect to dividend rights and
rights upon our liquidation, dissolution or winding up, rank:
- senior to all classes or series of our common shares and to all other
equity securities authorized and designated by us in the future and
ranking junior to the Series A Preferred Shares with respect to dividend
rights or rights upon our liquidation, dissolution or winding up
(collectively, "Junior Shares")
- on a parity with any other equity securities authorized or designated by
us in the future, the terms of which specifically provide that such
equity securities rank on a parity with the Series A Preferred Shares
with respect to dividend rights or rights upon our liquidation,
dissolution or winding up (collectively, "Parity Shares")
- junior to all of our existing and future indebtedness and to any class or
series of equity securities authorized or designated by us in the future,
the terms of which specifically provide that such class or series ranks
senior to the Series A Preferred Shares with respect to dividend rights
or rights upon our liquidation, dissolution or winding up (collectively,
"Senior Shares")
DIVIDENDS
Subject to the rights of series of preferred shares which we may authorize
and designate in the future, holders of Series A Preferred Shares will be
entitled to receive, when and as declared by our Board of Trustees, out of funds
legally available for the payment of dividends, cumulative preferential cash
dividends at the rate of 9.50% per year of the Liquidation Preference (as
defined below) per share (equivalent to a fixed annual amount of $2.375 per
share).
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Dividends on the Series A Preferred Shares will be cumulative from the date
of original issue and will be payable quarterly in arrears on or about the 15th
day of January, April, July and October of each year or, if any such day is not
a business day, then on the next succeeding business day. The first dividend
will be paid on or about July 15, 2002 and will be for less than a full quarter.
Dividends payable on the Series A Preferred Shares for any partial dividend
period will be computed on the basis of a 360-day year consisting of twelve
30-day months. Dividends will be payable to holders of record as they appear in
our share records at the close of business on the applicable record date, which
will be the same date set for any quarterly dividend payable to holders of our
common shares or on such other date designated by our Board of Trustees that is
not more than 30 nor less than 10 days prior to the applicable dividend payment
date (each, a "Dividend Record Date"). The first Dividend Record Date for
determination of shareholders entitled to receive dividends on the Series A
Preferred Shares is expected to be June 28, 2002.
No dividends on the Series A Preferred Shares may be declared by our Board
of Trustees or paid or set apart for payment by us at any time when the terms of
any of our agreements, including any agreement relating to our indebtedness,
prohibit such declaration, payment or setting apart for payment or provide that
such declaration, payment or setting apart for payment would constitute a breach
or default of the agreement, or if the declaration or payment is restricted or
prohibited by law.
Notwithstanding the foregoing, dividends on the Series A Preferred Shares
will accrue whether or not we have earnings, whether or not there are funds
legally available for the payment of such dividends and whether or not such
dividends are declared. Accrued but unpaid dividends on the Series A Preferred
Shares will accumulate as of the dividend payment date on which they became
payable.
When dividends are not paid in full on the Series A Preferred Shares or any
Parity Shares, or a sum sufficient for that payment is not set aside, all
dividends declared on the Series A Preferred Shares and any Parity Shares shall
be declared ratably in proportion to the respective amounts of dividends
accumulated, accrued and unpaid on the Series A Preferred Shares and
accumulated, accrued and unpaid on such Parity Shares. Except as described in
the preceding sentence, unless dividends on the Series A Preferred Shares equal
to the full amount of accumulated, accrued and unpaid dividends have been or
contemporaneously are declared and paid or declared and contemporaneously set
apart for payment, for all past dividend periods and the then current dividend
period, no dividends shall be declared or paid or set apart for payment by us
and no other distribution of cash or other property may be declared or made,
directly or indirectly, by us with respect to any Parity Shares. Unless
dividends equal to the full amount of all accumulated, accrued and unpaid
dividends on the Series A Preferred Shares have been declared and paid, or
declared and a sum sufficient for the payment thereof has been set apart for
such payment, for all past dividend periods and the then current dividend
period, no dividends (other than dividends or distributions paid in Junior
Shares or options, warrants or rights to subscribe for or purchase Junior
Shares) may be declared or paid or set apart for payment by us and no other
distribution of cash or other property may be declared or made, directly or
indirectly, by us with respect to any Junior Shares, nor shall any Junior Shares
be redeemed, purchased or otherwise acquired (other than a redemption, purchase
or other acquisition of common shares made for purposes of any of our employee
incentive or benefit plans) for any consideration (or any monies be paid to or
made available for a sinking fund for the redemption of any such shares),
directly or indirectly, by us (except by conversion into or exchange for Junior
Shares).
No interest, or sum of money in lieu of interest, will be payable on any
dividend payments on the Series A Preferred Shares which may be in arrears. Any
dividend payment made on the Series A Preferred Shares will first be credited
against the earliest accrued but unpaid dividend due and payable.
LIQUIDATION PREFERENCE
Subject to the rights of series of preferred shares which we may authorize
and designate in the future, upon any voluntary or involuntary liquidation,
dissolution or winding up of our affairs, before we make or set apart any
payment or distribution for the holders of any Junior Shares, the holders of
Series A Preferred Shares shall be entitled to be paid, out of assets legally
available for distribution to our shareholders, a liquidation preference of
$25.00 per share (the "Liquidation Preference"), plus an amount
S-18
equal to all accumulated, accrued and unpaid dividends (whether or not earned or
declared) to the date of final distribution to such holders. Until the holders
of the Series A Preferred Shares have been paid the Liquidation Preference in
full, plus an amount equal to all accumulated, accrued and unpaid dividends
(whether or not earned or declared) to the date of final distribution to such
holders, no payment shall be made to any holder of Junior Shares upon the
liquidation, dissolution or winding up of our affairs. If upon any liquidation,
dissolution or winding up of our affairs, our available assets, or proceeds
thereof, shall be insufficient to pay in full the amount of the liquidation
distributions on all outstanding Series A Preferred Shares and the corresponding
amounts payable on any other Parity Shares, then such available assets, or the
proceeds thereof, shall be distributed among the holders of Series A Preferred
Shares and any other Parity Shares ratably in the same proportion as the
respective amounts that would be payable on the Series A Preferred Shares and
any such Parity Shares if all amounts payable thereon were paid in full. A
voluntary or involuntary liquidation, dissolution or winding up of our affairs
shall not include our consolidation or merger with one or more entities, a sale
or transfer of all or substantially all of our assets, or a statutory share
exchange. Upon any liquidation, dissolution or winding up of our affairs, after
payment shall have been made in full to the holders of Series A Preferred Shares
and any Parity Shares, any other series or class or classes of Junior Shares
shall be entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Series A Preferred Shares and any Parity
Shares shall not be entitled to share therein.
OPTIONAL REDEMPTION
We may not redeem the Series A Preferred Shares before May 29, 2007, except
in certain limited circumstances relating to maintaining our ability to qualify
as a REIT for federal income tax purposes as described under "Federal Income Tax
Consequences" in the accompanying prospectus. On and after May 29, 2007, we may,
at our option upon not less than 30 nor more than 60 days written notice, redeem
Series A Preferred Shares, in whole or in part, at any time or from time to
time, for cash at a redemption price equal to 100% of the Liquidation
Preference, plus all accumulated, accrued and unpaid dividends thereon, if any,
to the date fixed for redemption (except as provided below), without interest.
PROCEDURES FOR REDEMPTION
Holders of Series A Preferred Shares to be redeemed will be required to
surrender their Series A Preferred Shares at the place designated in the notice
and will be entitled to the redemption price and any accumulated, accrued and
unpaid dividends payable upon such redemption following their surrender. If
notice of redemption of any Series A Preferred Shares has been given and if the
funds necessary for such redemption have been set aside by us in trust for the
benefit of the holders of any Series A Preferred Shares called for redemption,
then from and after the redemption date dividends will cease to accrue on such
Series A Preferred Shares, such Series A Preferred Shares will no longer be
deemed outstanding and all rights of the holders of such shares will terminate,
except the right to receive the redemption price. If less than all of the
outstanding Series A Preferred Shares are to be redeemed, the Series A Preferred
Shares to be redeemed will be selected on a pro rata basis (as nearly as may be
practicable without creating fractional shares) or by any other equitable method
determined by us. Our ability to redeem Series A Preferred Shares is subject to
the limitation on distributions in the Maryland General Corporation Law.
Unless dividends equal to the full amount of all accumulated, accrued and
unpaid dividends on all outstanding Series A Preferred Shares have been declared
and paid, or declared and a sum sufficient for payment thereof set apart for the
payment, for all past dividend periods and the then current dividend period, no
Series A Preferred Shares or Parity Shares may be redeemed unless all
outstanding Series A Preferred Shares are simultaneously redeemed, and we will
not have the right to purchase or otherwise acquire, directly or indirectly, any
Series A Preferred Shares (except by exchange for Junior Shares); provided,
however, that the foregoing shall not prevent the purchase or acquisition of
Series A Preferred Shares pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Series A Preferred Shares.
S-19
Notice of redemption will be given by publication in a newspaper of general
circulation in the City of New York, New York, such publication to be made once
a week for two successive weeks commencing not less than 30 nor more than 60
days prior to the redemption date. Notice of redemption will be mailed by us not
less than 30 nor more than 60 days prior to the redemption date, addressed to
the respective holders of record of the Series A Preferred Shares to be redeemed
at their respective addresses as they appear on our share transfer records. No
failure to give such notice or any defect therein or in the mailing thereof
shall affect the validity of the proceedings for the redemption of any Series A
Preferred Shares except to a holder to whom notice was defective or not given.
Each notice will state:
- the redemption date
- the redemption price
- the number of Series A Preferred Shares to be redeemed
- the procedures with respect to redemption of uncertificated shares or
place or places where certificates for Series A Preferred Shares are to
be surrendered for payment of the redemption price
- that dividends on the shares to be redeemed will cease to accrue on the
redemption date
If less than all of the Series A Preferred Shares held by any holder are to
be redeemed, the notice mailed to that holder will also specify the number of
Series A Preferred Shares held by that holder to be redeemed.
On any redemption of Series A Preferred Shares, we will pay, in cash, any
accumulated, accrued and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to the
corresponding dividend payment date, in which case each holder of Series A
Preferred Shares at the close of business on the Dividend Record Date will be
entitled to the dividend payable on those shares on the corresponding dividend
payment date notwithstanding the redemption of those shares between the Dividend
Record Date and the corresponding dividend payment date or our default in the
payment of the dividend due. Except as provided above, we will make no payment
or allowance for unpaid dividends, whether or not in arrears, on Series A
Preferred Shares which may have been called for redemption.
The Series A Preferred Shares have no stated maturity and will not be
subject to any sinking fund or mandatory redemption. However, in order to ensure
we continue to meet the requirements for qualification as a REIT for federal
income tax purposes and for other purposes, Series A Preferred Shares acquired
by a shareholder which causes the shareholder to exceed our 9.8% ownership limit
may be subject to forfeiture. See "Description of Securities -- Ownership Limit"
in the accompanying prospectus.
Subject to applicable law and the limitation on purchases when dividends on
the Series A Preferred Shares are in arrears, we may, at any time and from time
to time, purchase any Series A Preferred Shares in the open market, by tender or
by private agreement.
VOTING RIGHTS
Holders of Series A Preferred Shares will not have any voting rights,
except as described below and except as otherwise required by applicable law.
If we do not declare and pay dividends on our Series A Preferred Shares or
any Parity Shares for six or more quarterly periods, whether or not consecutive,
the number of trustees then constituting our Board of Trustees shall be
increased by two, if not already increased by reason of similar types of
provisions with respect to any Parity Shares which are entitled to similar
voting rights (the "Voting Preferred Shares "), and the holders of Series A
Preferred Shares, together with the holders of all other Voting Preferred Shares
then entitled to exercise similar voting rights, voting as a single class
regardless of series, will be entitled to vote for the election of the two
additional trustees at any annual meeting of shareholders or at a special
meeting of the holders of the Series A Preferred Shares and the Voting Preferred
Shares called for that purpose. We must call a special meeting upon the request
of the holders of not less than 10% of the
S-20
outstanding Series A Preferred Shares. A quorum for any such meeting will be
deemed to exist if at least a majority of the outstanding Series A Preferred
Shares and Voting Preferred Shares then entitled to exercise similar voting
rights are represented in person or by proxy at the meeting. The additional
trustees will be elected upon the affirmative vote of a plurality of the Series
A Preferred Shares and Voting Preferred Shares present and voting in person or
by proxy at a duly called and held meeting at which a quorum is present.
Whenever dividends in arrears on the outstanding Series A Preferred Shares
and Voting Preferred Shares shall have been paid and dividends thereon for the
current quarterly dividend period shall have been paid or declared and set apart
for payment, then the right of the holders of the Series A Preferred Shares and
Voting Preferred Shares to elect the additional two trustees shall cease and the
terms of office of such trustees will terminate and the number of trustees
constituting our Board of Trustees will be reduced accordingly.
The affirmative vote or consent of at least 66 2/3% of the votes entitled
to be cast by the holders of the outstanding Series A Preferred Shares will be
required to effect:
- any amendment, alteration or repeal of any of the provisions of our
Declaration of Trust or bylaws that materially and adversely affect the
powers, rights or preferences of the holders of the Series A Preferred
Shares; provided, however, that the amendment of, or supplement to, the
provisions of our Declaration of Trust so as to authorize, create,
increase or decrease the authorized amount of any Junior Shares or any
Parity Shares, or the issuance of any such shares, shall not be deemed to
materially adversely affect the powers, rights or preferences of the
Series A Preferred Shares
- a share exchange that affects the Series A Preferred Shares, a
consolidation with or merger of the Company into another entity, or a
consolidation with or merger of another entity into the Company, unless
in each such case each Series A Preferred Share (i) shall remain
outstanding without a material and adverse change to its terms and rights
or (ii) shall be converted into or exchanged for preferred shares of the
surviving entity having preferences, rights, powers, restrictions,
limitations as to dividends, qualifications and terms or conditions of
redemption identical to that of the Series A Preferred Shares (except for
changes that do not materially and adversely affect the holders of the
Series A Preferred Shares)
- the authorization, reclassification or creation of, or the increase in
the authorized or issued amount of, any class or series of Senior Shares
or any security convertible into any class or series of Senior Shares
- any increase in the authorized amount of Series A Preferred Shares or
decrease in the authorized amount of Series A Preferred Shares below the
number of shares then issued and outstanding; provided, however, that no
such vote of the holders of the Series A Preferred Shares shall be
required if, at or prior to the time such amendment, alteration or repeal
is to take effect or the issuance of any such Senior Shares or security
convertible into Senior Shares is to be made, as the case may be,
provisions are made for the redemption of all outstanding Series A
Preferred Shares
CONVERSION
The Series A Preferred Shares are not convertible into or exchangeable for
any of our other property or securities.
