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Exhibit 4.19
FIRST AMENDMENT
TO
CREDIT AGREEMENT
by and among
FOREST CITY RENTAL PROPERTIES CORPORATION
as Borrower
and
VARIOUS LENDING INSTITUTIONS
as
Banks
and
KEYBANK NATIONAL ASSOCIATION
as
Administrative Agent for the Banks
and
NATIONAL CITY BANK
as
Syndication Agent for the Banks
------------------------
January 20, 1998
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INDEX OF DOCUMENTS
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1. First Amendment to the Credit Agreement
2. First Amendment to Guaranty of Payment of Debt
3. Term Loan Note in favor of U.S. Bank National Association
4. Revolving Loan Note in favor of U.S. Bank National Association
5. Resolutions of Forest City Rental Properties Corporation
certified by the Secretary of Forest City Rental Properties
Corporation.
6. Resolutions of Forest City Enterprises, Inc. certified by the
Secretary of Forest City Enterprises, Inc.
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FIRST AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
This FIRST AMENDMENT TO CREDIT AGREEMENT is made and entered
into as of this 20th day of January, 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 thereto (collectively, the
"Banks" and individually a "Bank").
W I T N E S S E T H;
WHEREAS, Borrower, the Banks, and the Agents have previously
entered into a certain Credit Agreement dated as of December 10, 1997 (the
"Credit Agreement"); and
WHEREAS, the Borrower, the Banks and the Agents desire to make
certain amendments to the Credit Agreement to, among other things, add U.S. Bank
National Association as a Bank for all purposes, on the terms and conditions
herein set forth;
NOW, THEREFORE, it is mutually agreed as follows:
1. AMENDMENT TO ARTICLE I OF THE CREDIT AGREEMENT. Article I of
the Credit Agreement shall be amended by deleting the definition for
"Termination Date" set forth therein and replacing it with the following:
"TERMINATION DATE" means the third anniversary of the Closing
Date, unless extended by the Banks pursuant to Section 3.09 of this
Credit Agreement, in which case the Termination Date shall be the date
of the expiration of any such extension or, if terminated earlier
pursuant to Article XI or Section 8.13(b) of this Credit Agreement, the
Termination Date shall be the date of such earlier termination.
2. AMENDMENT OF SECTION 2.01(a) OF THE CREDIT AGREEMENT. Section
2.01(a) of the Credit Agreement is hereby amended by deleting the table set
forth therein and substituting therefor the following table:
Amount of
Name of Bank Initial Term Loan
------------ -----------------
KeyBank National Association $ 10,666,666.67
National City Bank 10,666,666.67
The Huntington National Bank 8,666,666.67
First Merit Bank 6,000,000.00
Comerica Bank 4,800,000.00
Star Bank 4,800,000.00
Credit Lyonnais 4,800,000.00
Manufacturers and Traders Trust Company 4,800,000.00
U.S. Bank National Association 4,800,000.00
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TOTAL $ 60,000,000.00
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3. AMENDMENT TO SECTION 2.01(b) OF THE CREDIT AGREEMENT. Section
2.01(b) of the Credit Agreement shall be amended by deleting the reference to
Article X contained in the last sentence therein and substituting therefor a
reference to Article XI.
4. AMENDMENT TO SECTION 2.02(b) OF THE CREDIT AGREEMENT. Section
2.02(b) of the Credit Agreement shall be amended by deleting it in its entirety
and substituting therefor the following:
SECTION 2.02(b). REPAYMENT OF ADDITIONAL TERM LOANS. The
principal of the Additional Term Loans shall be payable in sixteen
consecutive quarterly installments, each in an amount equal to
$5,625,000 minus the corresponding quarterly installment due and payable
on the Initial Term Loans pursuant to Section 2.01(b), if any,
commencing on the first Quarterly Date next following the date on which
the Additional Term Loans are made and continuing until the earlier of
the following (a) payment in full of the Additional Term Loans and (b)
the fifteenth (15th) Quarterly Date after the first Quarterly Date
following the date on which the Additional Term Loans were made, at
which time all remaining principal of the Additional 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 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
Additional Term Loans shall not be subject to the payment of the
prepayment premium set forth in Section 5.05 of this Credit Agreement.
