EXHIBIT 10.40
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of this 9th day of May, 2003, 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 party to the Credit Agreement
(as hereinafter defined) as of the date hereof (collectively, the "Banks" and
individually a "Bank"). Capitalized terms not otherwise defined herein shall
have the meaning attributed to them in the Credit Agreement, as hereinafter
defined.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks and the Agents have previously entered
into a certain Credit Agreement dated as of March 5, 2002 (the "Credit
Agreement"); and
WHEREAS, in connection with the Credit Agreement, Forest City
Enterprises, Inc. (the "Parent") made and entered into a certain Guaranty of
Payment of Debt in favor of the Banks, dated as of March 5, 2002 (the
"Guaranty"); and
WHEREAS, the Borrower, the Banks and the Agents desire to make certain
amendments to the Credit Agreement to acknowledge and allow for an indenture to
be entered into by the Parent under the terms of which up to $300,000,000 of
Indebtedness may be incurred by the Parent, subject to the terms and conditions
contained herein and in the First Amendment to Guaranty (as defined below); and
WHEREAS, 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 First Amendment to 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 CREDIT AGREEMENT. Article I of
the Credit Agreement shall be amended as follows:
(a) Amendment of Definition of "Indenture". The definition of
"Indenture" contained in Article I of the Credit Agreement shall be amended by
deleting it in its entirety and replacing it with the following:
"Indentures" shall mean, collectively, the indenture
of the Parent to The Bank of New York, as indenture trustee,
dated as of March 16, 1998 and relating to the 1998 Senior
Notes, and the indenture of the Parent to The Bank of New
York, as indenture trustee, dated as of May 19, 2003, and
relating to the 2003 Senior Notes, and "Indenture" shall mean
either of them, as applicable.
(b) Amendment of Definition of "Senior Notes". The definition
of "Senior Notes" contained in Article I of the Credit Agreement shall be
amended by deleting it in its entirety and replacing it with the following:
"Senior Notes" shall mean the 1998 Senior Notes and
the 2003 Senior Notes.
(c) Addition of Definition of "1998 Senior Notes". Article I
of the Credit Agreement shall be amended by adding in its appropriate
alphabetical place, the following definition for "1998 Senior Notes":
"1998 Senior Notes" shall mean the senior notes of
the Parent issued pursuant to the indenture dated as of March
16, 1998, between the Parent and The Bank of New York, as
indenture trustee, in the original aggregate principal amount
of $200,000,000.
(d) Addition of Definition of "2003 Senior Notes". Article I
of the Credit Agreement shall be amended by adding in its appropriate
alphabetical place, the following definition for "2003 Senior Notes":
"2003 Senior Notes" shall mean the senior notes of
the Parent issued pursuant to the indenture dated as of May
19, 2003, between the Parent and The Bank of New York, as
indenture trustee, in the original aggregate principal amount
of up to $300,000,000.
2. AMENDMENT TO SECTION 7.17 OF THE CREDIT AGREEMENT. Section
7.17 of the Credit Agreement shall be amended by adding the following sentence
to the end of the Section:
A portion of the net proceeds of the 2003 Senior Notes shall
be contributed to the Borrower as capital and shall be used by the
Borrower to repay outstanding Debt on the Revolving Loans and for
general working capital purposes, including the financing of ongoing
development, acquisition and construction activities permitted by this
Agreement.
3. AMENDMENT TO SECTION 8.16 OF THE CREDIT AGREEMENT. Section
8.16 of the Credit Agreement shall be amended by deleting it in its entirety
and replacing it with the following:
SECTION 8.16. SENIOR NOTES. The Borrower shall not alter,
amend, change or modify the terms of any of the Senior Notes (a) to
allow the maturity date of any of the Senior Notes to be less than ten
(10) years from the respective date of issue, (b) to provide for
payment of interest under any of the Senior Notes less frequently than
semi-annually, or (c) to modify the redemption provisions contained
therein, including adding additional redemption provisions.
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4. AMENDMENT TO SECTION 10.10 OF THE CREDIT AGREEMENT. Section
10.10 of the Credit Agreement shall be amended by deleting it in its entirety
and replacing it with 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, or in the payment or performance of any
obligation under either of the Indentures or any of the Senior Notes
(after giving effect to any applicable grace periods), or in the
performance of any other agreement, covenant, term or condition in
either of the Indentures or any of the Senior Notes (after giving
effect to any applicable grace periods).
