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Exhibit 10.51
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of this 9th day of August, 2000 by and
among FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio corporation (the
"Borrower"), KEYBANK NATIONAL ASSOCIATION, as Administrative Agent (the
"Administrative Agent"), NATIONAL CITY BANK, as Syndication Agent (the
"Syndication Agent" and, together with the Administrative Agent, the "Agents")
and the banks from time to time party hereto (collectively, the "Banks" and
individually a "Bank"). Capitalized terms not otherwise defined herein shall
have the meaning attributed to them in the Amended Credit Agreement, as
hereinafter defined.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks, other than LaSalle Bank N.A. (the
"Original Banks"), and the Agents have previously entered into a certain Amended
and Restated Credit Agreement dated as of June 25, 1999 (the "Amended Credit
Agreement"); and
WHEREAS, in connection with the Amended Credit Agreement, Forest City
Enterprises, Inc. (the "Parent") made and entered into a certain Amended and
Restated Guaranty of Payment of Debt in favor of the Original Banks, dated as of
June 25, 1999 (the "Guaranty"); and
WHEREAS, the Borrower, the Banks and the Agents desire to make certain
amendments to the Amended Credit Agreement to, among other things, (i) increase
the aggregate Revolving Loan Commitment from $200,000,000 to $265,000,000, (ii)
extend the Termination Date from December 10, 2001 to March 31, 2003 and (iii)
add LaSalle Bank N.A. as a Bank for all purposes, all on the terms and
conditions set forth herein; and
WHEREAS, the Banks and the Agents are willing to amend the Amended
Credit Agreement and the Guaranty, on the respective terms and conditions set
forth herein and in the First Amendment to Amended and Restated Guaranty of
Payment of Debt (the "First Amendment to Guaranty") of even date herewith,
respectively, and such terms and conditions are agreeable to the Borrower and to
the Parent.
NOW, THEREFORE, it is mutually agreed as follows:
1. AMENDMENT TO ARTICLE I OF THE AMENDED CREDIT AGREEMENT.
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(a) AMENDMENT OF DEFINITION OF "INDENTURE". Article I of the
Amended Credit Agreement is hereby amended by deleting the blank contained in
the definition of "Indenture" and replacing it with the date March 16, 1998, but
leaving such definition the same in all other respects.
(b) AMENDMENT OF DEFINITION OF "TERMINATION DATE". Article I
of the Amended Credit Agreement is hereby amended by deleting the date of
December 10, 2001 contained in the definition of "Termination Date" and
replacing it with the date of March 31, 2003, but leaving such definition the
same in all other respects.
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2. AMENDMENT TO SECTION 2.02(b) OF THE AMENDED CREDIT AGREEMENT.
Section 2.02(b) of the Amended Credit Agreement shall be amended by deleting it
in its entirety and replacing it with the following:
SECTION 2.02(b). REPAYMENT OF TERM LOANS. The principal of the
Term Loans shall be payable in consecutive quarterly installments, each
in an amount equal to one fifteenth (1/15th) of the principal balance
of the Term Loans outstanding on the Termination Date, provided, that,
the total annual principal payments in each of the first three (3)
years following the Termination Date shall not exceed $26,500,000, such
payments to commence on the first Quarterly Date next following the
date on which the Term Loans were made and continuing until the
earliest of (i) payment in full of the Term Loans, (ii) the sixteenth
(16th) Quarterly Date following the date on which the Term Loans were
made and (iii) March 31, 2007, at which time all remaining principal of
the Term Loans shall be due and payable in full, unless such principal
becomes due and payable earlier pursuant to the provisions of Article
XI. Notwithstanding any other provision of this Amended Credit
Agreement, any regularly scheduled installment of principal paid by the
Borrower on a Quarterly Date pursuant to this Section 2.02(b) that
results in a prepayment of the Term Loans shall not be subject to the
payment of the prepayment premium set forth in Section 5.05 of this
Amended Credit Agreement.