FORM
The Series A Preferred Shares will be issued and maintained in book-entry
form registered in the name of the nominee of The Depository Trust Company
except under limited circumstances.
TRANSFER AGENT
The registrar and transfer agent for the Series A Preferred Shares will be
UMB Bank, n.a.
S-21
OWNERSHIP LIMIT
The Series A Preferred Shares are subject to certain restrictions on
ownership which are described under "Description of Securities -- Ownership
Limit" in the accompanying prospectus.
S-22
UNDERWRITING
We and the underwriters for this offering named below have entered into an
underwriting agreement concerning the Series A Preferred Shares being offered.
The underwriters' obligations are several and not joint, which means that each
underwriter is required to purchase a specific number of shares, but is not
responsible for the commitment of any other underwriter to purchase shares.
Subject to the terms and conditions of the underwriting agreement, each
underwriter has severally agreed to purchase the number of Series A Preferred
Shares set forth opposite its name below.
UNDERWRITERS NUMBER OF SHARES
------------ ----------------
Bear, Stearns & Co. Inc..................................... 560,000
Prudential Securities Incorporated.......................... 560,000
BB&T Capital Markets........................................ 220,000
Fahnestock & Co. Inc. ...................................... 220,000
Ferris Baker Watts Incorporated............................. 220,000
Stifel, Nicolaus & Company Incorporated..................... 220,000
---------
TOTAL.................................................. 2,000,000
=========
The underwriting agreement provides that the obligations of the
underwriters are conditional and may be terminated at their discretion based on
their assessment of the state of the financial markets. The obligations of the
underwriters may also be terminated upon the occurrence of the events specified
in the underwriting agreement. The underwriters are severally committed to
purchase all of the Series A Preferred Shares being offered if any shares are
purchased, other than those shares covered by the over-allotment option
described below.
We have granted the underwriters an option to purchase up to 300,000
additional Series A Preferred Shares to be sold in this offering at the public
offering price, less the underwriting discounts and commissions described on the
cover page of this prospectus supplement. The underwriters may exercise this
option solely to cover over-allotments, if any. This option may be exercised, in
whole or in part, at any time within 30 days after the date of the prospectus
supplement. To the extent the option is exercised, the underwriters will be
severally committed, subject to certain conditions, to purchase their respective
commitments as indicated in the table above.
The following table provides information regarding the per share and total
underwriting discounts and commissions that we will pay to the underwriters in
connection with this offering. These amounts are shown assuming both no exercise
and full exercise of the underwriters' option to purchase up to an additional
300,000 Series A Preferred Shares.
PER SHARE TOTAL
------------------------------- -------------------------------
WITHOUT WITH WITHOUT WITH
OVER-ALLOTMENT OVER-ALLOTMENT OVER-ALLOTMENT OVER-ALLOTMENT
-------------- -------------- -------------- --------------
Underwriting discounts and
commissions payable by us.... $0.7875 $0.7875 $1,575,000 $1,811,250
We estimate that the total expenses of this offering payable by us,
excluding underwriting discounts and commissions, will be approximately
$215,500.
The underwriters propose to offer the Series A Preferred Shares directly to
the public initially at the public offering price described on the cover page of
this prospectus supplement and to selected dealers at such price less a
concession not to exceed $.50 per share. The underwriters may allow, and such
selected dealers may reallow, a concession not to exceed $.45 per share. The
Series A Preferred Shares will be available for delivery, when, as and if
accepted by the underwriters and subject to prior sale and to withdrawal,
cancellation or modification of the offering without notice. The underwriters
reserve the right to reject any order for purchase of the shares in whole or in
part. After the commencement of this offering, the underwriters may change the
public offering price and other selling terms.
S-23
We have agreed in the underwriting agreement to indemnify the underwriters
against certain liabilities, including liabilities under the Securities Act of
1933, as amended, and, where such indemnification is unavailable, to contribute
to payments the underwriters may be required to make in respect of such
liabilities.
The Series A Preferred Shares are a new issue of securities and, prior to
the Series A Preferred Shares being accepted for listing on the NYSE, there will
be no established trading market for the Series A Preferred Shares. We
anticipate the NYSE will authorize, upon official notice of issuance, the
listing of the Series A Preferred Shares under the symbol "EPRprA." We expect
that trading on the NYSE will commence within 30 days after the initial delivery
of the Series A Preferred Shares. In order to meet the requirements for listing
the Series A Preferred Shares on the NYSE, the underwriters have undertaken to
sell (i) Series A Preferred Shares to ensure a minimum of 100 beneficial holders
with a minimum of 100,000 Series A Preferred Shares outstanding and (ii)
sufficient Series A Preferred Shares so that following this offering, the Series
A Preferred Shares have a minimum aggregate market value of $2 million. The
underwriters have advised us that prior to the commencement of listing on the
NYSE they intend to make a market in the Series A Preferred Shares, but are not
obligated to do so and may discontinue market making at any time without notice.
No assurance can be given as to the liquidity of the trading market for the
Series A Preferred Shares.
In order to facilitate this offering of the Series A Preferred Shares, the
underwriters may engage in transactions that stabilize, maintain or otherwise
affect the market price of the Series A Preferred Shares in accordance with
Regulation M under the Exchange Act.
The underwriters may over-allot the Series A Preferred Shares in connection
with this offering, thus creating a short position for their own account. Short
sales involve the sale by the underwriters of a greater number of shares than
they are committed to purchase in this offering. A short position may involve
either "covered" short sales or "naked" short sales. Covered short sales are
sales made in an amount not greater than the underwriters' over-allotment option
to purchase the additional Series A Preferred Shares described above. The
underwriters may close out any covered short position by either exercising their
over-allotment option or purchasing shares in the open market. In determining
the source of shares to close the covered short position, the underwriters will
consider, among other things, the price of shares available for purchase in the
open market as compared to the price at which they may purchase shares from us
through the over-allotment option. Naked short sales are sales in excess of the
over-allotment option. The underwriters must close out any naked short position
by purchasing shares in the open market. A naked short position is more likely
to be created if the underwriters are concerned there may be downward pressure
on the price of the Series A Preferred Shares in the open market after pricing
that could adversely affect investors who purchase in this offering.
Accordingly, to cover these short sales positions or to stabilize the
market price of the Series A Preferred Shares, the underwriters may bid for, and
purchase, Series A Preferred Shares in the open market. These transactions may
be effected on the NYSE or otherwise. Additionally, the representatives, on
behalf of the underwriters, may also reclaim selling concessions allowed to
another underwriter or dealer. Similar to other purchase transactions, the
underwriters' purchases to cover the syndicate short sales or to stabilize the
market price of our Series A Preferred Shares may have the effect of raising or
maintaining the market price of our Series A Preferred Shares or preventing or
mitigating a decline in the market price of our Series A Preferred Shares. As a
result, the price of the Series A Preferred Shares may be higher than the price
that might otherwise exist in the open market. No representation is made as to
the magnitude or effect of any such stabilization or other activities. The
underwriters are not required to engage in these activities and, if commenced,
may discontinue any of these activities at any time.
Bear, Stearns & Co. Inc., one of the underwriters, or its affiliates have
in the past provided secured debt financing to us and to an unconsolidated joint
venture in which we own an interest. In addition, from time to time, Bear,
Stearns & Co. Inc. or its affiliates or other underwriters or their affiliates
may continue to provide future investment banking, general financing and banking
services to us and our affiliates for which they will receive customary
compensation.
S-24
LEGAL MATTERS
Kutak Rock LLP, Kansas City, Missouri, has issued an opinion regarding the
validity of the Series A Preferred Shares offered by this prospectus supplement.
In addition, the description of federal income tax consequences in "Federal
Income Tax Consequences" in the accompanying prospectus is based on the opinion
of Kutak Rock LLP. Certain legal matters in connection with this offering will
be passed upon for the underwriters by Paul, Hastings, Janofsky & Walker LLP,
New York, New York.
S-25
PROSPECTUS
$125,000,000
ENTERTAINMENT PROPERTIES TRUST
COMMON SHARES, PREFERRED SHARES, WARRANTS AND DEBT SECURITIES
---------------------
Entertainment Properties Trust is a self-administered real estate
investment trust formed to invest in entertainment-related properties. EPR's
real estate portfolio is comprised of 31 megaplex theatre properties, including
one joint venture property, located in 12 states, one entertainment-themed
retail center located in Westminster, Colorado, and land parcels and related
properties adjacent to several of our theatre properties.
To preserve our qualification as a real estate investment trust for federal
income tax purposes and for other purposes, we impose restrictions on ownership
of our common and preferred shares. See "Description of Securities" and "Federal
Income Tax Consequences" in this Prospectus.
Through this Prospectus, we may periodically offer common shares of
beneficial interest, preferred shares of beneficial interest, warrants or debt
securities. The maximum aggregate initial public offering price of the
securities we may offer through this Prospectus will be $125,000,000.
The securities may be sold directly or through agents, underwriters or
dealers. If any agent or underwriter is involved in selling the securities, its
name, the applicable purchase price, fee, commission or discount arrangement,
and the net proceeds to the Company from the sale of the securities will be
described in a Prospectus Supplement. See "Plan of Distribution."
Our common shares are traded on the New York Stock Exchange under the
ticker symbol EPR. The last reported sales price of our common shares on May 13,
2002 was $22.90 per share.
We have paid regular quarterly dividends to our common shareholders. See
"About EPR" and "Description of Securities."
INVESTING IN THESE SECURITIES INVOLVES CERTAIN RISKS. SEE THE "RISK
FACTORS" BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is May 17, 2002.
TABLE OF CONTENTS
PAGE NO.
--------
About this Prospectus....................................... 1
Where You Can Find More Information......................... 1
Incorporation of Certain Information by Reference........... 1
Forward-Looking Statements.................................. 2
Risk Factors................................................ 3
About EPR................................................... 9
Properties.................................................. 12
Use of Proceeds............................................. 14
Ratio of Earnings to Fixed Charges and Preferred Share
Dividends................................................. 14
Federal Income Tax Consequences............................. 15
Description of Securities................................... 24
Plan of Distribution........................................ 28
Legal Matters............................................... 29
Experts..................................................... 29
ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission ("SEC") using a "shelf registration" process.
Under this shelf process, Entertainment Properties Trust ("we," "EPR" or the
"Company") may sell any combination of the securities described in this
Prospectus in one or more offerings up to a maximum aggregate offering amount of
$125,000,000.
This Prospectus provides you with a general description of the securities
we may offer. Each time we offer and sell securities, we will provide a
Prospectus Supplement that contains specific information about the terms of the
offering and the securities offered. The Prospectus Supplement may also update
or change information provided in this Prospectus. You should read both this
Prospectus and the applicable Prospectus Supplement and the other information
described in "Where You Can Find More Information" and "Incorporation of Certain
Information by Reference" prior to investing. We may only use this Prospectus to
sell securities if it is accompanied by a Prospectus Supplement.
WHERE YOU CAN FIND MORE INFORMATION
As a public company with securities listed on the New York Stock Exchange
("NYSE"), we must comply with the Securities Exchange Act of 1934 ("Exchange
Act"). This requires that we file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
reports, proxy statements or other information we file at the SEC's Public
Reference Rooms at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549 and at the SEC's regional offices at 233 Broadway, New
York, New York 10279 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Please call the SEC at 1-800-SEC-0330 for further
information. Copies of these materials may be obtained by mail from the Public
Reference Rooms of the SEC. You may also access our SEC filings at the SEC's
Internet website (http://www.sec.gov). You can inspect reports and other
information we file at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
We have filed a registration statement which includes this Prospectus plus
related Exhibits with the SEC under the Securities Act of 1933 (the "Securities
Act"). The registration statement contains additional information about EPR and
the securities. You may view the registration statement and Exhibits on file at
the SEC's website. You may also inspect the registration statement and Exhibits
without charge at the SEC's offices at 450 Fifth Street, N.W., Washington, D.C.
20549, and you may obtain copies from the SEC at prescribed rates.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this Prospectus. Any statement contained in a document which
is incorporated by reference in this Prospectus is automatically updated and
superseded if information contained in this Prospectus, or information we later
file with the SEC, modifies or replaces that information.
The documents listed below have been filed by EPR under the Exchange Act
(File No. 1-13561) and are incorporated by reference in this Prospectus:
1. EPR's Annual Report on Form 10-K for the year ended December 31,
2001.
2. EPR's Definitive Proxy Statement dated April 18, 2002.
3. EPR's Current Reports on Form 8-K dated February 5, March 15 and
April 12, 2002.
4. EPR's Quarterly Report on Form 10-Q for the quarter ended March 31,
2002.
5. All documents filed by EPR under Section 13(a), 14 or 15(d) of the
Exchange Act after the date of this Prospectus and prior to the termination
of the offering of the securities covered by this Prospectus.
1
To obtain a free copy of any of the documents incorporated by reference in
this Prospectus (other than Exhibits, unless they are specifically incorporated
by reference in the documents) please contact us at:
INVESTOR RELATIONS DEPARTMENT
ENTERTAINMENT PROPERTIES TRUST
30 W. PERSHING ROAD, SUITE 201
KANSAS CITY, MISSOURI 64108
(816) 472-1700
FAX (816) 472-5794
EMAIL info@eprkc.com
Our SEC filings are also available from our Internet website at
http://www.eprkc.com.
As you read these documents, you may find some differences in information
from one document to another. If you find differences between the documents and
this Prospectus, you should rely on the statements made in the most recent
document.
You should rely only on the information contained in this Prospectus or
incorporated by reference. We have not authorized anyone to provide you with
information that is different. We may only use this Prospectus to sell
securities if it is accompanied by a Prospectus Supplement describing those
securities. We are only offering the securities in states where the offer is
permitted. You should not assume the information in this Prospectus or the
applicable Prospectus Supplement is accurate as of any date other than the date
on the front of these documents.
FORWARD-LOOKING STATEMENTS
With the exception of historical information, this Prospectus and our
reports filed under the Exchange Act and incorporated by reference in this
Prospectus contain forward-looking statements, such as those pertaining to the
acquisition and leasing of properties, our capital resources and our results of
operations. 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," or other comparable terms, or by
discussions of strategy, plans or intentions. Forward-looking statements are
necessarily dependent on assumptions, data or methods that may be incorrect or
imprecise. EPR's actual financial condition, results of operations or business
may vary materially from those contemplated by these forward-looking statements
and involve various uncertainties, including but not limited to the factors
described below under "Risk Factors." We caution you not to place undue reliance
on any forward-looking statements, which reflect our analysis only.
