FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is
made and entered into as of this 12th day of September,
1995 by and among FOREST CITY RENTAL PROPERTIES
CORPORATION, an Ohio corporation ("Borrower"), NATIONAL
CITY BANK, THE HUNTINGTON NATIONAL BANK, COMERICA BANK,
FIRST NATIONAL BANK OF OHIO, and SOCIETY NATIONAL BANK
(collectively the "Banks" and individually a "Bank"), and
SOCIETY NATIONAL BANK, as Agent for the Banks (the
"Agent").
W I T N E S S E T H:
WHEREAS, Borrower, the Banks, and the Agent
entered into a certain Credit Agreement dated as of July
25, 1994 (the "Credit Agreement"); and
WHEREAS, Borrower, the Banks, and the Agent
desire to make certain amendments to the Credit Agreement
on the terms and conditions herein set forth;
NOW, THEREFORE, it is mutually agreed as
follows:
1. AMENDMENTS.
(a) Section 3.02(a) of the Credit Agreement
is hereby amended to read as follows:
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 amount of the
Revolving Loan Maximum set forth for such Bank on Exhibit A
hereto on a Pro rata basis.
(b) The original Exhibit A to the Credit
Agreement shall be superseded and replaced by Exhibit A to
this First Amendment to Credit Agreement, attached hereto.
(c) Section 7.19(iv) of the Credit
Agreement is hereby amended to read as follows:
(iv) guarantee(s) by Borrower not permitted
under the provisions of Subsections (i) through (iii),
inclusive, and/or (v) through (ix), inclusive, of this
Section 7.19 of up to an aggregate principal amount of
indebtedness not at any time exceeding an amount equal to
(A) Four Million Five Hundred Thousand Dollars ($4,500,000)
minus (B) all amounts subject to guarantee(s) permitted by
Section 9.12(f) of the Guaranty; provided, that no debt
service guarantees shall be permitted under this Section
7.19(iv) unless, and only so long as, amounts of
indebtedness to which any debt service guarantees apply
together with the amounts of indebtedness guaranteed by any
other guarantees not permitted by the provisions of
Subsections (i) through (iii), inclusive, and/or (v)
through (ix), inclusive, of this Section 7.19, do not at
any time exceed the amount then permitted to be guaranteed
under this Section 7.19 (iv), and that Borrower shall
provide a written report to each of the Banks within sixty
(60) days after the end of each quarter-annual fiscal
period of Borrower identifying each guarantee of Borrower
then outstanding that is not permitted by the provisions of
Subsections (i) through (iii), inclusive, and/or (v)
through (ix), inclusive, of this Section 7.19;
(d) Section 7.19(vii) of the Credit
Agreement is hereby amended to read as follows:
(vii) any guarantee by Borrower of letters
of credit (other than letters issued under Section 3.06 of
this Credit Agreement) issued on or after the first
anniversary of the Closing Date by any banking institution
on behalf of Forest City Residential Development, Inc. or
Parent, or any obligation of Borrower as an applicant under
standby letters of credit so long as (a) the aggregate
amount of all such outstanding guarantees, plus (b) the
aggregate face amount of all such outstanding letters of
credit issued on behalf of Borrower, plus (c) the aggregate
face amount of all such outstanding letters of credit
issued on behalf of or guaranteed by Parent, plus (d) the
aggregate face amount of all letters of credit permitted
under Section 9.12(g) of Parent's Guaranty of Payment of
Debt issued in connection with this Agreement do not exceed
Ten Million Dollars ($10,000,000); provided, that (1)
Borrower shall not be permitted to guarantee any letter of
credit having a face amount in excess of Five Million
Dollars ($5,000,000) and (2) Borrower shall provide a
written report to each of the Banks within sixty (60) days
after the end of each quarter-annual fiscal period of
Borrower identifying each guarantee of Borrower of any
letter of credit then outstanding;
(e) Section 7.20 of the Credit Agreement is
hereby amended to read as follows:
SECTION 7.20. GROSS CASH FLOW. Borrower
will not suffer or permit (a) its net earnings (loss),
excluding the gain on disposition of properties and the
provision for decline in real estate, before deducting the
noncash charges from rental properties for depreciation and
amortization, deferred income taxes and accrued interest on
mortgage notes of a rental property which is not payable
until future years, plus (b) its corporate interest expense
and pass thru debt reimbursement of New York principal
payments (its "Gross Cash Flow") for any year to be less
than the sum of (i) one hundred fifty percent (150%) until
the Termination Date and one hundred twenty-five percent
(125%) after the Termination Date of the aggregate amount
of all payments of principal and interest of the Notes due
in such year, plus (ii) one hundred percent (100%) of the
aggregate amount of principal payments made in such year on
all loans secured by real estate mortgages (other than any
final principal payment on any loan secured by real estate
and the RMS loan).