3. AMENDMENT TO SECTION 3.05(a) OF THE AMENDED CREDIT AGREEMENT.
Section 3.05(a) of the Amended Credit Agreement shall be amended by deleting the
parenthetical contained therein and replacing it with the following
parenthetical:
(each such promissory note, as it may be from time to time amended,
restated or otherwise modified, a "Revolving Loan Note" and,
collectively, "Revolving Loan Notes").
4. AMENDMENT TO SECTION 3.06 OF THE AMENDED CREDIT AGREEMENT.
Section 3.06 of the Amended Credit Agreement shall be amended as follows:
a. Section 3.06(a)(iii) of the Amended Credit Agreement shall
be amended by deleting the phrase "two percent (2%)" contained in such
Section 3.06(a)(iii) and replacing it with the phrase "the Indicated
Spread then in effect for Revolving Loans under the LIBOR Rate Option"
but leaving it the same in all other respects.
b. Section 3.06(b) of the Amended Credit Agreement shall be
amended by deleting the second sentence contained in such Section
3.06(b) and replacing it with the following sentence:
The Agent shall notify each Bank of the occurrence and payment
of a Draw no later than 12:00 p.m. on the date of such notice
and, not later than 1:00 p.m. on the date of such notice, each
Bank will make available to the Agent its Pro rata portion of
the Draw deemed to be a Revolving Loan.
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5. AMENDMENT TO SECTION 4.01(d) OF THE AMENDED CREDIT AGREEMENT.
Section 4.01(d) of the Amended Credit Agreement shall be amended by deleting it
in its entirety and replacing it with the following:
SECTION 4.01(d). INDICATED SPREAD. The Indicated Spread is
measured in basis points and shall be determined as follows:
REVOLVING LOANS
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Indicated Spread
(Basis Points)
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Prime Rate Option LIBOR Rate Option
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From and including the Amendment Date
to the Termination Date, on the aggregate 50 212.5
outstanding principal amount of the Loans
that is less than or equal to the difference
of (A) the Aggregate Revolving Loan Commitments
MINUS (B) the outstanding LC Obligations MINUS
(C) $25,0000,000
From and including the Amendment Date 75 285
to the Termination Date, on the aggregate
outstanding principal amount of the Loans
that is greater than the difference of
(A) the Aggregate Revolving Loan Commitments
MINUS (B) the outstanding LC Obligations MINUS
(C) $25,000,000
TERM LOANS
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Indicated Spread
Period (Basis Points)
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Prime Rate Option LIBOR Rate Option
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From and including the Termination
Date until payment in full 75 250
6. AMENDMENT TO SECTION 8.04 OF THE AMENDED CREDIT AGREEMENT.
Section 8.04 of the Amended Credit Agreement shall be amended as follows:
a. The beginning of the sentence up to the first proviso shall
be deleted and replaced with the following:
The Borrower will not and will not permit any Subsidiary to
create, assume or suffer to exist any indebtedness for borrowed money,
any Funded Indebtedness of any kind or any reimbursement obligation or
other similar liabilities with respect to letters of
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credit issued for the Borrower's or any Subsidiary's account (other
than non-recourse letters of credit or surety bonds issued as credit
enhancement); . . .
b. Subsection (a) shall be amended by deleting it in its
entirety and replacing it with the following:
(a) any Loans obtained hereunder or LC Obligations incurred
hereunder.