2
RISK FACTORS
Before you invest in our securities, you should be aware that purchasing
our securities involves various risks, including those described below. You
should carefully consider these risk factors, together with the other
information in this Prospectus and accompanying Prospectus Supplement, before
purchasing our securities.
RISKS THAT MAY IMPACT OUR FINANCIAL CONDITION OR PERFORMANCE
WE COULD BE ADVERSELY AFFECTED BY A TENANT'S BANKRUPTCY
If a tenant becomes bankrupt or insolvent, that could diminish the income
we expect from that tenant's leases. We may not be able to evict a tenant solely
because of its bankruptcy. On the other hand, a bankruptcy court might authorize
the tenant to terminate its leases with us. If that happens, our claim against
the bankrupt tenant for unpaid future rent would be subject to statutory
limitations that might be substantially less than the remaining rent owed under
the leases. In addition, any claim we have for unpaid past rent would likely not
be paid in full. Two of our tenants, Edwards Theatre Circuits, Inc. (which is
now a division of Regal Entertainment Group) and Loews Cineplex Entertainment,
have filed for bankruptcy protection, as have other operators.
The development of megaplex movie theatres has rendered many older
multiplex theatres obsolete. To the extent our tenants own a substantial number
of multiplexes, they have been, or may in the future be, required to take
significant charges against earnings resulting from this obsolescence. Megaplex
theatre operators could also be adversely affected by any overbuilding of
megaplex theatres in their markets and the cost of financing, building and
leasing megaplex theatres.
OPERATING RISKS IN THE ENTERTAINMENT INDUSTRY MAY AFFECT THE ABILITY OF OUR
TENANTS TO PERFORM UNDER THEIR LEASES
The ability of our tenants to operate successfully in the entertainment
industry and remain current on their lease obligations depend on a number of
factors, including the availability and popularity of motion pictures, the
performance of those pictures in tenants' markets, the allocation of popular
pictures to tenants and the terms on which the pictures are licensed. Neither we
nor our tenants control the operations of motion picture distributors. Megaplex
theatres represent a greater capital investment, and generate higher rents, than
the previous generation of multiplex theatres. For this reason, the ability of
our tenants to operate profitably and perform under their leases could be
dependent on their ability to generate higher revenues per screen than multiplex
theatres typically produce.
The success of "out-of-home" entertainment venues such as megaplex theatres
and entertainment-themed retail centers also depends on general economic
conditions and the willingness of consumers to spend time and money on
out-of-home entertainment.
A SINGLE TENANT REPRESENTS A SUBSTANTIAL PORTION OF OUR LEASE REVENUES
Approximately 74% of the total number of our megaplex theatre properties
(including one joint venture property) are leased to American Multi-Cinema, Inc.
("AMC"), a subsidiary of AMC Entertainment, Inc. ("AMCE") and one of the
nation's largest movie exhibition companies in terms of revenues and number of
screens. Our property and lease concentration with AMC will increase as a result
of several current and planned theatre acquisitions and leases to AMC. AMCE has
guaranteed AMC's performance under the leases. We have diversified and expect to
continue to diversify our real estate portfolio by entering into lease
transactions with a number of other leading theatre operators. Nevertheless, we
expect to continue acquiring properties from and leasing properties to AMC, and
our revenues and our continuing ability to pay shareholder dividends and
interest on any debt securities we may offer remain substantially dependent on
AMC's performance under its leases and AMCE's performance under its guaranty.
It is also possible that some theatre operators may be reluctant to lease
from us because of our strong relationship with AMC. We believe AMC occupies a
stronger position when compared with other theatre
3
operators and we intend to continue acquiring and leasing back AMC theatres.
However, if for any reason AMC failed to perform under its lease obligations and
AMCE did not perform under its guaranty, we could be required to reduce or
suspend our shareholder dividends and any debt security interest payments, and
may not have sufficient funds to support operations, until substitute tenants
are obtained. If that happened, we cannot predict when or whether we could
obtain substitute quality tenants on acceptable terms. Peter C. Brown, the
Chairman of our Board of Trustees, is Chairman of AMCE. We believe the lease
terms between the Company and AMC are comparable to those available from other
tenants of comparable credit quality. Mr. Brown does not participate in
discussions between the Company and AMC regarding acquisitions of AMC properties
or lease terms concerning AMC properties.
THERE IS RISK IN USING DEBT TO FUND PROPERTY ACQUISITIONS
We have used debt to acquire properties and expect to continue to do so in
the future. Although the use of debt (known as "leverage") is common in the real
estate industry, our use of debt to acquire properties does expose us to some
risks. If a significant number of our tenants fail to make their lease payments
and we don't have sufficient cash to pay principal and interest on the debt, we
could default on our debt obligations. Our debt financing is secured by
mortgages on our properties. If we fail to make our mortgage payments, the
lenders could declare a default and foreclose on those properties.
A PORTION OF OUR SECURED DEBT HAS "HYPER-AMORTIZATION" PROVISIONS WHICH MAY
REQUIRE US TO REFINANCE THE DEBT OR SELL THE PROPERTIES SECURING THE DEBT PRIOR
TO MATURITY
As of December 31, 2001, we had approximately $100 million outstanding
under secured mortgage arrangements which contain "hyper-amortization" features
which will start coming due in 2008. In these loans, the principal payment
schedule is rapidly accelerated, and our principal payments are substantially
increased, after a period of time but prior to the maturity date of the loan. We
undertook this debt on the assumption that we can refinance the debt when these
hyper-amortization payments become due. If we cannot obtain acceptable
refinancing at the appropriate time, the hyper-amortization payments will
require that substantially all of the revenues from the properties securing the
debt be applied to the debt repayment, which would substantially reduce our
common share dividend rate and could adversely affect our financial condition
and liquidity and our ability to pay any preferred share dividends or interest
payments on any debt securities.
WE MUST OBTAIN NEW FINANCING IN ORDER TO GROW
As a REIT, we are required to distribute at least 90% of our net income to
shareholders in the form of dividends. This means we are limited in our ability
to use internal capital to acquire properties and must continually raise new
capital in order to continue to grow and diversify our real estate portfolio.
Our ability to raise new capital depends in part on factors beyond our control,
including conditions in equity and credit markets, conditions in the cinema
exhibition industry and the performance of real estate investment trusts
generally. We continually consider and evaluate a variety of potential
transactions to raise additional capital, but we cannot assure that attractive
alternatives will always be available to us, nor that our common share price
will increase or remain at a level that will permit us to continue to raise
equity capital privately or publicly.
IF WE FAIL TO QUALIFY AS A REIT WE WOULD BE TAXED AS A CORPORATION, WHICH WOULD
SUBSTANTIALLY REDUCE FUNDS AVAILABLE FOR PAYMENT OF DIVIDENDS TO OUR
SHAREHOLDERS
If we fail to qualify as a REIT for federal income tax purposes, we will be
taxed as a corporation. We are organized and believe we qualify as a REIT, and
intend to operate in a manner that will allow us to continue to qualify as a
REIT. However, we cannot assure you that we will remain qualified in the future.
This is because qualification as a REIT involves the application of highly
technical and complex provisions of the Internal Revenue Code on which there are
only limited judicial and administrative interpretations, and depends on facts
and circumstances not entirely within our control. In addition, future
legislation, new regulations, administrative interpretations or court decisions
may significantly change the tax laws, the application of the tax laws to our
qualification as a REIT or the federal income tax consequences of that
qualification.
4
If we fail to qualify as a REIT we will face tax consequences that will
substantially reduce the funds available for payment of dividends:
- We would not be allowed a deduction for dividends paid to shareholders in
computing our taxable income and would be subject to federal income tax
at regular corporate rates
- We could be subject to the federal alternative minimum tax and possibly
increased state and local taxes
- Unless we are entitled to relief under statutory provisions, we could not
elect to be treated as a REIT for four taxable years following the year
in which we were disqualified
In addition, if we fail to qualify as a REIT, we will no longer be required to
pay dividends (other than any mandatory dividends on any preferred shares we may
offer). As a result of these factors, our failure to qualify as a REIT could
adversely affect the market price for our common shares and the value of any
preferred shares and warrants we may offer.
RISKS THAT APPLY TO OUR REAL ESTATE BUSINESS
THERE ARE RISKS ASSOCIATED WITH OWNING AND LEASING REAL ESTATE
Although our lease terms obligate the tenants to bear substantially all of
the costs of operating the properties, investing in real estate involves a
number of risks, including:
- The risk that tenants will not perform under their leases, reducing our
income from the leases or requiring us to assume the cost of performing
obligations (such as taxes, insurance and maintenance) that are the
tenant's responsibility under the lease
- The risk that changes in economic conditions or real estate markets may
adversely affect the value of our properties
- The risk that local conditions (such as oversupply of megaplex theatres
or other entertainment-related properties) could adversely affect the
value of our properties
- We may not always be able to lease properties at favorable rates
- We may not always be able to sell a property when we desire to do so at a
favorable price
- Changes in tax, zoning or other laws could make properties less
attractive or less profitable
If a tenant fails to perform on its lease covenants, that would not excuse us
from meeting any mortgage debt obligation secured by the property and could
require us to fund reserves in favor of our mortgage lenders, thereby reducing
funds available for payment of dividends on our shares and interest payments on
any debt securities we may offer. We cannot be assured that tenants will elect
to renew their leases when the terms expire. If a tenant does not renew its
lease or if a tenant defaults on its lease obligations, there is no assurance we
could obtain a substitute tenant on acceptable terms. If we cannot obtain
another quality movie exhibitor to lease a megaplex theatre property, we may be
required to modify the property for a different use, which may involve a
significant capital expenditure and a delay in re-leasing the property.
SOME POTENTIAL LOSSES ARE NOT COVERED BY INSURANCE
Our leases require the tenants to carry comprehensive liability, casualty,
workers' compensation, extended coverage and rental loss insurance on our
properties. We believe the required coverage is of the type, and amount,
customarily obtained by an owner of similar properties. We believe all of our
properties are adequately insured. However, there are some types of losses, such
as catastrophic acts of nature, for which we or our tenants cannot obtain
insurance at an acceptable cost. If there is an uninsured loss or a loss in
excess of insurance limits, we could lose both the revenues generated by the
affected property and the capital we have invested in the property. We would,
however, remain obligated to repay any mortgage indebtedness or other
obligations related to the property.
5
JOINT VENTURES MAY LIMIT FLEXIBILITY WITH JOINTLY OWNED INVESTMENTS
We have an interest in an unconsolidated joint venture that owns a megaplex
theatre property and may acquire or develop additional properties in joint
ventures with third parties when those transactions appear desirable. We would
not own the entire interest in any property acquired by a joint venture. If we
have a dispute with a joint venture partner, we may feel it necessary or become
obligated to acquire the partner's interest in the venture. However, we cannot
assure you that the price we would have to pay or the timing of the acquisition
would be favorable to us. If we own less than a 50% interest in a joint venture,
or if the joint venture is jointly controlled, the assets and financial results
of the joint venture may not be reportable by us on a consolidated basis, and
the liabilities of the joint venture may not be included within the liabilities
reported on our consolidated balance sheet. To the extent we owe commitments to,
or are dependent on, any such "off-balance sheet" arrangements, or if those
arrangements or their properties or leases are subject to material
contingencies, our liquidity, financial condition and operating results could be
adversely affected by those off-balance sheet arrangements.
WE FACE ADDITIONAL RISKS IF WE DEVELOP PROPERTIES
Our entertainment-themed retail center ("ETRC") in Westminster, Colorado
and similar properties we may seek to develop in the future involve risks not
typically encountered in the purchase and lease-back of megaplex theatres which
are developed by the operator. The ownership or development of retail centers
exposes us to the risk that a sufficient number of suitable tenants may not be
found to enable the center to operate profitably and provide a return to us.
Retail centers are also subject to fluctuations in occupancy rates, which could
affect our operating results.
FAILURE TO COMPLY WITH THE AMERICANS WITH DISABILITIES ACT AND OTHER LAWS COULD
RESULT IN SUBSTANTIAL COSTS
The operators of our properties must comply with the Americans with
Disabilities Act ("ADA"). The ADA requires that public accommodations reasonably
accommodate individuals with disabilities and that new construction or
alterations be made to commercial facilities to conform to accessibility
guidelines. Failure to comply with the ADA can result in injunctions, fines,
damage awards to private parties and additional capital expenditures to remedy
noncompliance. Our leases require the tenants to comply with the ADA, and we
believe our tenants provide disabled access in compliance with the ADA.
The operators of our properties are also subject to various other federal,
state and local regulatory requirements. We believe the properties are in
material compliance with all applicable regulatory requirements. However, we do
not know whether existing requirements will change or whether compliance with
future requirements will involve significant unanticipated expenditures.
Although these expenditures would be the responsibility of our tenants, if
tenants fail to perform these obligations, we may be required to do so.
POTENTIAL LIABILITY FOR ENVIRONMENTAL CONTAMINATION COULD RESULT IN
SUBSTANTIAL COSTS
Under federal, state and local environmental laws, we may be required to
investigate and clean up any release of hazardous or toxic substances or
petroleum products at our properties, regardless of our knowledge or actual
responsibility, simply because of our current or past ownership of the real
estate. If unidentified environmental problems arise, we may have to make
substantial payments, which could adversely affect our cash flow and our ability
to make distributions to our shareholders. This is so because:
- As owner we may have to pay for property damage and for investigation and
clean-up costs incurred in connection with the contamination
- The law may impose clean-up responsibility and liability regardless of
whether the owner or operator knew of or caused the contamination
- Even if more than one person is responsible for the contamination, each
person who shares legal liability under environmental laws may be held
responsible for all of the clean-up costs
6
- Governmental entities and third parties may sue the owner or operator of
a contaminated site for damages and costs
These costs could be substantial and in extreme cases could exceed the value of
the contaminated property. The presence of hazardous substances or petroleum
products or the failure to properly remediate contamination may adversely affect
our ability to borrow against, sell or lease an affected property. In addition,
some environmental laws create liens on contaminated sites in favor of the
government for damages and costs it incurs in connection with a contamination.