5. AMENDMENT TO SECTION 2.05 OF THE CREDIT AGREEMENT. Section
2.05 of the Credit Agreement shall be amended by deleting it in its entirety and
replacing therefor the following:
SECTION 2.05. [RESERVED.]
6. AMENDMENT TO SECTION 3.02(a) OF THE CREDIT AGREEMENT. Section
3.02(a) of the Credit Agreement is hereby amended by deleting the phrase "on a
Pro rata basis" at the end of the sentence contained therein.
7. AMENDMENT TO SECTION 3.07 OF THE CREDIT AGREEMENT. Section
3.07 of the Credit Agreement is hereby amended by deleting the reference to
Article X contained therein and substituting therefor a reference to Article XI.
8. AMENDMENT TO SECTION 4.01(d) OF THE CREDIT AGREEMENT. Section
4.01(d) of the Credit Agreement is hereby amended by adding the word "Initial"
to the heading "Term Loans" at the beginning of the second table set forth
therein.
9. AMENDMENT TO SECTION 4.02 OF THE CREDIT AGREEMENT. Section
4.02 of the Credit Agreement is hereby amended by deleting the last sentence
contained therein and substituting therefor the following sentence:
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If the Borrower fails to timely select any Interest Period, the
Borrower shall be deemed to have elected to convert such Loan to a Loan
subject to the Prime Rate Option, effective as of the expiration date of
such current Interest Period.
10. AMENDMENT TO SECTION 4.04 OF THE CREDIT AGREEMENT. Section
4.04 of the Credit Agreement is hereby amended by adding the phrase "in full"
after the word "payment" in the second sentence contained therein.
11. AMENDMENT TO SECTION 5.04 OF THE CREDIT AGREEMENT. Section
5.04 of the Credit Agreement shall be amended by adding the following sentence
at the end of such Section 5.04:
To the extent a Bank does not receive its Pro rata share of the
amount of principal, interest and other amounts made available by the
Borrower to the Agent for the account of such Bank at the applicable
time set forth above in this Section 5.04, such Bank shall be entitled
to recover from the Agent, interest on all such amounts in respect of
each day from the date such amounts were made available to the Agent by
the Borrower to the date such amounts are distributed to such Bank at a
rate per annum equal to the overnight federal funds effective rate.
12. AMENDMENT TO SECTION 7.10 OF THE CREDIT AGREEMENT. Section
7.10 of the Credit Agreement shall be amended by adding the following at the end
of the paragraph after the word "non-payments":
, which written notice the Administrative Agent will promptly
deliver to each Bank.
13. AMENDMENT TO SECTION 7.13(c) OF THE CREDIT AGREEMENT.
Section 7.13(c) of the Credit Agreement shall be amended by deleting the
reference to Section 8.05(b) contained therein and substituting therefor a
reference to Section 8.07(b).
14. AMENDMENT TO SECTION 7.16 OF THE CREDIT AGREEMENT. Section
7.16 of the Credit Agreement shall be amended by deleting the term "Agents"
contained therein and substituting therefor the term "Banks."
15. AMENDMENT TO SECTION 8.04(b) OF THE CREDIT AGREEMENT.
Section 8.04(b) of the Credit Agreement is hereby amended by adding the word
"related" after the word "other" in the fourth line of such Section 8.04(b).
16. AMENDMENT TO SECTION 8.07(c) OF THE CREDIT AGREEMENT.
Section 8.07(c) of the Credit Agreement shall be amended by deleting it in its
entirety and substituting therefor the following:
(c) [Reserved.]
17. AMENDMENT TO SECTION 8.07(d) OF THE CREDIT AGREEMENT.
Section 8.07(d) of the Credit Agreement shall be amended by deleting the letter
"a" after the word "of" in the second line of such Section 8.07(d).
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18. AMENDMENT TO SECTION 8.07(g) OF THE CREDIT AGREEMENT.
Section 8.07(g) of the Credit Agreement shall be amended by deleting the phrase
"identifying each quarter-annual fiscal period of Borrower" contained in the
twelfth line in such Section 8.07(g).