5. 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
Credit Agreement is incorporated herein as if fully rewritten herein at length
and is true, correct and complete as of the date hereof (after giving effect to
any revisions to Schedule 9.22 or Schedule 9.23 that may have been delivered to
the Agents on or before the Amendment Closing Date);
(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 Credit Agreement.
6. CONDITIONS TO EFFECTIVENESS 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 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:
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(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;
(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, the 2003
Senior Notes and the Indenture dated as of May 19, 2003;
(3) Copies of the 2003 Senior Notes and the
Indenture dated as of May 19, 2003, duly executed by each of the
parties thereto, certified as being true, accurate and complete by the
secretary or assistant secretary of the Parent;
(4) A good standing certificate from the
State of Ohio for the Borrower;
(5) A good standing certificate from the
State of Ohio for the Parent;
(6) 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;
(7) 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;
(8) Counterparts of this Amendment, executed
and delivered by the Borrower, the Agent, and the Banks and the
Parent's Acknowledgement of this Amendment;
(9) Certificate from the secretary or the
assistant secretary of the Borrower certifying that no changes,
amendments or other modifications have been made to the Articles of
Incorporation or Code of Regulations of the Borrower since true and
complete copies were delivered to the Agents on or about March 5, 2002;
(10) Certificate from the secretary or the
assistant secretary of the Parent certifying that no changes,
amendments or other modifications have been made to the Articles of
Incorporation or Code of Regulations of the Parent since true and
complete copies were delivered to the Agents on or about March 5, 2002;
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(11) Counterparts of the First Amendment to
Guaranty, executed and delivered by the Parent, the Agents and the
Banks; and
(12) 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 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 First Amendment to
Guaranty, the 2003 Senior Notes and the indenture dated as of May 19, 2003 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 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
Xxxxxxxx Xxxx LLP). The Borrower shall pay an amendment fee to the
Administrative Agent for distribution to the Banks in the amount set forth in
the fee letter from the Agents to the Borrower dated as of May 9, 2003.
(v) REVISED SCHEDULES. If necessary to make the
representations and warranties in Section 5(a) true, correct and complete, the
Borrower shall have delivered to the Agents and the Banks a new Schedule 9.22
and/or Schedule 9.23.
(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) of this Section 6 have
been satisfied or waived in writing by the Agents.
7. 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 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.
8. EFFECT ON OTHER PROVISIONS. Except as expressly amended by this
Amendment, 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 Amendment.
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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.
FOREST CITY RENTAL PROPERTIES
CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxx
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TITLE: Chairman of the Board
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KEYBANK NATIONAL ASSOCIATION,
Individually and as Administrative Agent
BY: /s/ Xxxxxx Xxxxx
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TITLE: Assistant Vice President
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NATIONAL CITY BANK, Individually and
as Syndication Agent
BY: /s/ Xxxxxxx X. XxXxxx
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TITLE: Senior Vice President
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THE HUNTINGTON NATIONAL BANK
BY: /s/ Xxxxxxx Xxxx Xx.
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TITLE: Vice President
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U.S. BANK NATIONAL ASSOCIATION
BY: /s/ Xxxxxxx Xxxxxx
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TITLE: Officer
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(Signature page to First Amendment to Credit Agreement)
COMERICA BANK
BY: /s/ Xxxxxxx Xxxxxxx
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TITLE: Vice President
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FIRST MERIT BANK
BY: /s/ Xxxx X. Xxxxxxx
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TITLE: Senior Vice President
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LASALLE BANK N.A.
BY: /s/ Xxxxxxx Xxxxxxx
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TITLE: First Vice President
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MANUFACTURERS AND TRADERS
TRUST COMPANY
BY: /s/ Xxxxx X. Xxxxx
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TITLE: Vice President
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FIFTH THIRD BANK
BY: /s/ Xxxxx Xxxxxx
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TITLE: Vice President
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(Signature page to First Amendment to Credit Agreement)
FLEET NATIONAL BANK
BY: /s/ Xxxxx Xxxxxxx
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TITLE: Vice President
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CREDIT LYONNAIS, NEW YORK BRANCH
BY: /s/ Xxxx Xxxxx
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TITLE: Vice President
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THE PROVIDENT BANK
BY: /s/ Xxx Xxxxxxx
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TITLE: Vice President
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(Signature page to First Amendment to Credit Agreement)
CONSENT OF GUARANTOR
FOREST CITY ENTERPRISES, INC., an Ohio corporation, Guarantor under
that certain Guaranty of Payment of Debt issued on or about Xxxxx 0, 0000 (xxx
"Xxxxxxxx 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, as amended to the date hereof, 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: May 9, 2003 FOREST CITY ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President and Chief Executive Officer
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