EXHIBIT 10.1
SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
This SECOND AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT AND AMENDED AND RESTATED GUARANTY OF
PAYMENT OF DEBT (this “Second Amendment”) is made and
entered into this 30th day of January, 2009, but shall be effective
as of January 30, 2009 (the “Effective Date”), by
and among FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio
corporation (the “Borrower”), FOREST CITY
ENTERPRISES, INC. , an Ohio corporation (the
“Parent”), KEYBANK NATIONAL ASSOCIATION, as
Administrative Agent (the “Agent”), NATIONAL CITY
BANK, as Syndication Agent (the “Syndication Agent”
and, together with the Agent, the “Agents”), BANK OF
AMERICA, N.A. , as Documentation Agent, 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.
W I T N E S S E T
H:
WHEREAS, the Borrower, the Banks and
the Agents have previously entered into that certain Amended and
Restated Credit Agreement, dated as of June 6, 2007 (the
“Original Credit Agreement”), as amended by that
certain First Amendment to Amended and Restated Credit Agreement,
dated as of September 10, 2008 and effective as of
July 31, 2008 (the Original Credit Agreement as so amended,
the “Credit Agreement”); and
WHEREAS, in connection with the
Original Credit Agreement, the Parent made and entered into that
certain Amended and Restated Guaranty of Payment of Debt in favor
of the Agents and the Banks, dated as of June 6, 2007, as
amended by that certain First Amendment to Amended and Restated
Guaranty of Payment of Debt, dated as of September 10, 2008
and effective as of July 31, 2008 (as so amended, the
“Guaranty”);
WHEREAS, the Borrower, the Parent,
the Banks and the Agents desire to make certain amendments to the
Guaranty and the Credit Agreement to modify certain provisions
thereof, subject to the terms and conditions contained herein;
and
WHEREAS, the Banks and the Agents are
willing to enter into this Second Amendment, on the terms and
conditions set forth herein, and such terms and conditions are
agreeable to the Borrower and to the Parent.
NOW, THEREFORE, for and in
consideration of the sum of Ten and No/100 Dollars ($10.00), the
mutual covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is mutually agreed as follows:
1. AMENDMENTS TO ARTICLE
I OF THE CREDIT AGREEMENT . Article I of the Credit
Agreement shall be amended as follows:
(a) Amendment
to Definition of “Base Rate” . The definition of
“Base Rate” contained in Article I of the Credit
Agreement shall be amended by deleting it in its entirety and
replacing it with the following:
“Base
Rate” shall mean a rate per annum equal to the greatest
of (a) that interest rate established from time to time by the
Person serving as the Agent at its principal office as such
Person’s prime rate, whether or not such rate is publicly
announced, plus 1.5% per annum, (b) the Federal Funds
Effective Rate, determined one Business Day prior to the date of
determination, plus 1.0% per annum or (c) the then-applicable
LIBOR rate for a one month Interest Period, plus the Indicated
Spread for the LIBOR Rate Option. The prime rate may be other than
the lowest interest rate charged by the Person serving as the Agent
for commercial or other extensions of credit.
(b) New
Definition of “Amendment Effective Date” .
Article I of the Credit Agreement shall be amended by adding
the following new defined term in the appropriate alphabetical
order:
“Amendment Effective Date” shall mean the
“Effective Date” as defined in that certain Second
Amendment to Amended and Restated Credit Agreement and Amended and
Restated Guaranty of Payment, entered into January 30, 2009
and effective as of January 30, 2009, by and among the
Borrower, the Parent, the Agents and the Banks.
2. AMENDMENT TO ARTICLE
II OF THE CREDIT AGREEMENT . Article II of the Credit
Agreement shall be amended as follows:
(a) Amendment
to Section 2.07(a) . Section 2.07(a) of the Credit
Agreement shall be amended by deleting the penultimate sentence
thereof in its entirety and replacing it with the following:
Each Swing Loan
shall bear interest at a per annum rate equal to the
(i) Federal Funds Effective Rate plus 195 basis points (for
each day elapsed) from and including the Restatement Effective Date
to the Amendment Effective Date and (ii) the Federal Funds
Effective Rate plus 300 basis points (for each day elapsed) from
and including the Amendment Effective Date and at all times
thereafter, and shall be due and payable on the Swing Loan Maturity
Date applicable thereto.
3. AMENDMENT TO ARTICLE
IV OF THE CREDIT AGREEMENT . Article IV of the Credit
Agreement shall be amended as follows:
(a) Amendment
to Section 4.01(d) . Section 4.01(d) of the Credit
Agreement shall be amended by deleting it in its entirety and
replacing it with the following:
SECTION 4.01(d).
INDICATED SPREAD . The Indicated Spread is measured in basis
points and (i) from and including the Restatement Effective
Date to the Amendment Effective Date, shall be 50 basis points for
the Base Rate Option and 145 basis points for the LIBOR Rate Option
and (ii) from and including the Amendment Effective Date and
at all times thereafter, shall be 0 basis points for the Base Rate
Option and 250 basis points for the LIBOR Rate Option.
4. AMENDMENTS TO SECTION
9 OF THE GUARANTY . Section 9 of the Guaranty shall be
amended as follows:
(a) Amendment
to Section 9.13(a) . Section 9.13(a) of the Guaranty
shall be amended by deleting it in its entirety and replacing it
with the following:
(a) The
Guarantor will not directly or indirectly purchase, acquire, redeem
or retire any shares of its capital stock at any time outstanding
or set aside funds for any such purpose, except that, (a) from
and after the Restatement Effective Date to the Amendment Effective
Date, so long as no Event of Default or violation of
Section 9.14 of this Guaranty shall have occurred or will
result after giving effect to such purchase, acquisition,
redemption or retirement, the Guarantor may purchase, acquire,
redeem or retire shares of its outstanding capital stock in an
aggregate amount not to exceed Forty Million Dollars ($40,000,000)
minus any amounts paid as permitted by Section 9.13(c)
hereof, in any yearly period measured by the anniversary dates of
the Restatement Effective Date thereafter and
(b) notwithstanding the foregoing, from and after the
Amendment Effective Date the basket in clause (a) shall no
longer be available and, so long as no Event of Default or
violation of Section 9.14 of this Guaranty shall have occurred
or will result after giving effect thereto, and so long as the Debt
remains outstanding, Guarantor shall be permitted to purchase
shares of its Class A Common Stock, in an amount not to exceed
Four Million Dollars ($4,000,000.00) in the aggregate unless the
prior written approval of the Administrative Agent is obtained,
such purchases to be made solely for purposes of covering
employees’ minimum statutory tax withholding requirement in
connection with the vesting of restricted stock granted under the
Guarantor’s 1994 Stock Plan and only as the need to pay such
minimum statutory tax withholding requirement arises.
(b) Amendment
to Section 9.13(c) . Section 9.13(c) of the Guaranty
shall be amended by deleting it in its entirety and replacing it
with the following:
(c) The
Guarantor will not directly or indirectly declare or pay any
Dividends, provided that, so long as no Event of Default shall have
occurred and be continuing hereunder and no Event of Default shall
have occurred and be continuing under the Agreement, the Guarantor
may pay Dividends in an aggregate amount not to exceed Forty
Million Dollars ($40,000,000) minus any amounts paid as
permitted by Section 9.13(a) hereof, in any yearly period
measured by the anniversary dat
