SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT is made and entered into as of
this 6th day of March, 1998 by and among FOREST CITY RENTAL PROPERTIES
CORPORATION, an Ohio corporation (the "Borrower"), KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent (the "Agent"), NATIONAL CITY BANK, as Syndication Agent
(the "Syndication Agent" and, together with the Agent, the "Agents") and the
banks from time to time party hereto (collectively, the "Banks" and individually
a "Bank"),
W I T N E S S E T H;
WHEREAS, the Borrower, the Banks other than U.S. Bank National Association
(the "Original Banks"), and the Agents have previously entered into a certain
Credit Agreement dated as of December 10, 1997, (the "Original Credit
Agreement") and the Borrower, the Banks and the Agents have also previously
entered into a First Amendment to Credit Agreement dated as of January 20, 1998;
(the "First Amendment"; the Original Credit Agreement as amended by the First
Amendment being referred to herein as the "Credit Agreement");
WHEREAS, in connection with the Original Credit Agreement, Forest City
Enterprises, Inc. (the "Parent") made and entered into a certain Guaranty of
Payment of Debt in favor of the Original Banks, dated as of December 10, 1997,
(the "Original Guaranty") and in connection with the First Amendment to Credit
Agreement, entered into a First Amendment to Guaranty of Payment of Debt among
the Parent, the Banks, and the Agents, dated as of January 20, 1998 (the "First
Amendment to Guaranty"; the Original Guaranty as amended by the First Amendment
to Guaranty being referred to herein as the "Guaranty");
WHEREAS, as set forth in the letter agreement among the Borrower, the
Parent, the Banks, and the Agents, dated February 25, 1998, (the "Letter
Agreement") the Borrower and the Parent have requested that the Banks and the
Agents agree to certain amendments to the Credit Agreement and to the Guaranty,
relating to the Senior Notes (as hereinafter defined) proposed to be issued by
the Parent, which indebtedness is not permitted by the terms of the Guaranty;
WHEREAS, as set forth in the Letter Agreement, the Banks and the Agents are
willing to amend the Credit Agreement and the Guaranty, on the respective terms
and conditions set forth herein and in the Second Amendment to Guaranty of
Payment of Debt (the "Second Amendment to Guaranty") of even date herewith,
respectively, and such terms and conditions are agreeable to the Borrower and to
the Parent; and
WHEREAS, the Borrower, the Banks, and the Agent desire to make certain
further amendments to the Credit Agreement, all on the terms and conditions
herein set forth, which further amendments are acceptable to the Parent.
NOW, THEREFORE, it is mutually agreed as follows:
1. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to
the Agents and the Banks as follows:
(a) SENIOR NOTES. The Parent shall issue the Senior Notes under the terms
of the Indenture; the Final Drafts of the Senior Notes and the Indenture shall
be in compliance with the requirements of this Second Amendment to Credit
Agreement;
(b) USE OF NET PROCEEDS OF SENIOR NOTES TO PREPAY LOANS. The Parent shall
pay to Borrower, and the Borrower shall accept from the Parent, as a
contribution to capital, the entire net proceeds of the Senior Notes; and,
notwithstanding the provisions of Section 2.01(b) of the Credit Agreement or any
other provisions of the Credit Agreement to the contrary, a portion of the funds
so received by the Borrower shall be used immediately to pre-pay the entire
outstanding balance of the Initial Term Loans and the Revolving Loans, in
accordance with Section 5.05 of the Credit Agreement;
(c) USE OF BALANCE OF NET PROCEEDS OF SENIOR NOTES. The balance of the
entire net proceeds of the Senior Notes shall be used by the Borrower for
general corporate purposes of the Borrower, including projects under current
development;
(d) INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Each and every
representation and warranty made by the Borrower in Article IX of the Credit
Agreement is incorporated herein as if fully rewritten herein at length and is
true, correct and complete as of the date hereof;
(e) REQUISITE AUTHORITY. The Borrower has all requisite power and authority
to execute and deliver and to perform its obligations in respect of this Second
Amendment to Credit Agreement and each and every other agreement, certificate,
or document required by this Second Amendment to Credit Agreement;
(f) DUE AUTHORIZATION; VALIDITY. The Borrower has taken all necessary
action to authorize the execution, delivery, and performance by it of this
Second Amendment to Credit Agreement and every other instrument, document, and
certificate relating thereto. This Second Amendment to Credit Agreement has been
duly executed and delivered by the Borrower and when executed and delivered by
the Borrower will be a legal, valid, and binding obligation of the Borrower
enforceable against it in accordance with its terms; and
(g) 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 Second Amendment to Credit
Agreement and the transactions contemplated hereby, except for the registration
of the Senior Notes with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, and any applicable "Blue Sky" laws.