Our leases require the tenants to operate the properties in compliance with
environmental laws and to indemnify us against environmental liability arising
from the operation of the properties. We believe all of our properties are in
material compliance with environmental laws. However, we could be subject to
strict liability under environmental laws because we own the properties. There
is also a risk that tenants may not satisfy their environmental compliance and
indemnification obligations under the leases. Any of these events could
substantially increase our cost of operations, require us to fund environmental
indemnities in favor of our secured lenders and reduce our ability to service
our secured debt and pay dividends to shareholders and any debt security
interest payments. Environmental problems at any properties could also put us in
default under loans secured by those properties, as well as loans secured by
unaffected properties.
REAL ESTATE INVESTMENTS ARE RELATIVELY NON-LIQUID
We may desire to sell a property in the future because of changes in market
conditions or poor tenant performance or to avail ourselves of other
opportunities. We may also be required to sell a property in the future to meet
secured debt, preferred share dividend and any debt security interest
obligations or to avoid a secured debt loan default. Specialty real estate
projects such as megaplex theatres cannot always be sold quickly, and we cannot
assure you that we could always obtain a favorable price. We may be required to
invest in the restoration or modification of a property before we can sell it.
RISKS THAT MAY AFFECT THE MARKET PRICE OF OUR SECURITIES
WE CANNOT ASSURE YOU WE WILL CONTINUE PAYING DIVIDENDS AT HISTORICAL RATES
Our ability to continue paying dividends on our common shares at historical
rates or to increase our common share dividend rate, and our ability to pay
preferred share dividends and interest on debt securities, will depend on a
number of factors, including our financial condition and results of future
operations, the performance of lease terms by tenants, provisions in our secured
loan covenants, and, in the case of common share dividends, our ability to
acquire, finance and lease additional properties at attractive rates. If we do
not maintain or increase the dividend rate on our common shares, that could have
an adverse effect on the market price of our common shares and other securities.
Any preferred shares we may offer may have a fixed dividend rate which would not
increase with any increases in the dividend rate on our common shares.
Conversely, payment of dividends on our common shares may be subject to payment
in full of the dividends on any preferred shares and payment of interest on any
debt securities we may offer.
MARKET INTEREST RATES MAY HAVE AN EFFECT ON THE VALUE OF OUR SECURITIES
One of the factors that investors may consider in deciding whether to buy
or sell our securities is our dividend rate as a percentage of our share or unit
price, relative to market interest rates. If market interest rates increase,
prospective investors may desire a higher dividend or interest rate on our
securities or seek securities paying higher dividends or interest.
MARKET PRICES FOR OUR SECURITIES MAY BE AFFECTED BY PERCEPTIONS ABOUT THE
FINANCIAL HEALTH OR SHARE VALUE OF OUR TENANTS OR THE PERFORMANCE OF REIT
STOCKS GENERALLY.
To the extent any of our tenants or other movie exhibitors report losses or
slower earnings growth, take charges against earnings resulting from the
obsolescence of multiplex theatres or enter bankruptcy proceed-
7
ings, the market price for our securities could be adversely affected. The
market price for our securities could also be affected by any weakness in movie
exhibitor stocks generally. We believe these trends had an adverse impact on our
common share price in 2000 and 2001 and could have an adverse impact in the
future if those trends persist in the cinema exhibition industry.
LIMITS ON CHANGES IN CONTROL MAY DISCOURAGE TAKEOVER ATTEMPTS WHICH MAY BE
BENEFICIAL TO OUR SHAREHOLDERS
There are a number of provisions in our Declaration of Trust, Maryland law
and agreements we have with others which could make it more difficult for a
party to make a tender offer for our common shares or complete a takeover of EPR
which is not approved by our Board of Trustees. These include:
- A staggered Board of Trustees that can be increased in number without
shareholder approval
- A limit on beneficial ownership of our shares, which acts as a defense
against a hostile takeover or acquisition of a significant or controlling
interest, in addition to preserving our REIT status
- The ability of the Board of Trustees to issue preferred shares, including
any preferred shares offered by this Prospectus, or reclassify preferred
or common shares, without shareholder approval
- Limits on the ability of shareholders to remove trustees without cause
- Requirements for advance notice of shareholder proposals at annual
shareholder meetings
- Provisions of Maryland law restricting business combinations and control
share acquisitions not approved by the Board of Trustees
- AMCE's ability to terminate a Right to Purchase Agreement for additional
megaplex theatre properties if there is a change in control of EPR
- Provisions of Maryland law limiting a court's ability to scrutinize the
trustees' exercise of their business judgment in the event of a hostile
takeover
- Provisions in secured loan or joint venture agreements putting EPR in
default upon a change in control
- Provisions of employment agreements with our officers calling for share
purchase loan forgiveness upon a hostile change in control
Any or all of these provisions could delay or prevent a change in control of
EPR, even if the change was in our shareholders' interest or offered a greater
return to our shareholders.
THE MARKET PRICE FOR OUR COMMON SHARES COULD BE ADVERSELY AFFECTED BY ANY
PREFERRED SHARES, WARRANTS OR DEBT SECURITIES WE MAY OFFER.
If we offer any preferred shares, warrants or debt securities on terms
which are not deemed accretive to our common shareholders, that may adversely
affect the market price for our common shares. In addition, the issuance of
warrants may create a significant market "overhang" which could be dilutive to
our common shareholders and adversely affect our common share price.
RISKS OF OWNING PREFERRED
SHARES, WARRANTS OR DEBT SECURITIES
THERE MAY NOT BE A MARKET FOR OUR PREFERRED SHARES, WARRANTS OR DEBT
SECURITIES.
We may or may not apply to list any preferred shares, warrants or debt
securities we offer for trading on the New York Stock Exchange. At the present
time, there is no public market for any of our securities other than our common
shares. We cannot assure you there will be a public market for any preferred
shares, warrants or debt securities we may offer. If a public market does not
develop for our preferred shares, warrants or debt securities, they may
represent a non-liquid investment.
8
HOLDERS OF OUR PREFERRED SHARES MAY HAVE NO VOTING RIGHTS WITH RESPECT TO
THOSE SHARES.
We anticipate that any preferred shares we may offer may be non-voting. For
this reason, holders of preferred shares may have no voice in the election of
trustees or any other matters submitted to a vote of our common shareholders.
ANY PREFERRED SHARES OR DEBT SECURITIES MAY NOT BE CONVERTIBLE INTO OR
EXCHANGEABLE FOR COMMON SHARES.
We may offer preferred shares or debt securities which are not convertible
into or exchangeable for common shares. If there is no market for our preferred
shares or debt securities, the holders of those securities may not have the
right to exchange them for a security for which there is a market.
IF YOU PURCHASE DEBT SECURITIES, YOU WILL BE AN UNSECURED CREDITOR BEHIND THE
HOLDERS OF OUR SENIOR DEBT.
Any debt securities we may offer will be unsecured obligations of the
Company and will be junior in payment to all existing and future mortgage
indebtedness of the Company. The holders of any debt securities may have no
access to our assets if we default in payment of any interest or principal under
the debt securities. All of our existing senior debt is secured by mortgages on
our properties, and we anticipate that any additional senior debt we may obtain
in the future would also be secured by mortgages. If we liquidate, dissolve or
enter bankruptcy proceedings, the holders of our senior secured debt would be
entitled to be paid before the holders of any of our debt securities.
OUR SECURED DEBT COVENANTS MAY RESTRICT OUR ABILITY TO PAY DIVIDENDS ON
PREFERRED SHARES AND INTEREST ON DEBT SECURITIES.
Our existing secured debt covenants limit our common share dividend rate to
90% of Funds from Operations ("FFO"). (FFO is generally defined as net income
plus depreciation and certain other non-cash items.) The dividend rate we may
pay on any preferred shares and the interest rate we may pay on any debt
securities we offer may be subject to similar restrictions. Our secured loan
covenants may also restrict us from paying interest on debt securities until
principal and interest under the secured loans are paid or provided for.
WARRANTS MAY NOT BE "IN THE MONEY" AFTER THEY ARE ISSUED.
Purchasers of any warrants we may issue will be subject to the risk that
our common share price may decrease below the exercise price of the warrants,
which would make it uneconomical to exercise the warrants and thus adversely
affect the value of the warrants.
ABOUT EPR
BUSINESS
EPR was formed in 1997 as a Maryland real estate investment trust ("REIT")
to capitalize on opportunities created by the development of destination
entertainment and entertainment-related properties, including megaplex movie
theatre complexes. We completed an initial public offering of our shares on
November 18, 1997. We are the first publicly-traded REIT formed exclusively to
invest in entertainment-related properties.
EPR is a self-administered REIT. As of May 17, 2002, our real estate
portfolio consists of 31 megaplex theatre properties (including one joint
venture property) located in 12 states, one ETRC located in Westminster,
Colorado, and land parcels and related properties adjacent to several of our
theatre properties. Our theatre properties are leased to prominent theatre
operators, including AMC, Muvico Entertainment LLC ("Muvico"), Edwards Theatre
Circuits, Inc., a division of Regal Entertainment Group ("Edwards"),
Consolidated Theatres ("Consolidated") and Loews Cineplex Entertainment
("Loews").
Megaplex theatres typically have at least 14 screens with stadium-style
seating (seating with elevation between rows to provide unobstructed viewing)
and are equipped with amenities that significantly enhance the audio and visual
experience of the patron. We believe the development of megaplex theatres has
accelerated
9
the obsolescence of many existing movie theatres by setting new standards for
moviegoers, who, in our experience, have demonstrated their preference for the
more attractive surroundings, wider variety of films and superior customer
service typical of megaplex theatres (see "Operating risks in the entertainment
industry may affect the ability of our tenants to perform under their leases"
and "Market prices for our securities may be affected by perceptions about the
financial health or share value of our tenants or the performance of REIT stocks
generally" under "Risk Factors").
We expect the development of megaplex theatres to continue in the United
States and abroad for the foreseeable future. With the development of the
stadium style megaplex theatre as the preeminent store format for cinema
exhibition, the older generation of flat-floor theatres has generally
experienced a significant downturn in attendance and performance. As a result of
the significant capital commitment involved in building these new properties and
the experience and industry relationships of our management, we believe we will
continue to have opportunities to provide capital to businesses that seek to
develop and operate these properties but would prefer to lease rather than own
the properties in order to minimize the impact of real estate ownership on their
balance sheets. We believe our ability to finance these properties will enable
us to continue to grow and diversify our asset base.
BUSINESS OBJECTIVES AND STRATEGIES
Our principal business strategy is to continue acquiring high-quality
properties leased to leading entertainment and entertainment-related business
operators, generally under long-term triple-net leases that require the tenant
to pay substantially all expenses associated with the operation and maintenance
of the property.
Our business objective is to continue enhancing shareholder value by
achieving predictable and increasing FFO per share through the acquisition of
high-quality properties leased to entertainment and entertainment-related
business operators. We intend to achieve this objective by continuing to execute
the Growth Strategies, Operating Strategies and Capitalization Strategies
described below:
GROWTH STRATEGIES
FUTURE PROPERTIES
We intend to continue pursuing acquisitions of high-quality
entertainment-related properties from operators with a strong market presence.
As a part of our growth strategy, we will consider developing additional
megaplex theatre properties and developing or acquiring ETRCs and single-tenant,
out-of-home, location-based entertainment and entertainment-related properties.
OPERATING STRATEGIES
LEASE RISK MINIMIZATION
To avoid initial lease-up risks and produce a predictable income stream, we
typically acquire single-tenant properties that are leased under long-term
leases. We believe our willingness to make long-term investments in properties
offers tenants financial flexibility and allows tenants to allocate capital to
their core businesses.
LEASE STRUCTURE
We typically structure leases on a triple-net basis under which the tenants
bear the principal portion of the financial and operational responsibility for
the properties. During each lease term and any renewal periods, the leases
typically provide for periodic increases in rent and/or percentage rent based
upon a percentage of the tenant's gross sales over a pre-determined level.
10
TENANT RELATIONSHIPS
We intend to continue developing and maintaining long-term working
relationships with theatre, restaurant and other entertainment-related business
operators and developers by providing capital for multiple properties on a
national or regional basis, thereby enhancing efficiency and value to those
operators and to the Company.
PORTFOLIO DIVERSIFICATION
We will endeavor to further diversify our asset base by property type,
geographic location and tenant. In pursuing this diversification strategy, we
will target theatre, restaurant, retail and other entertainment-related business
operators which management views as leaders in their market segments and which
have the financial strength to compete effectively and perform under their
leases with us.
CAPITALIZATION STRATEGIES
USE OF LEVERAGE; DEBT TO TOTAL CAPITALIZATION
We seek to enhance shareholder return through the use of leverage (see
"Risk Factors -- "There is risk in using debt to fund property acquisitions").
In addition, we have issued and may in the future seek to issue additional
equity as circumstances warrant and opportunities to do so become available. We
expect to maintain a debt to total capitalization ratio (i.e., total debt of the
Company as a percentage of shareholders' equity plus total debt) of
approximately 50% to 55%.
JOINT VENTURES
We will examine and pursue potential joint venture opportunities with
institutional investors or developers if they are considered to add value to our
shareholders. We may employ higher leverage in joint ventures (see "Risk
Factors -- Joint ventures may limit flexibility with jointly held investments").
PAYMENT OF REGULAR DISTRIBUTIONS
We have paid and expect to continue paying quarterly dividend distributions
to our shareholders. Among the factors the Board of Trustees considers in
setting our common share dividend rate are the applicable REIT rules and
regulations that apply to distributions, the Company's results of operations,
including FFO per share, and the Company's Cash Available for Distribution. We
expect to periodically increase distributions on our common shares as FFO and
Cash Available for Distribution increase and as other considerations and factors
warrant (see "Risk Factors -- We cannot assure you we will continue paying
dividends at historical rates").
11
PROPERTIES
The following table lists the Company's properties, their locations,
acquisition dates, number of theatre screens, number of seats, gross square
footage, and the tenant. Except as otherwise noted, all of the real estate
investments listed below are owned or ground leased directly by the Company.