19. AMENDMENT TO SECTION 8.12 OF THE CREDIT AGREEMENT. Section
8.12 of the Credit Agreement is hereby amended by deleting it in its entirety
and replacing therefor the following:
SECTION 8.12. TRANSACTIONS WITH AFFILIATES. Except for loans
permitted by Section 8.06 of this Credit Agreement, the Borrower will
not and will not permit any of its Subsidiaries to, enter into any
transaction or series of transactions with any Affiliate other than in
the ordinary course of business and on terms and conditions
substantially as favorable as would be obtainable by the Borrower or
such Subsidiary, at the time, in a comparable arm's-length transaction
with a Person other than an Affiliate.
20. AMENDMENT TO SECTION 8.13(b) OF THE CREDIT AGREEMENT.
Section 8.13(b) of the Credit Agreement shall be amended by deleting the
reference to Section 2.03 contained in the third sentence therein and
substituting therefor a reference to Article IV.
21. AMENDMENT TO SECTION 11.01 OF THE CREDIT AGREEMENT. Section
11.01 of the Credit Agreement shall be amended by deleting the parenthetical
contained in the lead-in paragraph in such Section and substituting therefor the
following parenthetical:
(other than (e), (f) or (g) thereof).
22. AMENDMENT TO ARTICLE XI OF THE CREDIT AGREEMENT. Article XI
of the Credit Agreement shall be amended by adding a new Section 11.06 as
follows:
SECTION 11.06. APPLICATION OF PAYMENTS. Notwithstanding any
other provision of this Credit Agreement, upon the occurrence and during
the continuance of an Event of Default, the Borrower waives any right it
may have to direct the application of any and all payments received by
the Agent or the Banks on account of the Debt and the Borrower agrees
that the Agent and each Bank shall have the right, in its sole and
absolute discretion, to apply and re-apply any and all such payments in
such manner as the Agent or such Bank may deem advisable, subject to the
Pro rata sharing of any such payments among the Banks.
23. AMENDMENT TO SECTION 11.02 OF THE CREDIT AGREEMENT. Section
11.02 of the Credit Agreement shall be amended by deleting the lead-in sentence
contained therein and substituting therefor the following lead-in sentence:
If any Event of Default referred to in Section 10.07(e),
10.07(f) or 10.07(g) hereof shall occur,.
24. AMENDMENT TO SECTION 12.01 OF THE CREDIT AGREEMENT. Section
12.01 of the Credit Agreement is hereby amended by deleting the word "herein"
contained in the third sentence in such Section 12.01 and substituting therefor
the phrase "in this Credit Agreement".
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25. AMENDMENT 12.05 OF THE CREDIT AGREEMENT. Section 12.05 of
the Credit Agreement shall be amended by deleting it in its entirety and
substituting therefor the following:
SECTION 12.05. RESIGNATION OR REMOVAL OF THE AGENT; SUCCESSOR
AGENT. The Agent may resign upon 20 days' notice to the Banks or the
Agent may be removed by a unanimous vote of the Required Banks
(excluding the Agent). Upon the resignation or removal of the Agent, the
Required Banks shall appoint from among the Banks a successor Agent for
the Banks subject to prior approval of the Borrower so long as no
Possible Default or Event of Default then exists (such approval not to
be unreasonably withheld or delayed), whereupon such successor agent
shall succeed to the rights, powers and duties of the Agent, and the
term "Agent" shall include such successor agent effective upon its
appointment, and the resigning or removed Agent's rights, powers and
duties as the Agent shall be terminated, without any other or further
act or deed on the part of the former Agent or any of the parties to
this Credit Agreement. After the resignation or removal of the Agent
hereunder, the provisions of this Article XII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent
under this Credit Agreement. In the event no successor agent has been
appointed by the end of such 20 day period in the case of a resignation
or upon the removal of the Agent by the Required Banks (excluding the
Agent), the resignation or removal of the Agent shall become effective
and the Required Banks shall perform the duties of the Agent until a
successor agent is appointed.