2. CONDITIONS TO CLOSING AND TO EFFECTIVENESS OF SECOND AMENDMENT.
(a) CLOSING CONDITIONS. Except as otherwise expressly provided in this
Second Amendment to Credit Agreement, prior to or concurrently with the Second
Amendment Closing Date (as hereinafter defined), and as conditions precedent to
the effectiveness of the amendments to the 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) CORPORATE AND LOAN DOCUMENTS. The Borrower shall deliver or cause to be
delivered to the Agent 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 copies of the resolutions of the board of directors of the
Borrower evidencing approval of the execution, delivery, and performance of this
Second Amendment to Credit Agreement and the Revolving Loan Notes in the form
attached as Exhibit D (such notes, in the form attached as Exhibit D, are
sometimes referred to herein as the "amended Revolving Loan Notes");
(2) Certified copies of resolutions of the Board of Directors of the Parent
evidencing approval of the execution, delivery, and performance of the Second
Amendment to Guaranty;
(3) Copies of the Articles of Incorporation of the Borrower, certified by
the Ohio Secretary of State as of a recent date;
(4) Copies of the Articles of Incorporation of the Parent, certified by the
Ohio Secretary of State as of a current date;
(5) Code of Regulations of the Borrower, certified as true and complete as
of the Second Amendment Closing Date by the Secretary of the Borrower;
(6) Code of Regulations of the Parent, certified as true and complete as of
the Second Amendment Closing Date by the Secretary of the Parent;
(7) A Borrower good standing certificate;
(8) A Parent good standing certificate;
(9) A certificate of the secretary or assistant secretary of the Borrower
certifying the names of the officers of Borrower authorized to sign this Second
Amendment to Credit Agreement and the amended Revolving Loan Notes, 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 Second
Amendment to Guaranty, together with the true signatures of such officers;
(11) Counterparts of the Second Amendment to Credit Agreement, executed and
delivered by the Borrower, the Agents, and the Banks;
(12) Counterparts of the Second Amendment to Guaranty, executed and
delivered by the Parent, the Agents, and the Banks; and
(13) A certificate of the secretary or assistant secretary of the Borrower
certifying that as of the date of this Second Amendment to Credit Agreement no
Event of Default or Possible Default exists under the Credit Agreement.
(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 Second Amendment to Guaranty and such other
matters as the Agent and 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 the Second Amendment to Credit Agreement and the
amended Revolving Loan Notes and such other matters as the Agent and the Banks
may request.
(iv) PAYMENT OF FEES TO BANKS. On or before the Second Amendment Closing
Date, the Borrower shall have paid to the Agents and the Banks all costs, fees,
and expenses incurred by them through the Second Amendment Closing Date in the
preparation, negotiation, and execution of the Letter Agreement and of this
Second Amendment to Credit Agreement and the Second Amendment to Guaranty
(including, without limitation, legal fees and expenses of Xxxxxxxx Xxxx & Xxxxx
LLP), together with a fee equal to 25 basis points times the $60,000,000
increase in the aggregate Revolving Loan Commitment provided for herein. The
Borrower shall pay such fee to the Agent for distribution to the Banks Pro rata,
based upon the Maximum Amount of the Revolving Loan Commitment of each Bank.