ACQUISITION BUILDING
PROPERTY LOCATION DATE SCREENS SEATS (GROSS SQ. FT) TENANT
-------- ----------------- ----------- ------- ------- -------------- ---------------
MEGAPLEX THEATRE PROPERTIES
Grand 24(3)................. Dallas, TX 11/97 24 5,067 98,175 AMC
Mission Valley 20(1)(3)..... San Diego, CA 11/97 20 4,361 84,352 AMC
Promenade 16(3)............. Los Angeles, CA 11/97 16 2,860 129,822 AMC
Ontario Mills 30(3)......... Los Angeles, CA 11/97 30 5,469 131,534 AMC
Lennox 24(1)(3)............. Columbus, OH 11/97 24 4,412 98,261 AMC
West Olive 16(3)............ St. Louis, MO 11/97 16 2,817 60,418 AMC
Studio 30(3)................ Houston, TX 11/97 30 6,032 136,154 AMC
Huebner Oaks 24(3).......... San Antonio, TX 11/97 24 4,400 96,004 AMC
First Colony 24(1)(6)....... Houston, TX 11/97 24 5,098 107,690 AMC
Oakview 24(6)............... Omaha, NE 11/97 24 5,098 107,402 AMC
Leawood Town Center 20(6)... Kansas City, MO 11/97 20 2,995 75,224 AMC
Gulf Pointe 30(2)(6)........ Houston, TX 2/98 30 6,008 130,891 AMC
South Barrington 30(6)...... Chicago, IL 3/98 30 6,210 130,891 AMC
Cantera 30(2)(5)............ Chicago, IL 3/98 30 6,210 130,757 AMC
Mesquite 30(2)(6)........... Dallas, TX 4/98 30 6,008 130,891 AMC
Hampton Town Center 24(6)... Norfolk, VA 6/98 24 5,098 107,396 AMC
Raleigh Grand 16(4)......... Raleigh, NC 8/98 16 2,596 51,450 Consolidated
Pompano 18(4)............... Pompano Beach, FL 8/98 18 3,424 73,637 Muvico
Paradise 24(6).............. Davie, FL 11/98 24 4,180 96,497 Muvico
Boise Stadium(1)(4)......... Boise, ID 12/98 20 4,734 140,300 Edwards
Aliso Veijo 20(6)........... Los Angeles, CA 12/98 20 4,352 98,557 Edwards
Westminster 24(7)........... Westminster, CO 6/99 24 4,812 107,000 AMC
Woodridge 18(2)(8).......... Woodridge, IL 6/99 18 4,343 80,600 Loews
Tampa Palms 20(8)........... Tampa, FL 6/99 20 4,200 83,000 Muvico
Palm Promenade 24(8)........ San Diego, CA 1/00 24 4,577 88,610 AMC
Crossroads 20(8)............ Raleigh, NC 1/00 20 3,936 77,475 Consolidated
Elmwood Palace 20(9)........ New Orleans, LA 3/02 20 4,357 90,391 AMC
Clearview Palace 12(9)...... New Orleans, LA 3/02 12 2,479 70,000 AMC
Hammond Palace 10(9)........ New Orleans, LA 3/02 10 1,531 39,850 AMC
Houma Palace 10(9).......... New Orleans, LA 3/02 10 1,871 44,450 AMC
WestBank Palace 16(9)....... New Orleans, LA 3/02 16 3,176 71,607 AMC
--- ------- ---------
SUBTOTAL MEGAPLEX THEATRES................................... 668 132,711 2,969,286
=== ======= =========
12
ACQUISITION BUILDING
PROPERTY LOCATION DATE SCREENS SEATS (GROSS SQ. FT) TENANT
-------- ----------------- ----------- ------- ------- -------------- ---------------
RETAIL AND RESTAURANT PROPERTIES
Westminster Promenade....... Westminster, CO 10/98 -- -- 140,000 Multi-Tenant
Pompano Kmart(8)............ Pompano Beach, FL 11/98 -- -- 80,540 Kmart
Nickels Restaurant(8)....... Pompano Beach, FL 11/98 -- -- 5,600 Nickels
On-The-Border(8)............ Dallas, TX 1/99 -- -- 6,580 Brinkers
Bennigan's(8)............... Houston, TX 5/00 -- -- 6,575 S & A
Bennigan's(8)............... Dallas, TX 5/00 -- -- 6,575 S & A
Texas Land & Cattle(8)...... Houston, TX 5/00 -- -- 6,600 Tx.C.C., Inc.
Texas Roadhouse(8).......... Dallas, TX 1/99 -- -- 6,000 TX Roadhouse
Roadhouse Grill(8).......... Atlanta, GA 8/00 -- -- 6,850 Roadhouse Grill
--- ------- ---------
Subtotal................ 265,320
--- ------- ---------
TOTAL...................................................... 668 132,711 3,234,606
=== ======= =========
---------------
(1) Third party ground leased property. Although the Company is the tenant under
the ground leases and has assumed responsibility for performing the
obligations thereunder, pursuant to the Leases, the theatre tenants are
responsible for performing the Company's obligations under the ground
leases.
(2) In addition to the theatre property itself, the Company has acquired land
parcels adjacent to the theatre property, which the Company has or intends
to ground lease or sell to restaurant or other entertainment themed
operators.
(3) Property is included as security for a $105 million mortgage facility.
(4) Property is included as security for a $20 million mortgage facility.
(5) Property is included in the Atlantic-EPR joint venture.
(6) Property is included as security for a $125 million mortgage facility.
(7) Property is included as security for a $17 million mortgage.
(8) Property is included as security for a $75 million credit facility.
(9) Property is included as security for a $50 million credit facility.
OFFICE LOCATION
Our executive office is located at 30 West Pershing Road, Suite 201, Kansas
City, Missouri 64108, and our telephone number is (816) 472-1700. The office
occupies approximately 5,200 square feet with an initial rent of $107,856
subject to annual escalations.
TENANTS AND LEASES
As of March 31, 2002, our existing leases on megaplex theatres provide for
aggregate annual rentals of approximately $64.4 million (on a consolidated
basis, excluding one joint venture property), or an average annual rental of
approximately $2.1 million per property. The leases have an average remaining
base term lease life of 13.9 years and may be extended for predetermined
extension terms at the option of the tenant. The leases are typically triple-net
leases that require the tenant to pay substantially all expenses associated with
the operation of the properties, including taxes, other governmental charges,
insurance, utilities, service, maintenance and any ground lease payments.
13
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, EPR
intends to use the net proceeds from any sale of common shares, preferred
shares, warrants or debt securities for general corporate purposes, including
the acquisition of properties and/or repayment of debt. Further details relating
to the use of net proceeds of any specific offering will be described in the
applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED SHARE DIVIDENDS
The following table describes the ratios of earnings to fixed charges and
preferred share dividends of EPR.
YEARS ENDED DECEMBER 31 THREE MONTHS
-------------------------------- ENDED
1997 1998 1999 2000 2001 MARCH 31, 2002
---- ---- ---- ---- ---- --------------
Ratio of earnings to fixed charges(1)(2)....... N/A 3.7 2.6 2.2 2.0 2.1
Ratio of earnings to combined fixed charges and
preferred share dividends(1)................. -- -- -- -- -- --
--- --- --- --- --- --------
---------------
(1) Assumes no preferred shares or debt securities are outstanding. If we offer
any preferred shares or debt securities, this table will be adjusted for the
issuance of those securities in the applicable Prospectus Supplement.
(2) The following computations were made in preparing this table:
YEARS ENDED DECEMBER 31 THREE MONTHS
---------------------------------------------- ENDED
1997 1998 1999 2000 2001 MARCH 31, 2002
------ ------- ------- ------- ------- --------------
(DOLLARS IN THOUSANDS)
FIXED CHARGES
Net interest expense............ $ -- $ 6,461 $13,278 $18,909 $20,334 $ 5,733
Add: preference dividend of
consolidated subsidiary....... -- -- -- -- -- 70
Add: interest income............ -- 149 160 247 268 217
Add: capitalized interest....... -- 397 476 664 881 255
------ ------- ------- ------- ------- -------
TOTAL FIXED CHARGES............. $ -- $ 7,007 $13,914 $19,820 $21,483 $ 6,275
====== ======= ======= ======= ======= =======
EARNINGS
Net income before minority
interest in and income from
joint venture................. $1,442 $19,238 $22,880 $22,068 $21,377 $ 6,572
Add: fixed charges.............. -- 7,007 13,914 19,820 21,483 6,275
Add: cash distributions from
joint venture................. -- -- 411 1,442 1,848 456
Subtract: preference dividend of
consolidated subsidiary....... -- -- -- -- -- (70)
------ ------- ------- ------- ------- -------
TOTAL EARNINGS.................. $1,442 $25,848 $36,729 $42,666 $43,827 $13,233
====== ======= ======= ======= ======= =======
14
FEDERAL INCOME TAX CONSEQUENCES
The following summary of material federal income tax consequences is based
on current law and does not intend to deal with all aspects of taxation that may
be relevant to particular shareholders in light of their personal investment or
tax circumstances, or to certain types of shareholders (including insurance
companies, financial institutions and broker-dealers) subject to special
treatment under the federal income tax laws.
YOU SHOULD CONSULT YOUR OWN TAX ADVISOR REGARDING THE SPECIFIC TAX
CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND SALE OF SHARES.
EPR believes it has operated in a manner that permits it to satisfy the
requirements for taxation as a REIT under the applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"). EPR intends to continue
to satisfy those requirements. No assurance can be given, however, that these
requirements will be met.
The provisions of the Code and the Treasury Regulations thereunder relating
to qualification and operation as a REIT are highly technical and complex. The
following describes the material aspects of the laws that govern the federal
income tax treatment of a REIT and its shareholders. This summary is qualified
in its entirety by the applicable Code provisions, rules and Treasury
Regulations thereunder, and administrative and judicial interpretations thereof.
Kutak Rock LLP has acted as tax counsel to the Company in connection with the
Company's election to be taxed as a REIT.
In the opinion of Kutak Rock LLP, commencing with the Company's taxable
year that ended on December 31, 1997, the Company has been organized in
conformity with the requirements for qualification as a REIT, and its method of
operation has and will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code. It must be emphasized that
this opinion is based on various assumptions and is conditioned upon certain
factual representations made by EPR. Moreover, our qualification and taxation as
a REIT depend upon our ability to meet, through actual annual operating results,
distribution levels and diversity of share ownership, and various qualification
tests imposed under the Code discussed below, the results of which will not be
reviewed by Kutak Rock LLP. Accordingly, no assurance can be given that the
actual results of our operations for any particular taxable year will satisfy
these requirements (See "Failure to Qualify").
In brief, if certain detailed conditions imposed by the REIT provisions of
the Code are satisfied, entities such as EPR that invest primarily in real
estate and that otherwise would be treated for federal income tax purposes as
corporations are generally not taxed at the corporate level on their "REIT
Taxable Income" (generally the REIT's taxable income adjusted for, among other
things, the disallowance of the dividends-received deduction generally available
to corporations) that is currently distributed to shareholders. This treatment
substantially eliminates the "double taxation" (i.e., taxation at both the
corporate and shareholder levels) that generally results from investing in
corporations.
If EPR fails to qualify as a REIT in any year, however, we will be subject
to federal income tax as if we were a domestic corporation, and our shareholders
will be taxed in the same manner as shareholders of ordinary corporations. In
this event, EPR could be subject to potentially significant tax liabilities and
the amount of cash available for distribution to our shareholders could be
reduced.
TAXATION OF THE COMPANY
GENERAL
In any year in which EPR qualifies as a REIT, in general, we will not be
subject to federal income tax on that portion of our net income that we
distribute to shareholders. However, EPR will be subject to federal income tax
in these regards: (a) EPR will be taxed at regular corporate rates on any
undistributed REIT Taxable Income, including undistributed net capital gains.
(However, a REIT can elect to "pass through" any of its taxes paid on its
undistributed net capital gain to its shareholders on a pro rata basis), (2)
under certain circumstances, EPR may be subject to the "alternative minimum tax"
on its items of tax preference, (3) if EPR has: (i) net income from the sale or
other disposition of "foreclosure property" which is held primarily
15
for sale to customers in the ordinary course of business; or (ii) other
nonqualifying income from foreclosure property, we will be subject to tax at the
highest corporate rate on such income, (4) if EPR has net income from
"prohibited transactions" (which are, in general, certain sales or other
dispositions of property held primarily for sale to customers in the ordinary
course of business other than property held for at least four years, foreclosure
property and property involuntarily converted), such income will be subject to a
100% tax, (5) if EPR fails to satisfy the 75% gross income test or the 95% gross
income test (as discussed below), and has nonetheless maintained its
qualification as a REIT because certain other requirements have been met, we
will be subject to a 100% tax on an amount equal to (a) the gross income
attributable to the greater of the amount by which EPR fails the 75% gross
income test or the 95% gross income test, multiplied by (b) a fraction intended
to reflect EPR's profitability, (6) if EPR fails to distribute during each
calendar year at least the sum of: (i) 85% of its ordinary income for that year;
(ii) 95% of its capital gain net income for that year; and (iii) any
undistributed taxable income from prior periods, EPR would be subject to a 4%
excise tax on the excess of such required distribution over the amounts actually
distributed, (7) if EPR acquires any asset from a C corporation (i.e., generally
a corporation subject to full corporate-level tax) in a transaction in which the
basis of the asset in EPR's hands is determined by reference to the basis of the
asset (or any other property) in the hands of the C corporation, and EPR
recognizes gain on the disposition of such asset during the 10 year period
beginning on the date on which that asset was acquired by EPR, then, to the
extent of any built-in gain at the time of acquisition, such gain will be
subject to tax at the highest regular corporate rate.
REQUIREMENTS FOR QUALIFICATION
The Code defines a REIT as a corporation, trust or association (1) which is
managed by one or more trustees or directors, (2) the beneficial ownership of
which is evidenced by transferable shares, or by transferable certificates of
beneficial interest, (3) which would be taxable as a domestic corporation but
for Sections 856 through 860 of the Code, (4) which is neither a financial
institution nor an insurance company subject to certain provisions of the Code,
(5) the beneficial ownership of which is held by 100 or more persons (the "100
person test"), (6) not more than 50% in value of the outstanding shares of which
is owned, directly or indirectly, by five or fewer individuals (as defined in
the Code) at any time during the last half of each taxable year (the
"closely-held test"), and (7) which meets certain other tests, described below,
regarding the nature of income and assets. The Code provides that conditions (1)
through (4) must be met during the entire taxable year and that condition (5)
must be met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. Conditions (5) and
(6) did not apply until after the first taxable year for which an election was
made by EPR to be taxed as a REIT. A REIT's failure to satisfy condition (6)
during a taxable year will not result in its disqualification as a REIT under
the Code for that taxable year as long as (i) the REIT satisfies the shareholder
demand statement requirements described in the succeeding paragraph and (ii) the
REIT did not know, or exercising reasonable diligence, would not have known,
whether it had failed condition (6). A REIT must also report its income for
federal income tax purposes based on the calendar year.