26. AMENDMENT TO SECTION 12.07(b)(ii) OF THE CREDIT AGREEMENT.
Section 12.07(b)(ii) of the Credit Agreement is hereby amended by deleting the
term "Rate" contained in the fourth line therein and substituting therefor the
term "Rata" and by adding the following to the end of the sentence:
and, PROVIDED FURTHER, that the Agent shall only be entitled to
such reimbursement from those Banks that were involved in the dispute
with the Agent.
27. AMENDMENT TO SECTION 12.10 OF THE CREDIT AGREEMENT. Section
12.10 of the Credit Agreement is hereby amended by deleting the first sentence
contained therein in its entirety and substituting therefor the following
sentence:
It is expressly understood and agreed that the Agent shall not
be deemed to have knowledge or notice of the occurrence of any Possible
Default or Event of Default hereunder (other than the failure to make
available to the Agent any principal of or interest on the Loans for the
account of the Banks as required under this Credit Agreement and the
Notes), unless the Agent has actually received written notice from a
Bank or the Borrower describing such Possible Default or Event of
Default and stating that such notice is a "notice of default."
28. AMENDMENT TO SECTION 13.08(b)(ii)(B) OF THE CREDIT
AGREEMENT. Section 13.08(b)(ii)(B) of the Credit Agreement shall be amended by
deleting it in its entirety and substituting therefor the following:
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(B) the consent of the Agent (which consent shall not be
unreasonably withheld or delayed) shall be required for any assignment
of a Revolving Loan Commitment to the extent of any letters of credit
are outstanding.
29. AMENDMENT TO EXHIBIT A TO THE CREDIT AGREEMENT. Exhibit A to
the Credit Agreement shall be amended by deleting it in its entirety and
replacing it with the Exhibit A Attached to this First Amendment to Credit
Agreement.
30. DEFINITIONS. Capitalized terms used in this First Amendment
to Credit Agreement that are defined in the Credit Agreement shall have the
respective meanings ascribed to them in the Credit Agreement.
31. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agents and 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 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 First Amendment to Credit Agreement and each and every
other agreement, certificate or document required by this First
Amendment to Credit Agreement;
c. DUE AUTHORIZATION; VALIDITY. The Borrower has taken all
necessary action to authorize the execution, delivery and performance by
it of this First Amendment to Credit Agreement and every other
instrument, document and certificate relating thereto. This First
Amendment to Credit Agreement has been duly executed and delivered and
when executed and delivered will be a 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 First Amendment to Credit Agreement and the transactions
contemplated hereby.
32. NO WAIVER. The execution and delivery of this First
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 First Amendment
to Credit Agreement or as amended hereby or waive or release any Event of
Default or Possible Default existing at any time.
33. CONDITIONS TO EFFECTIVENESS. The amendments to the Credit
Agreement herein provided for shall become effective upon the satisfaction of
all of the following conditions:
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(a) The Parent shall have executed and delivered to the Agents
and the Banks a First Amendment to Guaranty of Payment of Debt in form
and substance satisfactory to the Agents and the Banks;
(b) A Term Note in the principal amount of Four Million Eight
Hundred Thousand Dollars ($4,800,000) shall have been duly executed and
delivered by the Borrower to U.S. Bank National Association;
(c) A Revolving Loan Note in the principal amount of the
Revolving Loan Commitment for U.S. Bank National Association shall have
been duly executed and delivered by the Borrower to U.S. Bank National
Association; and
(d) The Agents and the Banks shall have received such opinions
of counsel to the Borrower and the Parent, certified copies of
resolutions of the Boards of directors of the Borrower and the Parent,
and such other documents as shall be required by the Agents, the Banks
or their respective counsel to evidence and confirm the due
authorization, execution and delivery of this First Amendment to Credit
Agreement, the Term Note and the Revolving Loan Note each in favor of
U.S. Bank National Association by the Borrower and of the First
Amendment to Guaranty of Payment of Debt by the Parent.
34. EXPENSES. The Borrower shall reimburse the Agents and the
Banks for all costs and expenses incurred by them in the preparation,
negotiation and execution of this First Amendment to Credit Agreement including,
without limitation, the legal fees and out-of-pocket expenses of Xxxxxxxx Xxxx &
Xxxxx LLP.