(b) FURTHER CONDITIONS TO EFFECTIVENESS OF SECOND AMENDMENT TO CREDIT
AGREEMENT. Except as provided in Section 7 or Section 12 hereof, or as otherwise
expressly provided in this Second Amendment to Credit Agreement, as further
conditions precedent to the effectiveness of the amendments to the 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) FINAL DRAFTS OF SENIOR NOTES DOCUMENTS. The Borrower shall have
delivered or caused to be delivered to the Agent and the Banks a true and
complete copy of the Final Drafts of the Senior Notes and of the Indenture;
(ii) ISSUANCE OF SENIOR NOTES, ETC. The Guarantor shall have completed the
issuance of the Senior Notes not later than August 28, 1998; the Guarantor
immediately thereafter shall have paid to the Borrower, as a contribution to
capital, the entire net proceeds of the Senior Notes; the Borrower immediately
thereafter shall have paid a portion of the contribution so received to the
Banks, to pre-pay the entire outstanding balance of the Initial Term Loans and
the Revolving Loans, in accordance with the pre-payment provision of the Credit
Agreement;
(iii) CERTIFICATION OF COMPLIANCE. The Agents and the Banks shall have
received a certification by a financial officer of the Borrower, confirming that
all of the requirements set forth above in this Section 2(b) have been met; and
(iv) DELIVERY OF AMENDED REVOLVING LOAN NOTES. The Borrower shall have
executed and delivered the amended Revolving Loan Notes; and
(v) UPDATED CLOSING DOCUMENTS. To the extent required by the Agent, the
Borrower shall deliver or cause to be delivered to the Agent and the Banks
updated forms of the closing documents listed in Section 2(a) of this Second
Amendment to Credit Agreement, all in form and substance satisfactory to the
Agents and the Banks and their respective counsel; and
(vi) PAYMENT OF FEES TO BANKS. The Borrower shall have paid to the Agents
and the Banks all costs, fees, and expenses incurred by them through the Second
Amendment Effective Date in connection with the confirmation of the
effectiveness of this Second Amendment to Credit Agreement and the Second
Amendment to Guaranty (including, without limitation, legal fees and expenses of
Xxxxxxxx Xxxx & Xxxxx LLP).
The date on which the conditions set forth in Section 2(a) and above in this
Section 2(b) have been satisfied is referred to herein as the "Second Amendment
Effective Date". Notwithstanding any other provision of this Second Amendment to
Credit Agreement to the contrary, in the event that the Second Amendment
Effective Date has not occurred by August 28, 1998, then this Second Amendment
to Credit Agreement shall be null and void thereafter, except that Borrower's
obligation to pay the costs, fees, and expenses referred to in Sections 2(a) and
(b) shall survive until satisfied in full. Upon the effectiveness of this Second
Amendment to Credit Agreement, the Banks will be deemed to have approved the
issuance of the Senior Notes by the Company, the taking of actions by the
Company to authorize the issuance of the Senior Notes and/or the Company
entering into an underwriting agreement as to the Senior Notes, and, to the
extent that the taking of any one or more such actions prior to the
effectiveness of this Second Amendment to Credit Agreement constitutes a
Possible Default or an Event of Default under the limitations on indebtedness
contained in the Credit Agreement or the Guaranty, the Banks will be deemed to
have waived such default(s).
3. AMENDMENT TO ARTICLE I OF CREDIT AGREEMENT.
(a) AMENDMENT TO DEFINITION OF "AFFILIATE". Article I of the Credit
Agreement is hereby amended by deleting the definition of "Affiliate" set forth
therein and replacing it with the following:
"Affiliate" of any Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For purposes of this
definition, "control" when used with respect to any Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
(b) ADDITION OF DEFINITION OF "BOARD OF DIRECTORS". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of "Board
of Directors":
"Board of Directors" shall mean either the board of
directors of the Parent or any duly constituted committee thereof.