In order to assist EPR in complying with the 100 person test and the
closely-held test, and for certain non-tax purposes, we have placed certain
restrictions on the transfer of our shares to prevent further concentration of
share ownership (See "Description of Securities"). To evidence compliance with
these requirements, we must maintain records which disclose the actual ownership
of our outstanding shares. In fulfilling our obligations to maintain records, we
must demand written statements each year from the record holders of designated
percentages of our shares disclosing the actual owners of the shares. A list of
those persons failing or refusing to comply with such demand must be maintained
as part of EPR's records. A shareholder failing or refusing to comply with EPR's
written demand must submit with his or her tax returns a similar statement
disclosing the actual ownership of shares and certain other information. EPR's
Declaration of Trust provides restrictions regarding the transfer of shares that
are intended to assist EPR in continuing to satisfy the share ownership
requirements, among other purposes.
Although EPR intends to satisfy the shareholder demand letter rules
described in the preceding paragraph, our failure to satisfy these requirements
will not result in our disqualification as a REIT but may result in the
imposition of IRS penalties.
16
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership and will be deemed to be entitled to the income
of the partnership attributable to that share. In addition, the character of the
assets and gross income of a partnership shall retain the same character in the
hands of a partner qualifying as a REIT for purposes of Section 856 of the Code,
including satisfying the gross income tests and the asset tests described below.
ASSET TESTS
At the close of each quarter of EPR's taxable year, EPR must satisfy two
tests relating to the nature of its assets. First, at least 75% of the value of
EPR's total assets must be represented by interests in real property, interests
in mortgages on real property, shares in other REIT's, cash, cash items and
government securities (as well as certain temporary investments in stock or debt
instruments purchased with the proceeds of new capital raised by EPR). Second,
although the remaining 25% of EPR's assets generally may be invested without
restriction, securities in this class may not exceed either: (i) except with
respect to the stock of a taxable REIT subsidiary, 5% of the value of EPR's
total assets as to any one non-government issuer; (ii) except with respect to
the stock of a taxable REIT subsidiary, 10% of the outstanding voting securities
of any one issuer or 10% of the total value of the securities of such issuer; or
(iii) with respect to the securities of its taxable REIT subsidiary, 20% of the
value of EPR's total assets. In addition, EPR may own 100% of "qualified REIT
subsidiaries," which are, in general, corporate subsidiaries 100% owned by a
REIT which do not elect to be treated as a taxable REIT subsidiary. All assets,
liabilities and items of income, deduction and credit of a qualified REIT
subsidiary will be treated as owned and realized directly by EPR (See "REIT
Modernization Act" below). For purposes of the asset requirements, the
securities of a qualified REIT subsidiary will be ignored.
A taxable REIT subsidiary is any corporation the stock of which is owned in
whole or in part by a REIT and with respect to which both the REIT and the
subsidiary elect that it be taxed as a taxable REIT subsidiary.
GROSS INCOME TESTS
There are two separate percentage tests relating to the sources of EPR's
gross income which must be satisfied for each taxable year.
The 75% Test. At least 75% of EPR's gross income for each taxable year
must be "qualifying income." Qualifying income generally includes (i) "rents
from real property" (except as modified below), (ii) interest on obligations
collateralized by mortgages on, or interests in, real property, (iii) gains from
the sale or other disposition of interests in real property and real estate
mortgages, other than gain from property held primarily for sale to customers in
the ordinary course of EPR's trade or business ("dealer property"), (iv)
dividends or other distributions on shares in other REIT's, as well as gain from
the sale of those shares, (v) abatements and refunds of real property taxes,
(vi) income from the operation, and gain from the sale, of property acquired at
or in lieu of a foreclosure of the mortgage collateralized by such property
("foreclosure property"), and (vii) commitment fees received for agreeing to
make loans collateralized by mortgages on real property or to purchase or lease
real property.
In addition, rents received from a tenant will not qualify as rents from
real property in satisfying the 75% test (or the 95% test described below) if
EPR, or an owner of 10% or more of EPR, directly or constructively owns 10% or
more of the tenant (a "related party tenant"). In addition, if rent attributable
to personal property, leased in connection with a lease of real property, is
greater than 15% of the total rent received under the lease, then the portion of
rent attributable to such personal property will not qualify as rents from real
property. Moreover, an amount received or accrued generally will not qualify as
rents from real property (or as interest income) for purposes of the 75% and 95%
gross income tests if it is based in whole or in part on the income or profits
of any person. Rent or interest will not be disqualified, however, solely by
reason of being based on a fixed percentage of receipts or sales. Finally, for
rents received to qualify as rents from real property, EPR generally must not
operate or manage the property or furnish or render services to tenants,
17
other than through an "independent contractor" from whom EPR derives no revenue.
(However, see "REIT Modernization Act" below). The "independent contractor"
requirement, however, does not apply to the extent the services provided by EPR
are "usually or customarily rendered" in connection with the rental of space for
occupancy only, and are not otherwise considered "rendered to the occupant." For
both the related party tenant rules and determining whether an entity qualifies
as an independent contractor, certain attribution rules of the Code apply,
pursuant to which shares of a REIT held by one entity are deemed held by
another.
Under prior law, if a REIT provided impermissible services to its tenants,
all of the rent from those tenants would have been disqualified from satisfying
the 75% test and 95% test (described below). Rents are not disqualified if a
REIT provides de minimis impermissible services. Services provided to tenants
are considered de minimis where income derived from the services equals 1% or
less of all income derived from the property (threshold determined on a
property-by-property basis). For purposes of this 1% threshold, the amount
treated as received for any service shall not be less than 150% of the direct
cost to EPR in furnishing or rendering the services. For purposes of this
analysis, services provided through an independent contractor or a taxable REIT
subsidiary will not be considered rendered by the REIT.
The 95% Test. In addition to deriving 75% of its gross income from the
sources listed above, at least 95% of EPR's gross income for each taxable year
must be derived from the above-described qualifying income, or from dividends,
interest or gains from the sale or disposition of stock or other securities that
are not dealer property. Dividends and interest on any obligation not
collateralized by an interest in real property are included for purposes of the
95% test, but not for purposes of the 75% test. Furthermore income earned on
interest rate swaps and caps entered into as liability hedges against variable
rate indebtedness qualify for the 95% test (but not the 75% test). Income earned
on liability hedges against all of a REIT's indebtedness, such as options,
futures, and forward contracts, qualify for the 95% test (but not the 75% test).
In certain cases, Treasury Regulations treat a debt instrument and a liability
hedge as a synthetic debt instrument for all purposes of the Code. If a
liability hedge entered into by a REIT is subject to these rules, income earned
thereon will operate to reduce its interest expense, and, therefore such income
will not affect the REIT's compliance with either the 75% or 95% tests.
Even if EPR fails to satisfy one or both of the 75% or 95% tests for any
taxable year, it may still qualify as a REIT for that year if it is entitled to
relief under certain provisions of the Code. These relief provisions will
generally be available if (i) EPR's failure to comply was due to reasonable
cause and not to willful neglect, (ii) EPR reports the nature and amount of each
item of its income included in the 75% and 95% tests on a schedule attached to
its tax return, and (iii) any incorrect information on this schedule is not due
to fraud with intent to evade tax. It is not possible, however, to state whether
in all circumstances EPR would be entitled to the benefit of these relief
provisions. If these relief provisions apply, EPR will, however, still be
subject to a special tax upon the greater of the amount by which it fails either
the 75% or 95% test for that year.
ANNUAL DISTRIBUTION REQUIREMENTS
In order to qualify as a REIT, we are required to make distributions (other
than capital gain distributions) to our shareholders each year in an amount at
least equal to (A) the sum of (i) 90% of EPR's REIT Taxable Income (computed
without regard to the dividends paid deduction and the REIT's net capital gain),
and (ii) 90% of the net income (after tax), if any, from foreclosure property,
minus (B) the sum of certain items of non-cash income. Such distributions must
be paid in the taxable year to which they relate, or in the following taxable
year if declared before we timely file our tax return for that year and if paid
on or before the first regular distribution payment after such declaration. To
the extent we do not distribute all of our net capital gain or distribute at
least 90%, but less than 100%, of our REIT Taxable Income, as adjusted, we will
be subject to tax on the undistributed amount at regular capital gains or
ordinary corporate tax rates, as the case may be. (However, a REIT can elect to
"pass through" any of its taxes paid on its undistributed net capital gain to
its shareholders on a pro rata basis.) Furthermore, if the REIT should fail to
distribute during each calendar year at least the sum of (i) 85% of its ordinary
income for that year, (ii) 90% of its net capital gain for that year, and (iii)
any undistributed taxable income from prior periods, the REIT would be subject
to a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. For these purposes, dividends declared to shareholders of
record in October, November or December of one calendar
18
year and paid by January 31 of the following calendar year are deemed paid as of
December 31 of the initial calendar year.
We believe we have made and will make timely distributions sufficient to
satisfy the annual distribution requirements. It is possible that in the future
we may not have sufficient cash or other liquid assets to meet the 90%
distribution requirement, due to timing differences between the actual receipt
of income and actual payment of expenses on the one hand, and the inclusion of
such income and deduction of such expenses in computing our REIT Taxable Income
on the other hand. Further, it is possible that from time to time, we may be
allocated a share of net capital gain attributable to any depreciated property
we sell that exceeds our allocable share of cash attributable to that sale. To
avoid any problem with the 90% distribution requirement, we will closely monitor
the relationship between our REIT Taxable Income and cash flow and, if
necessary, will borrow funds in order to satisfy the distribution requirement
(See "Risk Factors").
If we fail to meet the 90% distribution requirement as a result of an
adjustment to our tax return by the IRS, we may retroactively cure the failure
by paying a "deficiency dividend" (plus applicable penalties and interest)
within a specified period.
FAILURE TO QUALIFY
If we fail to qualify for taxation as a REIT in any taxable year and the
relief provisions do not apply, we will be subject to tax (including any
applicable alternative minimum tax) on our taxable income at regular corporate
rates. Distributions to shareholders in any year in which we fail to qualify
will not be deductible by us, nor will they be required to be made. In such
event, to the extent of our current and accumulated earnings and profits, all
distributions to shareholders will be taxable as ordinary income, and, subject
to certain limitations in the Code, corporate shareholders may be eligible for
the dividends-received deduction. Unless entitled to relief under specific
statutory provisions, we will also be disqualified from taxation as a REIT for
the four taxable years following the year during which qualification was lost.
It is not possible to state whether we would be entitled to such statutory
relief.
REIT MODERNIZATION ACT
The REIT Modernization Act ("RMA") was passed by Congress and became
effective for tax years beginning after December 31, 2000. Among other things,
the RMA permits REITs to invest in taxable REIT subsidiaries ("TRS") subject to
certain limitations.
CHANGES TO THE ASSET TESTS
The RMA amended Section 856(c)(4) of the Code so that it now provides that,
except for real estate assets, cash and cash items (including receivables), and
government securities: (a) not more than 25% of the value of a REIT's total
assets can consist of securities, (b) not more than 20% of the value of a REIT's
total assets can be represented by securities of one or more TRSs, and (c)
except with respect to TRSs and the securities previously mentioned, (i) not
more than 5% of the value of the REIT's total assets can consist of securities
of any one issuer, and (ii) the REIT cannot hold securities having a value of
more than 10% of the total voting power or total value of the outstanding
securities of any one issuer. For purposes of the requirements of subparagraph
(ii), certain straight debt obligations may be disregarded.
IMPERMISSIBLE TENANT SERVICES INCOME
The RMA amended Section 856(d)(7)(C) of the Code so that it now provides
that income from services furnished or rendered, or management or operation
provided, through an independent contractor from whom the REIT does not derive
or receive any income or through a TRS does not constitute impermissible tenant
service income.
19
INCOME FROM TRS TREATED AS RENTS FROM REAL PROPERTY
The RMA amended Section 856(d) of the Code so that amounts paid to a REIT
by a TRS will not be excluded from rents from real property if at least 90% of
the leased space of the property is rented to persons other than the TRS of such
REIT and other than persons that are considered related under Section
856(d)(2)(B) of the Code and the amount paid is substantially comparable to
rents made by other tenants of the REIT's property for comparable space.
DETERMINATION OF RENT
The RMA made two amendments that affect the determination of rent. Section
856(d) of the Code was amended so that the allocation of rent between personal
and real property is now based on fair market value as opposed to adjusted
basis. In addition, Section 856(d)(2)(B) of the Code was amended so that it
excludes from the definition of rent amounts received from a party in which the
REIT owns 10% or more of the total value of its stock, rather than the total
number of shares or other beneficial interests.
DISTRIBUTION REQUIREMENT
The RMA amended Section 857(a) of the Code and reduced the amount of
distribution required by a REIT. Currently, a REIT must distribute to its
shareholders an amount equal to 90% of the REIT's taxable income before
deductions for dividends paid and excluding net capital gain.
TAXATION OF SHAREHOLDERS
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As used herein, the term "U.S. Shareholder" means a holder of shares who
(for U.S. federal income tax purposes) (i) is a citizen or resident of the
United States, (ii) is a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof (except, in the case of a partnership, the Treasury provides otherwise
by regulations), (iii) is an estate the income of which is subject to United
States federal income taxation regardless of its source, or (iv) is a trust
whose administration is subject to the primary supervision of a United States
court and which has one or more United States persons who have the authority to
control all substantial decisions of the trust. Notwithstanding the preceding
sentence, to the extent provided in regulations, certain trusts in existence on
August 20, 1996, and treated as United States persons prior to that date that
elect to continue to be treated as United States persons shall also be
considered U.S. Shareholders.
As long as EPR qualifies as a REIT, distributions made out of our current
or accumulated earnings and profits (and not designated as capital gain
dividends) will constitute dividends taxable to our taxable U.S. Shareholders as
ordinary income. Such distributions will not be eligible for the dividends
received deduction otherwise available with respect to dividends received by
U.S. Shareholders that are corporations. Distributions made by EPR that are
properly designated as capital gain dividends will be taxable to U.S.
Shareholders as gains (to the extent they do not exceed our actual net capital
gain for the taxable year) from the sale or disposition of a capital asset.
Depending on the period of time EPR held the assets which produced the gains,
and on certain designations, if any, which may be made by EPR, such gains may be
taxable to noncorporate U.S. Shareholders at a 20% or 25% rate. U.S.
Shareholders that are corporations may, however, be required to treat up to 20%
of certain capital gain dividends as ordinary income. To the extent EPR makes
distributions (not designated as capital gain dividends) in excess of our
current and accumulated earnings and profits, such distributions will be treated
first as a tax-free return of capital to each U.S. Shareholder, reducing the
adjusted basis which such U.S. Shareholder has in his shares for tax purposes by
the amount of such distribution (but not below zero), with distributions in
excess of a U.S. Shareholder's adjusted basis in his shares taxable as capital
gain, provided the shares have been held as a capital asset (which, with respect
to a non-corporate U.S. Shareholder, will be taxable as long-term capital gain
if the shares have been held for more than eighteen months, mid-term capital
gain if the shares have been held for more than one year but not more than
eighteen months, or short-term capital gain if the shares have been held for one
year or less). Dividends declared by EPR in October, November or December of any
year and payable to a shareholder of record on a specified
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date in any such month shall be treated as both paid by EPR and received by the
shareholder on December 31st of that year; provided the dividend is actually
paid by EPR on or before January 31st of the following calendar year.