35. EFFECT ON OTHER PROVISIONS. Except as expressly amended by
this First 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
First Amendment to Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto, each by an officer
thereunto duly authorized, have caused this First Amendment to Credit Agreement
to be executed and delivered as of the date first above written.
Address:
1100 Terminal Tower FOREST CITY RENTAL PROPERTIES
Xxxxxxxxx, Xxxx 00000 CORPORATION
BY: /s/ XXXXXX X. XXXXX
---------------------------------------------
TITLE: XXXXXX X. XXXXX, VICE PRESIDENT AND ASSISTANT SECRETARY
-----------------------------------------------------------
Address: KEYBANK NATIONAL ASSOCIATION,
000 Xxxxxx Xxxxxx Individually and as Administrative Agent
Xxxxxxxxx, Xxxx 00000
BY: /s/ KeyBank National Association
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TITLE: Vice President
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Address: NATIONAL CITY BANK, Individually and
0000 Xxxx Xxxxx Xxxxxx as Syndication Agent
Xxxxxxxxx, Xxxx 00000
BY: /s/ National City Bank
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TITLE: Senior Vice President
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ADDRESS: THE HUNTINGTON NATIONAL BANK
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 BY: /s/ Xxxxx X. Xxxxx
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TITLE: Senior Vice President
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Address: COMERICA BANK
Overnight Mail:
000 Xxxxxxxx Xxxxxx BY: /s/ Xxxxx X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ---------------------------------------------
7" Floor TITLE: Xxxxx X. Xxxxxxxx, Vice President
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U.S. Mail:
XX Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
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Address: FIRST MERIT BANK
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 BY: /s/ First Merit Bank
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TITLE: Vice President
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Address: CREDIT LYONNAIS
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 BY: /s/ Xxxxxxx X. Xxxxx, New York Branch
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TITLE: Xxxxxxx X. Xxxxx, Vice President
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Address: STAR BANK
0000 Xxxxxx Xxxxxx
Xxxxx 000 BY: /s/ Star Bank
Xxxxxxxxx, Xxxx 00000 ----------------------------------------
TITLE: Vice President
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Address: MANUFACTURERS AND TRADERS
Xxx Xxxxxxxx Xxxxx XXXXX XXXXXXX
Xxxxxxx, Xxx Xxxx 00000-0000
BY: /s/ Manufacturers and Traders Trust Company
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TITLE:
----------------------------------------
Address: U.S. BANK NATIONAL ASSOCIATION
U.S. Bank Place (M.S. MPFP-0802)
000 Xxxxxx Xxxxxx Xxxxx BY: /s/ U.S. Bank National Association
Xxxxxxxxxxx, Xxxxxxxxx 00000 ----------------------------------------
TITLE: Assistant Vice President
----------------------------------------
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EXHIBIT A
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Bank Maximum Amount
---- --------------
KeyBank National Association $ 29,333,333.33
National City Bank 29,333,333.33
The Huntington National Bank 23,833,333.33
First Merit Bank 16,500,000.00
Comerica Bank 13,200,000.00
Credit Lyonnais 13,200,000.00
Star Bank 13,200,000.00
Manufacturers and Traders Trust
Company 13,200,000.00
U.S. Bank National Association 13,200,000.00
TOTAL $ 165,000,000.00
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CONSENT OF GUARANTOR
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FOREST CITY ENTERPRISES, INC., an Ohio corporation and, as
amended, (the "Guaranty of Payment of Debt") Guarantor under that certain
Guaranty of Payment of Debt issued on or about December 10, 1997, 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 Credit Agreement referenced in the foregoing First
Amendment to Credit Agreement, hereby acknowledges that it consents to the
foregoing First Amendment to Credit Agreement and confirms and agrees that its
Guaranty of Payment of Debt is and shall remain in full force and effect with
respect to the Credit Agreement as in effect prior to, and from and after, the
amendment thereof pursuant to the foregoing First Amendment to Credit Agreement.
Dated: January 20, 1998 FOREST CITY ENTERPRISES, INC.
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BY: /s/ Xxxxxx X. Xxxxx
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TITLE: Xxxxxx X. Xxxxx, Chief Financial Officer,
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Senior Vice President and Secretary
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