(c) AMENDMENT TO DEFINITION OF "CHANGE OF OWNERSHIP EVENT". Article I of
the Credit Agreement is hereby amended by deleting the definition of "Change of
Ownership Event" set forth therein and replacing it with the following:
"Change of Ownership Event" shall be deemed to have
occurred at such time as either (a) any Person (other than a Permitted
Holder) or any Persons acting together that would constitute a "group"
(a "Group") for purposes of Section 13(d) of the Exchange Act or any
successor provision thereto (other than Permitted Holders), together
with any Affiliates or Related Persons thereof, shall beneficially own
(within the meaning of Rule 13d-3 under the Exchange Act, or any
successor provision thereto) at least 30% of the aggregate voting power
of all classes of Voting Stock of the Parent; or (b) any Person or
Group (other than Permitted Holders), together with any Affiliates or
Related Persons thereof, shall succeed in having a sufficient number of
its nominees elected to the Board of Directors of the Parent such that
such nominees, when added to any existing director remaining on the
Board of Directors of the Parent after such election who was a nominee
of or is an Affiliate or Related Person of such Person or Group, will
constitute a majority of the Board of Directors of the Parent; or (c)
the Parent shall cease to own at least one hundred percent (100%) on a
fully diluted basis, of the economic and voting interests of the
Borrower
(d) ADDITION OF DEFINITION OF "CAPITAL STOCK". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Capital Stock":
"Capital Stock" of any Person shall mean any and all
shares, interests, participations, or other equivalents (however
designated) of corporate stock or other equity participations or
interests including, without limitation, partnership interests, whether
general or limited, and membership interests, whether of managing or
non-managing members, of such Person.
(e) ADDITION OF DEFINITION OF "COMMON STOCK". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Common Stock":
"Common Stock" of any Person shall mean Capital Stock
of such Person that does not rank prior, as to the payment of dividends
or as to other amounts upon any voluntary or involuntary liquidation,
dissolution, or winding up of such Person, to shares of Capital Stock
of any other class of such Person.
(f) ADDITION OF DEFINITION OF "DISTRIBUTIONS". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Distributions":
"Distributions" shall have the meaning set forth in Section 8.14 hereof.
(g) ADDITION OF DEFINITION OF "DIVIDENDS". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Dividends":
"Dividends" shall mean all dividends (in cash or otherwise) declared and/or
paid, capital returned, and other distributions of any kind made on any share of
Capital Stock outstanding at the time.
(h) ADDITION OF DEFINITION OF "EXCHANGE ACT". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Exchange Act":
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor provision thereto.
(i) ADDITION OF DEFINITION OF "FINAL DRAFTS". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of "Final
Drafts":
"Final Drafts" shall mean the final drafts of the Senior Notes and the
Indenture, as in effect and utilized at the time of issuance of the Senior
Notes, which final drafts shall contain no change of a material nature as
compared to the indenture in the form attached hereto as Exhibit G without the
prior written consent of the Banks, other than as to the insertion of pricing
information in the various blanks, which pricing information may be inserted
without the consent of any Banks; provided, however, that the maturity date of
the Senior Notes shall be at least ten (10) years after the issuance date of the
Senior Notes, the interest payments shall be not less frequently than
semi-annually and there shall be no change in any redemption provisions included
therein, nor shall any additional redemption provisions be added (other than
insertion of the redemption dates and prices, provided, however, that the
lockout periods for optional redemptions, which are specified in the Indenture
to end on March ___, 2003 and on March ___, 2001, shall not be decreased).
(j) AMENDMENT TO DEFINITION OF "GUARANTY". Article I of the Credit
Agreement is thereby amended by deleting the definition of "Guaranty" set forth
therein and replacing it with the following:
"Guaranty" means the Guaranty of Payment of Debt issued by the Parent to
the Agent and the Banks, in substantially the form and substance of Exhibit B
attached hereto, as such Guaranty may be from time to time, amended, restated or
otherwise modified.