Shareholders may not include in their own income tax returns any net operating
losses or capital losses of EPR.
Distributions made by EPR and gain arising from the sale of exchange by a
U.S. Shareholder of shares will not be treated as passive activity income, and,
as a result, U.S. Shareholders generally will not be able to apply any "passive
losses" against such income or gain. Distributions made by EPR (to the extent
they do not constitute a return of capital) generally will be treated as
investment income for purposes of computing the investment interest limitation.
Gain arising from the sale or other disposition of shares (or distributions
treated as such), will not be treated as investment income under certain
circumstances.
Upon any sale or other disposition of shares, a U.S. Shareholder will
recognize gain or loss for federal income tax purposes in an amount equal to the
difference between (i) the amount of cash and the fair market value of any
property received on such sale or other disposition, and (ii) the holder's
adjusted basis in the shares for tax purposes. Such gain or loss will be capital
gain or loss if the shares have been held by the U.S. Shareholder as a capital
asset and, with respect to a non-corporate U.S. Shareholder, will be long-term
gain or loss if the shares have been held for more than one year at the time of
disposition. In general, any loss recognized by a U.S. Shareholder upon the sale
or other disposition of shares that have been held for six months or less (after
applying certain holding period rules) will be treated as a long-term capital
loss, to the extent of capital gain dividends received by such U.S. Shareholder
from EPR which were required to be treated as long-term capital gains.
BACKUP WITHHOLDING
EPR will report to our domestic shareholders and to the IRS the amount of
dividends paid during each calendar year, and the amount of tax withheld, if any
from those dividends. Under the backup withholding rules, a shareholder may be
subject to backup withholding at the rate of 30% with respect to dividends paid
and redemption proceeds unless the shareholder (a) is a corporation or comes
within certain other exempt categories and, when required, demonstrates this
fact, or (b) provides a taxpayer identification number, certifies as to no loss
of exemption from backup withholding, and otherwise complies with applicable
requirements of the backup withholding rules. Notwithstanding the foregoing, EPR
will institute backup withholding with respect to a shareholder when instructed
to do so by the IRS. A shareholder that does not provide EPR with his correct
taxpayer identification number may also be subject to penalties imposed by the
IRS. Any amount paid as backup withholding will be creditable against the
shareholder's federal income tax liability.
TAXATION OF TAX-EXEMPT SHAREHOLDERS
The IRS has issued a revenue ruling in which it held that amounts
distributed by a REIT to a tax-exempt employees' pension trust do not constitute
unrelated business taxable income ("UBTI"). Revenue rulings, however, are
interpretive in nature and are subject to revocation or modification by the IRS.
Based upon the ruling and the analysis therein, distributions by EPR to a
shareholder that is a tax-exempt entity should not constitute UBTI, provided the
tax exempt entity has not financed the acquisition of its shares with
"acquisition indebtedness" within the meaning of the Code, and that the shares
are not otherwise used in an unrelated trade or business of the tax-exempt
entity. In addition, REITs generally treat the beneficiaries of qualified
pension trusts as the beneficial owners of REIT shares owned by such pension
trusts for purposes of determining if more than 50% of the REIT's shares are
owned by five or fewer individuals. However, if a pension trust owns more than
10% of the REIT's shares, it can be subject to UBTI on all or a portion of REIT
dividends made to it, if the REIT is treated as a "pension-held REIT." A
pension-held REIT is any REIT if more than 25% of its shares are owned by one
pension trust, or one or more pension trusts each owns 10% of such shares, and
in the aggregate, such pension trusts own more than 50% of its shares. EPR does
not expect to be treated as a "pension-held REIT." Consequently, a pension trust
shareholder should not be subject to UBTI on dividends it receives from EPR.
However, because our common shares are publicly traded, no assurance can be
given in this regard.
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TAXATION OF FOREIGN SHAREHOLDERS
The rules governing U.S. federal income taxation of the ownership and
disposition of shares by persons who or are not U.S. Shareholders ("Non-U.S.
Shareholders") are complex and no attempt is made in this Prospectus to provide
more than a summary of these rules. Prospective Non-U.S. Shareholders should
consult with their own tax advisors to determine the impact of federal, state,
local and any foreign income tax laws with regard to an investment in EPR,
including any reporting requirements.
Distributions that are not attributable to gain from sales or exchanges by
EPR of "United States real property interests" ("USRPIs"), as defined in the
Code, and not designated by EPR as capital gain dividends will be treated as
dividends of ordinary income to the extent they are made out of current or
accumulated earnings and profits of EPR. Unless such distributions are
effectively connected with the Non-U.S. Shareholder's conduct of a U.S. trade or
business (or, if an income tax treaty applies, are attributable to a U.S.
permanent establishment of the Non-U.S. Shareholder), the gross amount of the
distributions will ordinarily be subject to U.S. withholding tax at a 30% or
lower treaty rate, if applicable. In general, Non-U.S. Shareholders will not be
considered engaged in a U.S. trade or business (or, in the case of an income tax
treaty, as having a U.S. permanent establishment) solely by reason of their
ownership of shares. If income on shares is treated as effectively connected
with the Non-U.S. Shareholder's conduct of a U.S. trade or business (or, if an
income tax treaty applies, is attributable to a U.S. permanent establishment of
the Non-U.S. Shareholder), the Non-U.S. Shareholder generally will be subject to
a tax at graduated rates, in the same manner as U.S. Shareholders are taxed with
respect to such distributions (and may also be subject to the 30% branch profits
tax in the case of a shareholder that is a foreign corporation). EPR expects to
withhold U.S. income tax at the rate of 30% on the gross amount of any
distributions of ordinary income made to a Non-U.S. Shareholder unless (i) a
lower treaty rate applies and proper certification is provided, or (ii) the
Non-U.S. Shareholder files an IRS Form W-8 ECI with EPR claiming that the
distribution is effectively connected with the Non-U.S. Shareholder's conduct of
a U.S. trade or business (or, if an income tax treaty applies, is attributable
to a U.S. permanent establishment of the Non-U.S. Shareholder).
Pursuant to Treasury Regulations, dividends paid to an address in a country
outside the United States are generally presumed to be paid to a resident of
that country for purposes of ascertaining the withholding requirement discussed
above and the applicability of a tax treaty rate. Under certain income tax
treaties, lower withholding rates generally applicable to dividends do not apply
to dividends from a REIT. Under recently promulgated Temporary Treasury
Regulations, certain Non-U.S. Shareholders who seek to claim the benefit of an
applicable treaty rate will be required to satisfy certain residency
requirements. In addition, certain certification and disclosure requirements
must be satisfied under the effectively connected income and permanent
establishment exemptions discussed in the preceding paragraph.
Unless the shares constitute a USRPI, distributions in excess of current
and accumulated earnings and profits of EPR will not be taxable to a shareholder
to the extent such distributions do not exceed the adjusted basis of the
shareholder's shares but rather will reduce the adjusted basis of the shares. To
the extent such distributions exceed the adjusted basis of a Non-U.S.
Shareholder's shares, such distributions will give rise to tax liability if the
Non-U.S. Shareholder would otherwise be subject to tax on any gain from the sale
or disposition of his shares, as described below. If it cannot be determined at
the time a distribution is made whether or not the distribution will be in
excess of current and accumulated earnings and profits, the distributions will
be subject to withholding at the same rate as dividends. If, however, shares are
treated as a USRPI, then unless otherwise treated as a dividend for withholding
tax purposes as described below, any distributions in excess of current or
accumulated earnings and profits will generally be subject to 10% withholding
and, to the extent such distributions also exceed the adjusted basis of a
Non-U.S. Shareholder's shares, they will also give rise to gain from the sale or
exchange of the shares, the tax treatment of which is described below.
Distributions that are designated by EPR at the time of distribution as
capital gain dividends (other than those arising from the disposition of a
USRPI) generally will not be subject to taxation, unless (i) investment in the
shares is effectively connected with the Non-U.S. Shareholder's U.S. trade or
business (or, if an income tax treaty applies, it is attributable to a U.S.
permanent establishment of the Non-U.S. Shareholder), in which
22
case the Non-U.S. Shareholder will be subject to the same treatment as U.S.
Shareholders with respect to such gain (except that a shareholder that is a
foreign corporation may also be subject to the 30% branch profits tax), or (ii)
the Non-U.S. Shareholder is a non-resident alien individual whose is present in
the U.S. for 183 days or more during the taxable year and either has a "tax
home" in the U.S. or sold his shares under circumstances in which the sale was
attributable to a U.S. office, in which case the non-resident alien individual
will be subject to a 30% tax on the individual's capital gains.
For each year in which EPR qualifies as a REIT, distributions that are
attributable to gain from sales or exchanges by EPR of USRPIs ("USRPI Capital
Gains"), such as properties beneficially owned by EPR, will be taxed to a
Non-U.S. Shareholder under the provisions of the Foreign Investment in Real
Property Tax Act of 1980 ("FIRPTA"). Under FIRPTA, such distributions are taxed
to a Non-U.S. Shareholder as gain effectively connected with a U.S. trade or
business regardless or whether such dividends are designated as capital gain
dividends. Non-U.S. Shareholders would thus be taxed at the normal capital gain
rates applicable to U.S. Shareholders (subject to applicable alternative minimum
tax and a special alternative minimum tax in the case of nonresident alien
individuals) on such distributions. Also, distributions of USRPI Capital Gains
may be subject to a 30% branch profits tax in the hands of a foreign corporate
shareholder not entitled to treaty exemption or rate reduction. EPR is required
by applicable Treasury Regulations to withhold a portion of any distribution
consisting of USRPI Capital Gains. This amount may be creditable against the
Non-U.S. Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of shares will
generally not be taxed under FIRPTA if the shares do not constitute a USRPI.
Shares will not be considered a USRPI if EPR is a "domestically controlled
REIT," or if the shares are part of a class that is regularly traded on an
established securities market and the holder owned less than 5% of the class
sold during a specified testing period. A "domestically controlled REIT" is
defined generally as a real estate investment trust in which at all times during
a specified testing period less than 50% in value of the shares was held
directly or indirectly by foreign persons. EPR believes that it is a
"domestically controlled REIT," and therefore the sale of shares will not be
subject to taxation under FIRPTA. If the gain on the sale of shares were to be
subject to taxation under FIRPTA, the Non-U.S. Shareholder would be subject to
the same treatment as U.S. Shareholders with respect to such gain (subject to
applicable alternative minimum tax and a special alternative minimum tax in the
case of nonresident alien individuals), and the purchaser of the shares may be
required to withhold 10% of the purchase price and remit such amount to the IRS.
However, since our common shares are publicly traded, no assurance can be given
in this regard.
Gain not subject to FIRPTA will be taxable to a Non-U.S. Shareholder if (i)
investment in the shares is effectively connected with a U.S. trade or business
of the Non-U.S. Shareholder (or, if an income tax treaty applies, is
attributable to a U.S. permanent establishment of the Non-U.S. Shareholder), in
which case the Non-U.S. Shareholder will be subject to the same treatment as
U.S. Shareholders with respect to such gain, or (ii) the Non-U.S. Shareholder is
a nonresident alien individual who was present in the U.S. for 183 days or more
during the taxable year and has a "tax home" in the U.S., in which case the
nonresident alien individual will be subject to a 30% tax on the individual's
capital gains. If the gain on the sale of shares were to be subject to taxation
under FIRPTA, the Non-U.S. Shareholder would be subject to the same treatment as
U.S. Shareholders with respect to such gain (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals).
If the proceeds of a disposition of shares are paid by or through a U.S.
office of a broker, the payment is subject to information reporting and backup
withholding unless the disposing Non-U.S. Shareholder certifies as to his name,
address and non-U.S. status or otherwise establishes an exemption. Generally,
U.S. information reporting and backup withholding will not apply to a payment of
disposition proceeds if the payment is made outside the U.S. through a non-U.S.
office of a non-U.S. broker. U.S. information reporting requirements (but not
backup withholding) will apply, however, to a payment of disposition proceeds
outside the U.S. if (i) the payment is made through an office outside the U.S.
of a broker that is either (a) a U.S. person, (b) a foreign person that derives
50% or more of its gross income for certain periods from the conduct of a trade
or business in the U.S. or (c) a "controlled foreign corporation" for U.S.
federal income tax purposes, and (ii) the broker fails to obtain documentary
evidence that the shareholder is a Non-U.S.
23
Shareholder and that certain conditions are met or that the Non-U.S. Shareholder
otherwise is entitled to an exemption.
Final regulations dealing with withholding tax on income paid to foreign
persons and related matters (the "New Withholding Regulations") were recently
promulgated. In general, the New Withholding Regulations do not significantly
alter the substantive withholding and information reporting requirements
described above, but unify current certification procedures and forms and
clarify reliance standards. For example, the New Withholding Regulations adopt a
certification rule under which a Non-U.S. Shareholder who wishes to claim the
benefit of an applicable treaty rate with respect to dividends received from a
U.S. corporation will be required to satisfy certain certification and other
requirements. In addition, the New Withholding Regulations require a corporation
that is a REIT to treat as a dividend the portion of a distribution that is not
designated as a capital gain dividend or return of basis and apply the 30%
withholding tax (subject to any applicable deduction or exemption) to such
portion, and to apply the FIRPTA withholding rules (discussed above) with
respect to the portion of the distribution designated by the REIT as capital
gain dividend. The New Withholding Regulations are generally effective for
payments made after December 31, 1999, subject to certain transition rules.
EXCEPT AS PROVIDED IN THIS PARAGRAPH, THE DISCUSSION SET FORTH ABOVE IN
"TAXATION OF FOREIGN SHAREHOLDERS" DOES NOT TAKE THE NEW WITHHOLDING
REGULATIONS INTO ACCOUNT. PROSPECTIVE NON-U.S. SHAREHOLDERS ARE STRONGLY URGED
TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE NEW WITHHOLDING
REGULATIONS.
