PRIVATE PLACEMENT PURCHASE
AGREEMENT
(including any other persons or entities purchasing Notes (as
defined below) hereunder for whom the undersigned Holder holds
contractual and investment authority, the “ Holder
”) enters into this Private Placement Purchase Agreement (the
“ Agreement ”) with Forest City Enterprises,
Inc., an Ohio corporation (the “ Company ”), on
, 2009 whereby the Holder will purchase (the “
Purchase ”) a portion of the Company’s 3.625%
Puttable Equity-Linked Senior Notes due 2014 (the “
Notes ”) that will be issued pursuant to the
provisions of an Indenture dated as of
, 2009 among the Company and Bank of New York Trust Company, N.A.,
as Trustee (the “ Trustee ”), as it may be
supplemented or amended from time to time (the “
Indenture ”).
On
and subject to the terms hereof, the parties hereto agree as
follows:
Article I
: Purchase of
Notes
The
Holder hereby agrees to purchase from the Company, and the Company
hereby agrees to issue and sell to the Holder, the following
principal amount of the Notes for the cash purchase price specified
below:
Principal
Amount of Notes to be Purchased: $
(the “ Purchased Notes ”).
Purchase Price:
% of the principal amount of the Purchased Notes ($
).
The
closing of the Purchase (the “ Closing ”) shall
occur on a date (the “ Closing Date ”) no later
than three business days after the date of this Agreement. At
Closing (a) the Holder shall tender the purchase price
specified above in immediately available funds and (b) the
Company shall issue to the Holder the Purchased Notes; provided,
however, that the parties acknowledge that the issuance of the
Purchased Notes to the Holder may be delayed due to procedures and
mechanics within the system of the Depository Trust Company and
that such delay will not be a default under this Agreement so long
as (i) the Company is using its reasonable efforts to effect
the issuance of one or more global notes representing the Purchased
Notes, (ii) such delay is no longer than three business days,
and (iii) interest shall accrue on such Purchased Notes from
the Closing Date. Simultaneously with or after the Closing, the
Company may issue Notes to one or more other holders, subject to
the terms of the Indenture.
Article II
: Covenants, Representations and
Warranties of the Company
The
Company hereby covenants as follows, and makes the following
representations and warranties, each of which is and shall be true
and correct on the date hereof and on the Closing Date, to the
Holder, Lazard Frères & Co. LLC and Lazard Capital
Markets LLC, and all such covenants, representations and warranties
shall survive the Purchase.
Section 2.1 Power
and Authorization. The Company is duly incorporated,
validly existing and in good standing, and has the power, authority
and capacity to execute and deliver this Agreement and the
Indenture, to perform its obligations hereunder and thereunder, and
to consummate the Purchase contemplated hereby.
Section 2.2
Valid and Enforceable
Agreements; No Violations. This Agreement has been duly
executed and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except that such
enforcement may be subject to (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar
laws affecting or relating to enforcement of creditors’
rights generally, and (b) general principles of equity
regardless of whether such enforceability is considered in a
proceeding of law or equity (the “ Enforceability
Exceptions ”). At the Closing, the Indenture,
substantially in the form of Exhibit B hereto, will
have been duly executed and delivered
by the Company
and will govern the terms of the Purchased Notes, and will
constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with their terms,
except as such enforcement may be subject to the Enforceability
Exceptions. This Agreement, the Indenture and consummation of the
Purchase will not violate, conflict with or result in a breach of
or default under (i) the charter, bylaws or other
organizational documents of the Company, (ii) any agreement or
instrument to which the Company is a party or by which the Company
or any of its assets are bound, or (iii) any laws, regulations
or governmental or judicial decrees, injunctions or orders
applicable to the Company.
Section 2.3
Validity of the Purchased Notes. The Purchased Notes
have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to the Holder pursuant to the Purchase in accordance
with the terms of this Agreement, the Holder’s Purchased
Notes will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except that such
enforcement may be subject to the Enforceability Exceptions, and
the Purchased Notes will not be subject to any preemptive,
participation, rights of first refusal and other similar rights.
Assuming the accuracy of the Holder’s representations and
warranties hereunder, the Purchased Notes (a) will be issued
in the Purchase exempt from the registration requirements of the
Securities Act of 1933, as amended (the “Securities
Act”) pursuant to Section 4(2) of the Securities Act and
(b) will be issued in compliance with all applicable state and
federal laws concerning the issuance of the Purchased
Notes.
Section 2.4
Validity of Underlying Common Stock. The Purchased
Notes will have an equity-linked put right whereby the Purchased
Notes may be converted into shares (the “ Puttable
Equity-Linked Shares ”) of the Company’s
Class A common stock, par value $0.33 1/3 per share (the
“ Common Stock ”), in accordance with the terms
of the Purchased Notes. The Puttable Equity-Linked Shares have been
duly authorized and reserved by the Company for issuance upon the
exercise of the equity-linked put right pursuant to the Purchased
Notes and, when issued in connection with such equity-linked put
right in accordance with the terms of the Purchased Notes, will be
validly issued, fully paid and non-assessable, and the issuance of
the Puttable Equity-Linked Shares will not be subject to any
preemptive, participation, rights of first refusal or other similar
rights.
Section 2.5
Listing Approval. At the Closing Date, the Puttable
Equity-Linked Shares shall be listed on the New York Stock
Exchange.
Section 2.6
Disclosure. On or before the first business day
following the date of this Agreement, the Company shall issue a
publicly available press release and/or file with the Securities
and Exchange Commission (the “ SEC ”) a Current
Report on Form 8-K disclosing all material terms of the Purchase
(to the extent not previously publicly disclosed).
Article III : Covenants, Representations and Warranties of
the Holder
The
Holder hereby covenants as follows, and makes the
following
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