(k) ADDITION OF DEFINITION OF "INDENTURE". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Indenture":
"Indenture" shall mean the indenture relating to the
Senior Notes, in the form attached to this Credit Agreement as Exhibit
G; provided, however, that the indenture may be modified to insert
pricing information in the various blanks without the consent of any
Bank; provided, further, however, that the maturity date of the Senior
Notes shall be at least ten (10) years after the issuance date of the
Senior Notes, the interest payments shall be not less
frequently than semi-annually, and there shall be no change in any
redemption provisions included therein, nor shall any additional
redemption provisions be added (other than insertion of the redemption
dates and prices, provided, however, that the lockout periods for
optional redemptions, which are specified in the Indenture to end on
March ___, 2003 and on March ___, 2001, shall not be decreased);
provided, however, that, from and after the issuance of the Senior
Notes, the term "Indenture" shall mean the Final Draft thereof.
(l) ADDITION OF DEFINITION OF "PAYMENT DEFAULT". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Payment Default":
"Payment Default" shall mean any failure by the
Borrower or the Parent to make payment of principal, interest, or any
other charge due, whether at maturity or by acceleration, under the
Credit Agreement or the Guaranty.
(m) ADDITION OF DEFINITION OF "PERMITTED DISTRIBUTIONS". Article I of the
Credit Agreement is hereby amended by adding thereto the following definition of
"Permitted Distributions":
"Permitted Distributions" shall have the meaning set forth in Section 8.14
hereof.
(n) ADDITION OF DEFINITION OF "PERMITTED HOLDER". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Permitted Holder":
"Permitted Holder" shall mean (i) any of Xxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxxx or
any spouse of any of the foregoing, and any trusts for the benefit of any of the
foregoing, (ii) RMS, Limited Partnership and any general partner or limited
partner thereof and any Person (other than a creditor) that upon the dissolution
or winding up of RMS, Limited Partnership receives a distribution of Capital
Stock of the Company, (iii) any group (as defined in Section 13(d) of the
Exchange Act) of two or more Persons or entities that are specified in the
immediately preceding clauses (i) and (ii), and (iv) any successive
recombination of the Persons or groups that are specified in the immediately
preceding clauses (i), (ii), and (iii).
(o) ADDITION OF DEFINITION OF "RELATED PERSON". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Related Person":
"Related Person" of any Person shall mean any other
Person directly or indirectly owning (a) 5% or more of the outstanding
Common Stock of such Person (or, in the case of a Person that is not a
corporation, 5% or more of the equity interest in such Person), or (b)
5% or more of the combined voting power of the Voting Stock of such
Person.
(p) ADDITION OF DEFINITION OF "SECOND AMENDMENT CLOSING DATE". Article I of
the Credit Agreement is hereby amended by adding thereto the following
definition of "Second Amendment Closing Date":
"Second Amendment Closing Date" shall mean the date
upon which the Second Amendment to the Credit Agreement is executed and
delivered by all of the parties thereto.
(q) ADDITION OF DEFINITION OF "SECOND AMENDMENT EFFECTIVE DATE". Article I
of the Credit Agreement is hereby amended by adding thereto the following
definition of "Second Amendment Effective Date":
"Second Amendment Effective Date" shall have the
meaning set forth in Section 2(b) of the Second Amendment to Credit
Agreement.
(r) ADDITION OF DEFINITION OF "SECOND AMENDMENT TO CREDIT AGREEMENT".
Article I of the Credit Agreement is hereby amended by adding thereto the
following definition of "Second Amendment to Credit Agreement":
"Second Amendment to Credit Agreement" shall mean the
document, entitled Second Amendment to Credit Agreement, entered into
among the Borrower, the Banks, and the Agents as of March ___, 1998,
amending the Credit Agreement as in effect prior to the date thereof.
(s) ADDITION OF DEFINITION OF "SENIOR NOTES". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Senior Notes":
"Senior Notes" shall mean the senior notes of the
Parent, in the original principal amount not to exceed $200,000,000, to
be issued under the terms of the Final Draft of the Indenture;
provided, however, that, from and after the issuance of the Senior
Notes, the term "Senior Notes" shall mean the Final Draft thereof.