POSSIBLE LEGISLATIVE OR OTHER ACTIONS AFFECTING TAX CONSEQUENCES
Prospective investors should recognize that the present federal income tax
treatment of an investment in EPR may be modified by legislative, judicial or
administrative action at any time, and that any such action may affect
investments and commitments previously made. The rules dealing with federal
income taxation are constantly under review by persons involved in the
legislative process and by the IRS and the U.S. Treasury Department, resulting
in revisions of regulations and revised interpretations of established concepts
as well as statutory changes. Revisions in federal tax laws and interpretations
thereof could adversely affect the tax consequences of an investment in EPR.
STATE TAX CONSEQUENCES AND WITHHOLDING
EPR and its shareholders may be subject to state or local taxation in
various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of EPR and its
shareholders may not conform to the federal income tax consequences discussed
above. Several states in which EPR may own properties treat REITs as ordinary
corporations. EPR does not believe, however, that shareholders will be required
to file state tax returns, other than in their respective states of residence,
as a result of the ownership of shares. However, prospective shareholders should
consult their own tax advisors regarding the effect of state and local tax laws
on an investment in EPR.
YOU ARE ADVISED TO CONSULT WITH YOUR OWN TAX ADVISOR REGARDING THE SPECIFIC
TAX CONSEQUENCES TO YOU OF THE OWNERSHIP AND SALE OF SHARES IN AN ENTITY
ELECTING TO BE TAXED AS A REAL ESTATE INVESTMENT TRUST, INCLUDING THE FEDERAL,
STATE, LOCAL, FOREIGN, AND OTHER TAX CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP,
SALE, AND ELECTION AND OF POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
DESCRIPTION OF SECURITIES
This summary of our securities is not meant to be complete and is qualified
in its entirety by reference to our Amended and Restated Declaration of Trust
and Amended Bylaws, copies of which have been filed with the SEC as Exhibits 4.2
and 4.4 to the Registration Statement and are incorporated by reference herein.
24
GENERAL
Our Declaration of Trust authorizes us to issue up to 50,000,000 common
shares and up to 5,000,000 preferred shares. As permitted by Maryland law, our
Declaration of Trust permits the Board of Trustees, without shareholder
approval, to 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 we have authority to issue. Under Maryland law, a shareholder is not
personally liable for the obligations of a REIT solely as a result of his or her
status as a shareholder.
As of May 1, 2002, a total of 17,109,099 common shares were outstanding and
no preferred shares were outstanding.
The transfer agent and registrar for our shares is UMB Bank, n.a.
COMMON SHARES
Holders of our common shares have the following rights:
- Dividends -- Common shareholders have the right to receive dividends when
and as declared by the Board of Trustees
- Voting Rights -- Common shareholders have the right to vote their shares.
Each common share has one vote on all matters submitted for shareholder
approval, including the election of trustees. We do not have cumulative
voting in the election of trustees, which means the holders of a majority
of our outstanding common shares can elect all of the trustees nominated
for election and the holders of the remaining common shares will not be
able to elect any trustees
Liquidation Rights -- If we liquidate, holders of common shares are
entitled to receive all remaining assets available for distribution to common
shareholders after satisfaction of our liabilities and the preferential rights
of any preferred shares which may be issued in the future.
Other Features -- Our outstanding common shares are fully paid and
nonassessable. Common shareholders do not have any preemptive, conversion or
redemption rights.
PREFERRED SHARES
The relative dividend, voting, liquidation, conversion, redemption and
other rights and preferences on any preferred shares we may offer shall be
determined by the Board of Trustees. The Prospectus Supplement applicable to any
preferred shares will describe such things as:
- the serial designation and the number of shares constituting that series
- the dividend rates or the amount of dividends to be paid on the shares of
that series, whether dividends will be cumulative and, if so, from which
date or dates, the payment and record date or dates for dividends, and
the participating and other rights, if any, with respect to dividends
- the voting powers, full or limited, if any, of the shares of that series
- whether the shares of that series will be redeemable and, if so, the
price or prices at which, and the terms and conditions on which, the
shares may be redeemed
- the amount or amounts payable upon the shares of that series and any
preferences applicable to the shares upon a voluntary or involuntary
liquidation, dissolution or winding up of the Company
- whether the shares of that series will be entitled to the benefit of a
sinking or retirement fund to be applied to the purchase or redemption of
the shares, and if so entitled, the amount of that fund and the manner of
its application, including the price or prices at which the shares may be
redeemed or purchased through the application of the fund
- whether the shares of that series will be convertible into, or
exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of securities of EPR
and, if so
25
convertible or exchangeable, the conversion price or prices, the rate or
rates of exchange, and the adjustments thereof, if any, at which the
conversion or exchange may be made, and any other terms and conditions of
the conversion or exchange
- the price or other consideration for which the shares of that series will
be issued
- whether the shares of that series which are redeemed or converted will
have the status of authorized but unissued undesignated preferred shares
(or series thereof) and whether the shares may be reissued as shares of
the same or any other class or series of shares
- such other powers, preferences, rights, qualifications, limitations and
restrictions thereof as the Board of Trustees may deem advisable
OWNERSHIP LIMIT
Our Declaration of Trust restricts the number of shares which may be owned
by shareholders. Generally, for EPR to qualify as a REIT under the Code, not
more than 50% in value of our outstanding shares may be owned, directly or
indirectly, by five or fewer individuals (defined in the Code to include certain
entities and constructive ownership among specified family members) at any time
during the last half of a taxable year. The shares must also be beneficially
owned by 100 or more persons during at least 335 days of a taxable year. In
order to maintain EPR's qualification as a REIT, the Declaration of Trust
contains restrictions on the acquisition of shares intended to ensure compliance
with these requirements.
Our Ownership Limit may also act to deter an unfriendly takeover of the
Company.
Our Declaration of Trust generally provides that any person (not just
individuals) holding more than 9.8% of our outstanding shares (the "Ownership
Limit") may be subject to forfeiture of the shares (including common shares and
preferred shares) owned in excess of the Ownership Limit ("Excess Shares"). The
Excess Shares may be transferred to a trust for the benefit of one or more
charitable beneficiaries. The trustee of that trust would have the right to vote
the voting Excess Shares, and dividends on the Excess Shares would be payable to
the trustee for the benefit of the charitable beneficiaries. Holders of Excess
Shares would be entitled to compensation for their Excess Shares, but that
compensation may be less than the price they paid for the Excess Shares. Persons
who hold Excess Shares or who intend to acquire Excess Shares must provide
written notice to EPR.
WARRANTS
The terms of any warrants we may offer will be established by the Board of
Trustees and will be described in a Prospectus Supplement, including such
matters as:
- the title of the warrants
- the offering price for the warrants
- the aggregate number of the warrants
- the designation and terms of the securities purchasable upon exercise of
the warrants
- if applicable, the designation and terms of the securities that the
warrants are issued with and the number of warrants issued with each
security
- if applicable, the date after which the warrants and any securities
issued with them will be separately transferable
- the number or amount of securities that may be purchased upon exercise of
a warrant and the price at which the securities may be purchased upon
exercise
- the dates on which the right to exercise the warrants will commence and
expire
- if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time
26
- whether the warrants represented by the warrant certificates or
securities that may be issued upon exercise of the warrants will be
issued in registered or bearer form
- information relating to book-entry procedures
- anti-dilution provisions of the warrants, if any
- redemption, repurchase or analogous provisions, if any, applicable to the
warrants
- any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants
DEBT SECURITIES
The terms of any debt securities we may offer will be established by the
Board of Trustees and will be described in a Prospectus Supplement, including
such matters as:
- the title of the debt securities
- the principal amount of the debt securities being offered and any limit
upon the aggregate principal amount
- the date or dates on which the principal will be payable
- the price or prices at which the debt securities will be issued
- the fixed or variable rate or rates of the debt securities, or manner of
calculation, if any, at which the debt securities of the series will bear
interest, the date or dates from which any such interest will accrue and
on which such interest will be payable, and, with respect to securities
of the series in registered form, the record date for the interest
payable on any interest payment date
- the date or dates on which, and the place or places where, the principal
of the debt securities will be payable
- any redemption, repurchase, sinking fund or analogous provisions
- if other than the principal amount thereof, the portion of the principal
amount that will be payable upon declaration of acceleration of the
maturity thereof
- whether we will issue debt securities in registered or bearer form, or
both
- the terms upon which a holder may exchange bearer securities for
securities in registered form and vice versa
- whether we will issue debt securities in the form of one or more "global
securities" through the book-entry system of The Depository Trust
Company, New York, New York
- whether and under what circumstances we will pay additional amounts on
the debt securities held by a person who is not a U.S. person in respect
of taxes or similar charges withheld or deducted and, if so, whether we
will have the option to redeem those securities rather than pay those
additional amounts
- the denominations of the debt securities, if other than $1,000 or an
integral multiple of $1,000
- whether the debt securities will be convertible into or exchangeable for
any other securities and the terms and conditions upon which a conversion
or exchange may occur, including the initial conversion or exchange price
or rate, the conversion or exchange period and any other additional
provisions
27
PLAN OF DISTRIBUTION
We may sell common shares, preferred shares, warrants and debt securities:
- through underwriters or dealers
- through agents
- directly to one or more purchasers
- directly to shareholders
We may effect the distribution of common shares, preferred shares, warrants
and debt securities from time to time in one or more transactions either:
- at a fixed price or prices which may be changed
- at market prices prevailing at the time of sale
- at prices relating to those market prices
- at negotiated prices
For each offering of common shares, preferred shares, warrants or debt
securities, the Prospectus Supplement will describe the plan of distribution.
If we use underwriters in the sale, they will buy the securities for their
own account. The underwriters may then resell the securities in one or more
transactions at a fixed public offering price, at any market price in effect at
the time of sale or at a discount from any such market price. The obligations of
the underwriters to purchase the securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the securities
offered if they purchase any securities. Any public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed
from time to time.
If we use dealers in the sale, we will sell securities to those dealers as
principals. The dealers may then resell the securities to the public at any
market price or other prices to be determined by the dealers at the time of
resale. If we use agents in the sale, they will use their reasonable best
efforts to solicit purchasers for the period of their appointment. If we sell
directly, no underwriters or agents would be involved. We are not making an
offer of securities in any state that does not permit such an offer.
Underwriters, dealers and agents that participate in the distribution of
securities may be deemed to be underwriters as defined in the Securities Act.
Any discounts, commissions or profit they receive when they resell the
securities may be treated as underwriting discounts and commissions under the
Securities Act. We may have agreements with underwriters, dealers and agents to
indemnify them against certain civil liabilities, including certain liabilities
under the Securities Act, or to contribute to payments they may be required to
make.
We may authorize underwriters, dealers or agents to solicit offers from
institutions in which the institution contractually agrees to purchase the
securities from us on a future date at a specified price. This type of agreement
may be made only with institutions that we specifically approve. These
institutions could include banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The underwriters, dealers
or agents will not be responsible for the validity or performance of these
agreements.
To facilitate an offering of the securities, certain persons participating
in the offering may engage in transactions that stabilize or maintain the price
of the securities. This may include over-allotments or short sales of the
securities, which involve the sale by persons participating in the offering of
more securities than EPR has sold to them. In those circumstances, these persons
would cover the over-allotments or short positions by purchasing securities in
the open market or by exercising an over-allotment option which may be granted
to them by EPR. In addition, these persons may stabilize or maintain the price
of the securities by bidding for or purchasing securities in the open market or
by imposing penalty bids, under which selling concessions allowed to dealers
participating in the offering may be reclaimed if the securities they sell are
28
repurchased in stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the securities at a level above
that which might otherwise prevail in the open market. These transactions, if
commenced, may be discontinued at any time.
Underwriters, dealers or agents may engage in transactions with us and may
perform services for us in the ordinary course of business.
LEGAL MATTERS
Kutak Rock LLP, Kansas City, Missouri, has issued an opinion about the
legality of the securities and will issue an opinion regarding EPR's
qualification and taxation as a REIT under the Code. In addition, the
description of EPR's taxation and qualification as a REIT under the caption
"Federal Income Tax Consequences" will be based upon the opinion of Kutak Rock
LLP. Underwriters, dealers or agents who we identify in a Prospectus Supplement
may have their counsel give an opinion on certain legal matters relating to the
securities or the offering.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 2001, as set forth in their report which is
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in auditing and accounting.
On April 5, 2002, we engaged KPMG LLP to audit our financial statements for
the year ending December 31, 2002.
29
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WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE YOU
ANY INFORMATION OR REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS
SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS. YOU MUST NOT RELY ON ANY
UNAUTHORIZED INFORMATION. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS IS NOT AN OFFER TO SELL OR BUY ANY SECURITIES IN ANY JURISDICTION
WHERE IT IS UNLAWFUL. THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT IS CURRENT
AS OF MAY 23, 2002 AND THE INFORMATION IN THE ACCOMPANYING PROSPECTUS IS CURRENT
AS OF MAY 17, 2002.
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TABLE OF CONTENTS
PAGE
----
Summary......................................... S-1
Forward-Looking Statements...................... S-1
About EPR....................................... S-1
Properties...................................... S-3
Recent Developments............................. S-5
The Offering.................................... S-6
Selected Financial Data......................... S-8
Risk Factors.................................... S-9
Use of Proceeds................................. S-9
Capitalization.................................. S-10
Ratio of Earnings to Fixed Charges and Preferred
Share Dividends............................... S-11
Additional Federal Income Tax Consequences...... S-11
Description of Series A Cumulative Redeemable
Preferred Shares.............................. S-17
Underwriting.................................... S-23
Legal Matters................................... S-25
PROSPECTUS
About this Prospectus........................... 1
Where You Can Find More Information............. 1
Incorporation of Certain Information by
Reference..................................... 1
Forward-Looking Statements...................... 2
Risk Factors.................................... 3
About EPR....................................... 9
Properties...................................... 12
Use of Proceeds................................. 14
Ratio of Earnings to Fixed Charges and Preferred
Share Dividends............................... 14
Federal Income Tax Consequences................. 15
Description of Securities....................... 24
Plan of Distribution............................ 28
Legal Matters................................... 29
Experts......................................... 29
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2,000,000 SHARES
ENTERTAINMENT PROPERTIES TRUST
9.50% SERIES A
CUMULATIVE REDEEMABLE
PREFERRED SHARES
(LIQUIDATION PREFERENCE
$25.00 PER SHARE)
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PROSPECTUS
SUPPLEMENT
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BEAR, STEARNS & CO. INC.
PRUDENTIAL SECURITIES
BB&T CAPITAL MARKETS
FAHNESTOCK & CO. INC.
FERRIS BAKER WATTS
INCORPORATED
STIFEL, NICOLAUS & COMPANY
INCORPORATED
MAY 23, 2002
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