2. DEFINITIONS. 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.
3. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to the Agent and each of
the Banks that all of the representations and warranties of
the Borrower set forth in Article VIII of the Credit
Agreement are true and correct on and as of the date hereof
and that no Event of Default or Possible Default exists on
such date.
4. NO WAIVER. The execution and delivery
of this First Amendment of Credit Agreement by the Agent
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 of Credit Agreement or as amended
hereby or waive or release any Event of Default or Possible
Default existing at any time.
5. CONDITIONS TO EFFECTIVENESS. The
amendments to the Credit Agreement herein provided for
shall become effective upon the satisfaction of all of the
following conditions:
(a) The Borrower shall have paid to the
Agent for the Pro rata benefit of the Banks a fee of
$50,000 in respect of the increase in the Commitments
herein provided for;
(b) The Parent shall have executed and
delivered to the Agent and the Banks a First Amendment to
Guaranty of Payment of Debt in form and substance
satisfactory to the Agent, the Banks, and their respective
counsel;
(c) New Revolving Loan Notes in the
respective principal amounts of the Revolving Loan Maximum
for each Bank shall have been duly executed and delivered
by the Borrower to each of the Banks; and
(d) The Agent 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 Agent, the Banks, or
their respective counsel to evidence and confirm the due
authorization, execution, and delivery of this First
Amendment to Credit Agreement and the new Revolving Loan
Notes by the Borrower and of the First Amendment to
Guaranty of Payment of Debt by the Parent.
6. CONFIRMATION OF CREDIT AGREEMENT. The
Borrower, the Agent, and the Banks hereby confirm that the
Credit Agreement is in full force and effect on the date
hereof, and that, upon the amendments herein provided
becoming effective, the Credit Agreement will continue in
full force and effect in accordance with its terms, as
hereby amended.
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.
FOREST CITY RENTAL PROPERTIES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Title: Assistant Secretary
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Title: Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Title: Senior Vice President
COMERICA BANK
By: /s/ Xxxx X. Xxxxx, III
Xxxx X. Xxxxx, III
Title: Assistant Vice President
FIRST NATIONAL BANK OF OHIO
By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Title: Vice President
SOCIETY NATIONAL BANK
Individually and as Agent
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
Name Maximum Amount Percentage Revolving Loan Maximum
Society National Bank $52,500,000 37.5 $30,000,000
National City Bank 27,500,000 19.6 15,710,000
The Huntington
National Bank 20,000,000 14.3 11,430,000
Comerica Bank 20,000,000 14.3 11,430,000
First National Bank
of Ohio 20,000,000 14.3 11,430,000
CONSENT OF GUARANTOR
FOREST CITY ENTERPRISES, INC., an Ohio corporation
and Guarantor under that certain Guaranty of Payment of Debt issued
on or about July 25, 1994 to and in favor of Society National Bank,
National City Bank, The Huntington National Bank, Comerica Bank,
and First National Bank of Ohio 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 of 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.
FOREST CITY ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Title: Senior V.P. - CFO & Secretary