(t) ADDITION OF DEFINITION OF "VOTING STOCK". Article I of the Credit
Agreement is hereby amended by adding thereto the following definition of
"Voting Stock":
"Voting Stock" of any Person shall mean Capital Stock
of such Person which ordinarily has voting power for the election of
directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities
has such voting power by reason of any contingency.
4. AMENDMENT TO SECTION 2.02(b) OF THE CREDIT AGREEMENT. To reflect the
prepayment in full of the outstanding balance of the Initial Term Loans prior to
or concurrently with the Second Amendment Effective Date, Section 2.02(b) of the
Credit Agreement is hereby amended by deleting therefrom the words "minus the
corresponding quarterly installment due and payable on the Initial Term Loans
pursuant to Section 2.01(b), if any".
5. AMENDMENTS TO SECTION 3.02(a) OF THE CREDIT AGREEMENT.
a. TO REPLACE EXHIBIT A. Exhibit A to the Credit Agreement is hereby
amended by replacing it with Exhibit A hereto, setting forth an amended Maximum
Amount of the Revolving Loan Commitment of each Bank, with the amended aggregate
Revolving Loan Commitments equal to $225,000,000.
b. TO PROVIDE FOR QUARTERLY REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
Section 3.02(a) of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting therefor the following:
SECTION 3.02 REVOLVING LOAN COMMITMENTS. (a) As used
in this Agreement, the "Revolving Loan Commitment" of each Bank at any
time means the several obligations of each Bank to advance, subject to
the terms and conditions set forth herein, up to the Maximum Amount set
forth for such Bank on Exhibit A hereto; provided, however, that, on
each Quarterly Date commencing with April 1, 1998, the aggregate
Revolving Loan Commitment shall be reduced by $2,500,000 and the
Maximum Amount of the Revolving Loan Commitment of each Bank shall be
reduced by such Bank's Pro rata share of the aggregate $2,500,000
reduction. If, and to the extent that, upon giving effect to such
reduction, the outstanding principal balance of the Loans will exceed
the aggregate Revolving Loan Commitment, then, notwithstanding any
other provision of the Credit Agreement to the contrary, the Borrower
also shall, on such Quarterly Date, make a prepayment of principal, in
accordance with the requirements of Section 5.05 of this Credit
Agreement, sufficient to reduce the outstanding principal balance of
the Loans to an amount less than or equal to the reduced aggregate
Revolving Loan Commitment.
6. AMENDMENTS TO SECTION 3.05 OF THE CREDIT AGREEMENT.
(a) Section 3.05(a) of the Credit Agreement shall be amended by adding the
words "Second Amendment" immediately before the words "Closing Date" contained
therein.
Exhibit D to the Credit Agreement is hereby amended by deleting it in its
entirety and substituting therefor a promissory note substantially in the form
of Exhibit D attached hereto and made a part hereof.
(b) Section 3.05(b)(ii) of the Credit Agreement is hereby amended by
deleting the words "the Closing Date" and substituting therefor the words "as
shown on Exhibit D".
(c) Section 3.05(b)(iv) of the Credit Agreement is hereby amended by
deleting the words "January 1, 2001 unless extended in accordance with Section
3.09 hereof" contained therein and substituting therefor the phrase "the
Termination Date".
7. AMENDMENT TO SECTION 4.03(b) OF THE CREDIT AGREEMENT. Section 4.03(b) of
the Credit Agreement is hereby amended by deleting it in its entirety and
substituting therefor the following:
(b) Interest on all Loans subject to the LIBOR Rate
Option shall be payable in arrears on the first day of each calendar
month.
8. AMENDMENT TO SECTION 5.05 OF THE CREDIT AGREEMENT. Section 5.05 of the
Credit Agreement is hereby amended by designating the existing text thereof as
paragraph (a), entitled "Optional Prepayment", and by adding thereto the
following paragraph (b):
(b) MANDATORY PREPAYMENT. Notwithstanding anything to
the contrary in this Credit Agreement, immediately after the net
proceeds of the Senior Notes are contributed by the Parent as capital
to the Borrower, the Borrower shall prepay the entire outstanding
balance due under the Term Loans and the Revolving Loans. Such
prepayment shall be subject to all of the terms and conditions of this
Credit Agreement relating to prepayments, including, without
limitation, the prepayment premium provisions set forth in Section
5.05(a) of this Credit Agreement. Upon such prepayment, notwithstanding
anything to the contrary herein, the Borrower shall no longer be
entitled to, and the Banks shall have no obligation to make or advance,
the Initial Term Loans, and the only Term Loans provided for under the
Credit Agreement shall be Additional Term Loans.