7. AMENDMENT TO SECTION 8.11 OF THE AMENDED CREDIT AGREEMENT.
Section 8.11 of the Amended Credit Agreement shall be amended by deleting it in
its entirety and replacing it with the following:
SECTION 8.11 NO PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, assign, pledge or otherwise
dispose of or encumber any of its or their partnership interests or
other equity interests in any of its or their Subsidiaries, except as
permitted under Section 8.02, and except that the Borrower and each
Subsidiary shall be permitted to pledge its stock or other ownership
interests in any of its Subsidiaries to secure (a) additional or
mezzanine indebtedness incurred with respect to a project encumbered by
a first mortgage at the time such additional or mezzanine indebtedness
is incurred, so long as such additional or mezzanine indebtedness is
permitted under Section 8.04 of this Agreement, or (b) primary
indebtedness incurred solely with respect to the acquisition of real
property or for construction purposes, provided that (i) with respect
to the indebtedness described in subsection (a) above, the sum of the
then existing indebtedness PLUS such additional or mezzanine
indebtedness does not exceed eighty percent (80%) of the appraised
value of the project at the time such additional or mezzanine
indebtedness is incurred, (ii) with respect to the indebtedness
described in subsection (b) above, such primary indebtedness does not
exceed one hundred percent (100%) of the appraised value of the
acquired property at the time of such financing, (iii) such pledges of
stock or other ownership interests may be made with respect to no more
than fifteen (15) individual properties collectively with the Borrower,
all Subsidiaries and all Restricted Companies (as defined in the
Guaranty), at any one time, exclusive of the properties set forth on
Schedule 9.9A to the Guaranty, and (iv) the aggregate of all such
additional, mezzanine or primary indebtedness for which such a pledge
will be provided by the Borrower or such Subsidiary does not exceed Two
Hundred Million Dollars ($200,000,000) in the aggregate for all pledges
provided by the Borrower, its Subsidiaries and all Restricted Companies
(as defined in the Guaranty), taken together.
Borrower will deliver to the Agents and the Banks a schedule in the
form of Schedule 9.9 to the Guaranty listing all of the properties as
to which a pledge of stock or other ownership interest has been
provided to a lender in accordance with this Section 8.11, within
twenty (20) days of any property being added or deleted from such
schedule.
8. AMENDMENT TO SECTION 8.13(a) OF THE AMENDED CREDIT AGREEMENT.
Section 8.13(a) of the Amended Credit Agreement shall be amended by deleting the
ratio of 1.20:1.00 contained therein and replacing it with the ratio of
1.30:1.00, but leaving it the same in all other respects.
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9. AMENDMENT TO EXHIBIT A TO THE AMENDED CREDIT AGREEMENT.
Exhibit A to the Amended Credit Agreement shall be amended by deleting it in its
entirety and replacing it with the Exhibit A attached to this Amendment.
10. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agents and each of the Banks as follows:
(a) INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Each and
every representation and warranty made by the Borrower in Article IX of the
Amended Credit Agreement is incorporated herein as if fully rewritten herein at
length and is true, correct and complete as of the date hereof;
(b) REQUISITE AUTHORITY. The Borrower has all requisite power
and authority to execute and deliver and to perform its obligations in respect
of this Amendment and each and every other agreement, certificate, or document
required by this Amendment;
(c) DUE AUTHORIZATION; VALIDITY. The Borrower has taken all
necessary action to authorize the execution, delivery, and performance by it of
this Amendment and every other instrument, document, and certificate relating
thereto. This Amendment has been duly executed and delivered by the Borrower and
is the legal, valid, and binding obligation of the Borrower enforceable against
it in accordance with its terms;
(d) NO CONSENT. No consent, approval, or authorization of, or
registration with, any governmental authority or other Person is required in
connection with the execution, delivery and performance of this Amendment and
the transactions contemplated hereby; and
(e) NO DEFAULTS. No event has occurred and no condition exists
which, with the giving of notice or the lapse of time, or both, would constitute
an Event of Default or Possible Default under the Amended Credit Agreement.
