Exhibit 10.37
EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of this 19th day of January, 2005, 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 respective meanings attributed to them in the Credit
Agreement, as hereinafter defined.
WITNESSETH:
WHEREAS, the Borrower, the Banks and the Agents have previously entered
into a certain Credit Agreement dated as of March 22, 2004 (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 Agents and the Banks, dated as of March 22, 2004 (the
"Guaranty"); and
WHEREAS, the Borrower, the Banks and the Agents desire to make certain
amendments to the Credit Agreement to acknowledge and allow the Parent to incur
additional Indebtedness of up to $150,000,000, 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 of even date herewith (the
"First Amendment to Guaranty"), 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 "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 2003 Senior Notes, the 2004 Senior
Notes and the 2005 Senior Notes.
(b) Addition of Definition of "2005 Senior Notes". Article I of the
Credit Agreement shall be amended by adding in its appropriate alphabetical
place, the following definition for "2005 Senior Notes":
"2005 Senior Notes" shall mean the senior notes of the Parent to
be issued on or about January 25, 2005, pursuant to the Indenture, in
an original aggregate principal amount of up to $150,000,000.
2. 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 (as hereinafter defined)).
(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.
(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.
3. 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 and the 2005 Senior Notes;
(3) Copies of the 2005 Senior Notes 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, dated as of a recent date,
from the State of Ohio for the Borrower;
(5) A good standing certificate, dated as of a recent date,
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 Agents, and the Banks and of the Parent's
Acknowledgement of this Amendment executed and delivered by the Parent;
(9) Copies of the Articles of Incorporation and Code of
Regulations of the Borrower, certified by the secretary or the assistant
secretary of the Borrower as being true and complete as of the Amendment
Closing Date;
(10) Copies of the Articles of Incorporation and Code of
Regulations of the Parent, certified by the secretary or the assistant
secretary of the Parent as being true and complete as of the Amendment
Closing Date;
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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 and after giving effect to the incurrence of the Indebtedness
under the 2005 Senior Notes, no Event of Default or Possible Default exists
or will exist under the Credit Agreement, as amended hereby, or the
Guaranty, as amended by the First Amendment to Guaranty.
(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 the
2005 Senior Notes and such other matters as the Agents 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 Agents 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, the reasonable legal fees and
expenses of Thompson Hine 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 January 19, 2005.
(v) REVISED SCHEDULES. If necessary to make the representations
and warranties contained in Section 2(a) above 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 3 have been
satisfied or waived in writing by the Agents.
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4. REPAYMENT OF REVOLVING LOANS. The Borrower hereby agrees that, not later
than the day (if it is a Cleveland Banking Day or the next immediately
succeeding Cleveland Banking Day if it is not a Cleveland Banking Day) on which
it receives from the Parent a capital contribution from the net proceeds of the
2005 Senior Notes, it shall pay to the Agent, for the account of the Banks, such
amount as may be necessary to pay in full all outstanding principal of and
accrued interest on the Revolving Loans and, if applicable, the prepayment
premium under Section 5.05(b) of the Credit Agreement.
5. 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.
6. 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.
[Remainder of page intentionally left blank.]
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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/ Thomas G. Smith
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TITLE: Thomas G. Smith, Vice President and
Secretary
KEYBANK NATIONAL ASSOCIATION,
Individually and as Administrative Agent
BY: /s/ Donald WS
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TITLE: AVP
NATIONAL CITY BANK, Individually and
as Syndication Agent
BY: /s/ ANTHONY J. DIMARE
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ANTHONY J. DIMARE
TITLE: SENIOR VICE PRESIDENT
THE HUNTINGTON NATIONAL BANK
BY: /s/ Suzanne Hamilton
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TITLE: Suzanne Hamilton, VP
U.S. BANK NATIONAL ASSOCIATION
BY: /s/ Megan McBride
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TITLE: Sr Vice President
COMERICA BANK
BY: /s/ Charles Weddell
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TITLE: Vice President
(Signature page to First Amendment to Credit Agreement)
FIRST MERIT BANK
BY: /s/ John F. Neumann
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TITLE: SENIOR VICE PRESIDENT
LASALLE BANK NATIONAL ASSOCIATION
BY: /s/ Marilyn Maloney
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TITLE: FIRST VICE PRESIDENT
MANUFACTURERS AND TRADERS
TRUST COMPANY
BY: /s/ Kevin B. Quinn
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TITLE: Vice President
FIFTH THIRD BANK
BY: /s/ Roy C. Lanctot
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TITLE: Vice President
FLEET NATIONAL BANK
BY: /s/ JAMES J. MAGALDI
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JAMES J. MAGALDI
TITLE: Vice President
CALYON NEW YORK BRANCH (SUCCESSOR IN
INTEREST TO CREDIT LYONNAIS NEW YORK BRANCH)
BY: /s/ Paul Ragusin
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TITLE: Director
BY: /s/ John Wilkins
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TITLE: Managing Director
THE PROVIDENT BANK
BY: /s/ William Huffman, Jr.
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TITLE: Senior Vice President
(Signature page to First Amendment to Credit Agreement)
BANK OF MONTREAL
BY: /s/ Thomas A. Batterham
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Thomas A. Batterham
TITLE: Managing Director
CHARTER ONE BANK, N.A.
BY: Chet C. Abedloski
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TITLE: Vice President
(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 March 22, 2004, as
amended by that certain First Amendment to Guaranty of Payment of Debt, dated as
of January 19, 2005 (as so 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, 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: January 19, 2005 FOREST CITY ENTERPRISES, INC.
By: /s/ Thomas G. Smith
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Title: Thomas G. Smith, Chief Financial
Officer, Executive Vice President
and Secretary