9. ADDITION OF SECTION 7.18 TO THE CREDIT AGREEMENT. Article VII of the
Credit Agreement is hereby amended by adding thereto the following Section 7.18:
SECTION 7.18 USE OF PROCEEDS OF THE SENIOR NOTES. The
net proceeds of the Senior Notes, as the same shall be contributed by
the Parent to the Borrower as capital, shall be used by the Borrower to
prepay the outstanding balance of the Term Loans and the Revolving
Loans and the balance shall be used for general corporate purposes of
the Borrower, including projects under current development.
10. AMENDMENTS TO ARTICLE VIII OF THE CREDIT AGREEMENT.
a. AMENDMENT TO SECTION 8.07. Section 8.07 of the Credit Agreement is
hereby amended by deleting the portion of the first sentence thereof up to and
including the colon and by substituting therefor the following:
The Borrower will not and will not permit any Subsidiary to pledge its
credit or property in any manner for the payment or other performance
of the indebtedness, contract or other obligation of another
(including, without limitation, the indebtedness of the Parent under
the Senior Notes), whether as guarantor (whether of payment or of
collection), surety, co-maker, endorser or by agreeing conditionally or
otherwise to make any purchase, loan or investment in order thereby to
enable another to prevent or correct a default of any kind or
otherwise, except for:
b. ADDITION OF SECTION 8.14. Article VIII of the Credit Agreement is hereby
amended by adding the following Section 8.14 thereto:
Section 8.14(a) RESTRICTIONS ON DISTRIBUTIONS DURING AN EVENT OF DEFAULT
OTHER THAN A PAYMENT DEFAULT. In the event of and during the
continuance of any Event of Default under this Credit Agreement or
under the Guaranty other than a Payment Default, the Borrower shall not
directly or indirectly declare, make, or pay any Dividends in respect
of its Capital Stock, or, notwithstanding any other provision of the
Credit Agreement to the contrary, any loans or advances to the Parent,
(any such Dividends, loans, or advances are referred to hereinafter as
"Distributions") in excess of the sum of the amounts sufficient to pay,
when due, all interest payments in respect of the Senior Notes and the
amounts sufficient to pay, when due, all taxes of the Parent
(collectively, "Permitted Distributions"); provided, however, that any
Permitted Distributions shall be applied by the Parent strictly to the
permitted uses specified above.
Section 8.14(b) RESTRICTIONS ON DISTRIBUTIONS DURING
A PAYMENT DEFAULT. In the event of and during the continuance of any
Payment Default, notwithstanding the provisions of Section 8.14(a) of
this Credit Agreement, the Borrower shall not directly or indirectly
declare or pay any Distributions to the Parent.
11. AMENDMENT TO SECTION 10.10 OF THE CREDIT AGREEMENT. Section 10.10 of
the Credit Agreement is hereby amended by deleting it in its entirety and
substituting therefor the following:
SECTION 10.10. DEFAULT UNDER GUARANTY OR SENIOR
NOTES. If the Parent defaults in the payment or performance of any
obligation in the Guaranty or in the performance of any other
agreement, covenant, term, or condition in the Guaranty, other than a
violation of Section 9.14(a) of the Guaranty, or in the payment or
performance of any obligation under the Senior Notes or the Indenture
(after giving effect to any applicable grace periods), or in the
performance of any other agreement, covenant, term, or condition in the
Senior Notes or the Indenture (after giving effect to any applicable
grace periods).