11. CONDITIONS TO CLOSING OF AMENDMENT.
(a) CLOSING CONDITIONS. Except as otherwise expressly provided
in this Amendment, prior to or concurrently with the Amendment Closing Date (as
hereinafter defined), and as conditions precedent to the effectiveness of the
amendments to the Amended Credit Agreement provided for herein, the following
actions shall be taken, all in form and substance satisfactory to the Agents and
the Banks and their respective counsel:
(i) LOAN DOCUMENTS AND CORPORATE DOCUMENTS. The Borrower
shall deliver or cause to be delivered to the Agents and the Banks the following
documents, in all cases duly executed, and delivered by the Borrower and/or the
Parent, and/or certified, as the case may be:
(1) Certified copy of the resolutions of the board of
directors of the Borrower evidencing approval of the execution,
delivery and performance of this Amendment and the Amended and Restated
Revolving Loan Notes in the form attached hereto as Exhibit B;
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(2) Certified copy of the resolutions of the board of
directors of the Parent evidencing approval of the execution, delivery
and performance of the First Amendment to Guaranty;
(3) Copy of the Articles of Incorporation of the
Borrower, certified by the Ohio Secretary of State as of a recent date;
(4) Copy of the Articles of Incorporation of the
Parent, certified by the Ohio Secretary of State as of a recent date;
(5) Copy of the Code of Regulations of the Borrower,
certified as true and complete as of the Amendment Closing Date by the
secretary of the Borrower;
(6) Copy of the Code of Regulations of the Parent,
certified as true and complete as of the Amendment Closing Date by the
secretary of the Parent;
(7) A good standing certificate from the State of Ohio
for the Borrower;
(8) A good standing certificate from the State of Ohio
for the Parent;
(9) A certificate of the secretary or assistant
secretary of the Borrower certifying the names of the officers of the
Borrower authorized to sign this Amendment, together with the true
signatures of such officers;
(10) A certificate of the secretary or assistant
secretary of the Parent certifying the names of the officers of the
Parent authorized to sign the First Amendment to Guaranty, together
with the true signatures of such officers;
(11) Counterparts of this Amendment, executed and
delivered by the Borrower, the Agent, and the Banks and the Parent's
Acknowledgement of this Amendment;
(12) Revolving Loan Notes duly executed and delivered
by the Borrower in favor of each Bank;
(13) Counterparts of the First Amendment to Guaranty,
executed and delivered by the Parent, the Agents and the Banks; and
(14) A certificate of the secretary or assistant
secretary of the Borrower and the Parent certifying that as of the date
of this Amendment no Event of Default or Possible Default exists under
the Amended Credit Agreement.
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(ii) OPINION OF COUNSEL FOR PARENT. The Borrower shall
deliver or caused to be delivered to the Agents and the Banks a favorable
opinion of counsel for the Parent as to the due authorization, execution, and
delivery, and legality, validity and enforceability of the First Amendment to
Guaranty and such other matters as the Agent or the Banks may request.
(iii) OPINION OF COUNSEL FOR BORROWER. The Borrower shall
deliver or caused to be delivered to the Agents and the Banks a favorable
opinion of counsel for the Borrower as to the due authorization, execution, and
delivery, and legality, validity and enforceability of this Amendment and the
Revolving Loan Notes and such other matters as the Agent or the Banks may
request.
(iv) PAYMENT OF FEES TO BANKS. On or before the Amendment
Closing Date, the Borrower shall have paid to the Agents and the Banks all
costs, fees and expenses incurred by them through the Amendment Closing Date in
the preparation, negotiation and execution of this Amendment and the First
Amendment to Guaranty (including, without limitation, legal fees and expenses of
▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP). The Borrower shall pay a commitment fee to the
Administrative Agent for distribution to the Banks in an amount equal to
$362,500, of which $200,000 will be distributed to the Original Banks Pro rata
with respect to the Revolving Loan Commitments in effect prior to the
effectiveness of this Amendment and $162,500 will be distributed to all of the
Banks Pro rata on the basis of the increase in the Revolving Loan Commitment of
each Bank.
(b) DEFINITION. The "Amendment Closing Date" shall mean the
date this Amendment is executed and delivered by the Borrower, the Banks and the
Agents and all the conditions set forth in subsection (a) above have been
satisfied or waived in writing by the Agents.