12. DEFINITIONS; CONSEQUENCES OF DELAY IN SECOND AMENDMENT EFFECTIVE DATE
UNTIL AFTER THE SECOND AMENDMENT CLOSING DATE. Capitalized terms used in this
Second Amendment to Credit Agreement that are defined in the Credit Agreement
shall have the respective meanings ascribed to them in the Credit Agreement,
with the amendments to and additions of capitalized terms set forth in this
Second Amendment to Credit Agreement effective upon the Second Amendment
Effective Date. Notwithstanding the foregoing and the delay otherwise in the
effectiveness of this Second Amendment to Credit Agreement until the
satisfaction of all of the conditions set forth in Section 2(a) and (b), the
amendments to capitalized terms previously included in the Credit Agreement that
are set forth in this Second Amendment to Credit Agreement, and the defined
terms newly added to the Credit Agreement by this Second Amendment to Credit
Agreement, shall be effective from and after the Second Amendment Closing Date
for purposes of the use of such capitalized or defined terms in Sections 1, 2,
12, 13, and 14 hereof. In the event that the Second Amendment Effective Date
does not occur by August 28, 1998, then this Second Amendment to Credit
Agreement shall be null and void for all purposes, other than as to the
obligation of Borrower to pay the fees and expenses referred to in Section 2(a)
and (b), which obligation shall survive until satisfied in full.
13. NO WAIVER. Except as otherwise expressly provided herein, the execution
and delivery of this Second Amendment to Credit Agreement by the Agents and the
Banks
shall not constitute a waiver or release of any obligation or liability of the
Borrower under the Credit Agreement as in effect prior to the effectiveness of
this Second Amendment to Credit Agreement or as amended hereby or waive or
release any Event of Default or Possible Default existing at any time.
14. EFFECT ON OTHER PROVISIONS. Except as expressly amended by this Second
Amendment to Credit Agreement, all provisions of the 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 Second
Amendment to Credit Agreement. .
IN WITNESS WHEREOF, the parties hereto, each by an officer thereunto duly
authorized, have caused this Second Amendment to Credit Agreement to be executed
and delivered as of the date first above written.
Address: FOREST CITY RENTAL PROPERTIES
0000 Xxxxxxxx Xxxxx XXXXXXXXXXX
Xxxxxxxxx, Xxxx 00000
By: Xxxxxx X. Xxxxx
Title: Vice President and Assistant Secretary
Address: KEYBANK NATIONAL ASSOCIATION,
000 Xxxxxx Xxxxxx Individually and as Administrative Agent
Xxxxxxxxx, Xxxx 00000
By: Xxxxxxx X. Xxxxx
Title: Vice President
Address: NATIONAL CITY BANK, Individually and
0000 Xxxx Xxxxx Xxxxxx as Syndication Agent
Xxxxxxxxx, Xxxx 00000
By: Xxxxxxx XxXxxx
Title: Senior Vice President
Address: THE HUNTINGTON NATIONAL BANK
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 By: Xxxxx X. Xxxxx
Title: Senior Vice President
Address: COMERICA BANK
Overnight Mail:
000 Xxxxxxxx Xxxxxx By: Xxxxx X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 Title: Vice President
7th Floor
U.S. Mail:
XX Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
Address: FIRST MERIT BANK
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 By: Xxxx X. Xxxxxxx
Title: Vice President
Address: CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000 By: Xxxx Xxxxx
Title: Vice President
Address: STAR BANK
0000 Xxxxxx Xxxxxx
Xxxxx 000 By: Xxxxx X. Quick
Xxxxxxxxx, Xxxx 00000 Title: Senior Vice President
Address: MANUFACTURERS AND TRADERS
Xxx Xxxxxxxx Xxxxx XXXXX XXXXXXX
Xxxxxxx, Xxx Xxxx 00000-0000
By: Xxxxx X. Xxxxx
Title: Assistant Vice President
Address: U.S. BANK NATIONAL ASSOCIATION
U.S. Bank Place (M.S. MPFP-0802)
000 Xxxxxx Xxxxxx Xxxxx By: Xxxxx X. Xxxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Title: Assistant Vice President