12. NO WAIVER. Except as otherwise expressly provided herein,
the execution and delivery of this Amendment by the Agents and the Banks shall
not constitute a waiver or release of any obligation or liability of the
Borrower under the Amended Credit Agreement as in effect prior to the
effectiveness of this Amendment or as amended hereby or waive or release any
Event of Default or Possible Default existing at any time.
13. EFFECT ON OTHER PROVISIONS. Except as expressly amended by
this Amendment, all provisions of the Amended Credit Agreement continue
unchanged and in full force and effect and are hereby confirmed and ratified.
All provisions of the Credit Agreement shall be applicable to this Amendment.
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IN WITNESS WHEREOF, the parties hereto, each by an officer thereunto
duly authorized, have caused this First Amendment to Amended and Restated Credit
Agreement to be executed and delivered as of the date first above written.
Address: FOREST CITY RENTAL PROPERTIES
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
BY: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: Vice President
Address: KEYBANK NATIONAL ASSOCIATION,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Individually and as Administrative Agent
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
BY: ▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: Assistant Vice President
Address: NATIONAL CITY BANK, Individually and
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as Syndication Agent
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BY: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: Senior Vice President
Address: THE HUNTINGTON NATIONAL BANK
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ BY: ▇.▇. ▇▇▇▇▇▇▇
TITLE: Vice President
Address: COMERICA BANK
Overnight Mail:
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7th Floor TITLE: Vice President
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U.S. Mail:
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(Signatures continued on next page)
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(Signatures continued from previous page)
Address: FIRST MERIT BANK
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ BY: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: Senior Vice President
Address: CREDIT LYONNAIS, NEW YORK BRANCH
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ BY: ▇▇▇▇ ▇▇▇▇▇
TITLE: Vice President
Address: FIRSTAR BANK NATIONAL ASSOCIATION
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▇▇▇▇▇ ▇▇▇ BY: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ TITLE: Vice President
Address: MANUFACTURERS AND TRADERS
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BY: ▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: Assistant Vice President
Address: U.S. BANK NATIONAL ASSOCIATION
U.S. Bank Place (M.S. MPFP-0802)
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ TITLE: Vice President
Address: LASALLE BANK N.A.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ BY: ▇▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: Senior Vice President
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CONSENT OF GUARANTOR
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FOREST CITY ENTERPRISES, INC., an Ohio corporation, Guarantor under
that certain Amended and Restated Guaranty of Payment of Debt issued on or about
June 25, 1999, as amended (the "Guaranty of Payment of Debt") to and in favor of
the Agents and the Banks in respect of, INTER ALIA., the indebtedness of FOREST
CITY RENTAL PROPERTIES CORPORATION under the Amended Credit Agreement referenced
in the foregoing First Amendment to Amended and Restated Credit Agreement,
hereby acknowledges that it consents to the foregoing First Amendment to Amended
and Restated Credit Agreement and confirms and agrees that its Guaranty of
Payment of Debt, as amended to the date hereof, is and shall remain in full
force and effect with respect to the Amended Credit Agreement as in effect prior
to, and from and after, the amendment thereof pursuant to the foregoing First
Amendment to Amended and Restated Credit Agreement.
Dated: August __, 2000 FOREST CITY ENTERPRISES, INC.
BY: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: Senior Vice President
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EXHIBIT A
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Bank Maximum Amount
---- --------------
KeyBank National Association $40,000,000
National City Bank $40,000,000
The Huntington National Bank $35,000,000
First Merit Bank $22,500,000
Comerica Bank $21,250,000
Credit Lyonnais New York Branch $21,250,000
Firstar Bank National Association $21,250,000
Manufacturers and Traders Trust Company $21,250,000
U.S. Bank National Association $21,250,000
LaSalle Bank N.A. $21,250,000
TOTAL $265,000,000
