exv10w1







Exhibit 10.1




FIRST AMENDMENT TO 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND 

SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT




     This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND SECOND AMENDED AND
RESTATED GUARANTY OF PAYMENT OF DEBT (this “First Amendment”) is made and entered into this
4th day of March, 2010 (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” or the “Guarantor”), KEYBANK NATIONAL ASSOCIATION, as Administrative
Agent (the “Agent”), PNC BANK NATIONAL ASSOCIATION, 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 and as
amended by this First Amendment.



W I  T N E S S E T  H:




     WHEREAS, the Borrower, the Banks and the Agents have previously entered into that certain
Second Amended and Restated Credit Agreement, dated as of January 29, 2010 (the “Credit
Agreement”);



     WHEREAS, in connection with the Credit Agreement, the Parent made and entered into that
certain Second Amended and Restated Guaranty of Payment of Debt in favor of the Agents and the
Banks, dated as of January 29, 2010 (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 First 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 THE CREDIT AGREEMENT. The Credit Agreement shall be amended as
follows:



          (a) Amendments to Definitions. The definition of “Guaranty Default” in Article I of
the Credit Agreement is deleted in its entirety. The phrase “[forty percent (40%)]” in the
definition of “Change of Ownership Event” in Article I of the Credit Agreement is hereby





 









 







deleted and replaced with “forty percent (40%)”. The following new definitions are inserted
in Article I of the Credit Agreement in the appropriate alphabetical order:





          “First Amendment” shall mean that certain First Amendment to Second Amended and
Restated Credit Agreement and Second Amended and Restated Guaranty of Payment of
Debt dated as of March 4, 2010 by and among Borrower, Parent, Agent and the Banks
party thereto.




          “First Amendment Effective Date” shall mean the “Effective Date” as defined in
the First Amendment.




          “Preferred Equity” shall mean up to Three Hundred Million ($300,000,000) of
Series A Cumulative Perpetual Convertible Preferred Stock issued on or about the
First Amendment Effective Date, the terms of which are set forth in the Preferred
Equity Documents.




          “Preferred Equity Designation” shall mean the Preferred Stock Designation of
Series A Cumulative Perpetual Convertible Preferred Stock attached to the
Certificate of Amendment by Directors to the Amended Articles of Incorporation of
the Parent.




          “Preferred Equity Documents” shall mean the Preferred Equity Designation,
together with any other documents, instruments or agreements governing the terms and
conditions applicable to the Preferred Equity, as the same may be amended or
modified from time to time in accordance with the terms of the First Amendment.




          “Preferred Equity Exchange” shall mean the exchange on or about the First
Amendment Effective Date of any of the 2003 Senior Notes, the 2005 Senior Notes
and/or the 2006 Puttable Senior Notes (and simultaneous Retirement thereof) in
connection with the issuance by the Parent of the Preferred Equity.



          (b) Amendment to Section 2.02(b). Section 2.02(b) of the Credit Agreement shall be
amended by deleting the last sentence of such Section in its entirety and replacing it with the
following:





          “Furthermore, the Reserved Commitment shall also be reduced, on a
dollar-for-dollar basis, to the extent any such Indebtedness is (i) refinanced or
extended with the Agent’s approval (and/or, in connection with any such extension,
the approval of the Required Banks as required by the Guaranty) in accordance with
the terms and conditions set forth in this Agreement and the Guaranty or (ii)
Retired pursuant to the Preferred Equity Exchange.”



          (c) Amendment to Section 7.05(e). Section 7.05(e) of the Credit Agreement shall be
amended by deleting the reference to “fiscal quarter of the Borrower” in such Section and replacing
it with “of the first three (3) quarter-annual fiscal periods of each fiscal year of the Borrower
and within ninety (90) days (or ninety-five (95) days so long as the Parent shall not have reported
an Event of Default under the Guaranty to the Securities and Exchange






2









 







Commission during such fiscal period or on its most recent filing with the Securities and
Exchange Commission) after the end of each fiscal year of the Borrower”.




          (d) Amendment to Section 8.11. Section 8.11(a) of the Credit Agreement shall be
amended by adding “or 8.03” immediately after the reference to “Section 8.02” in such Section.




     2. AMENDMENTS TO THE GUARANTY. The Guaranty shall be amended as follows:



          (a) Amendment to Definitions. The following new definition is inserted in Section 1
of the Guaranty in the appropriate alphabetical order:





          “Preferred Equity Hedge Transaction” shall mean the hedge transaction that may
be entered into by the Guarantor in order to increase the effective conversion price
at which the Preferred Equity is convertible into common shares of the Guarantor;
provided the cost of obtaining such hedge transaction does not exceed Twenty
Million Dollars ($20,000,000).



          (b) Amendments to Section 9.7. Section 9.7 of the Guaranty shall be amended as
follows:




               (i) By deleting the reference to “fiscal quarter of the Guarantor” in clauses (f), (k) and (l)
of such Section and replacing each with “of the first three (3) quarter-annual fiscal periods of
each fiscal year of the Guarantor and within ninety (90) days (or ninety-five (95) days so long as
the Guarantor shall not have reported an Event of Default under this Guaranty to the Securities and
Exchange Commission during such fiscal period or on its most recent filing with the Securities and
Exchange Commission) after the end of each fiscal year of the Guarantor”.



               (ii) By deleting the reference to “fiscal quarter of the Guarantor” in clause (g) of such
Section and replacing it with “of the first three (3) quarter-annual fiscal periods of each fiscal
year of the Guarantor and within one hundred-five (105) days (or one hundred-ten (110) days so long
as the Guarantor shall not have reported an Event of Default under this Guaranty to the Securities
and Exchange Commission during such fiscal period or on its most recent filing with the Securities
and Exchange Commission) after the end of each fiscal year of the Guarantor”.



               (iii) By deleting the reference to “the end of each semi annual fiscal period of each fiscal
year of the Guarantor (which end on January 31 and July 31 of each year)” in clause (h) of such
Section and replacing it with “July 31 of each year and within ninety (90) days (or ninety-five
(95) days so long as the Guarantor shall not have reported an Event of Default under this Guaranty
to the Securities and Exchange Commission during such fiscal period or on its most recent filing
with the Securities and Exchange Commission) after January 31 of each year”.



          (c) Amendment to Section 9.8. Section 9.8 of the Guaranty shall be amended by adding
the following clause (f) to the end thereof:







3









 









          “(f) Notwithstanding the foregoing, the Guarantor may utilize Cash
Sources for purposes of (i) making cash payments to holders of the Preferred
Equity in lieu of issuing fractional shares of its Class A Common Stock, to
the extent such cash payments are permitted by Section 9.13(a) hereof, (ii)
purchasing shares of Class A Common Stock, to the extent permitted by
Section 9.13(a) hereof, (iii) paying Dividends on the Preferred Equity to
the extent permitted by Section 9.13(c) hereof and (iv) paying the costs and
expenses of entering into the Preferred Equity Hedge Transaction (provided
that the costs and expenses of entering into the Preferred Equity Hedge
Transaction shall be paid out of Cash Sources previously allocated to the
Discretionary Bucket, and the amount available under the Discretionary
Bucket shall be reduced accordingly).”



          (d) Amendment to Section 9.9. Section 9.9(c) of the Guaranty shall be amended by
deleting the reference to “Fiscal Quarterly Date” in such Section and replacing it with “of the
first three (3) quarter-annual fiscal periods of each fiscal year of the Guarantor and within
ninety (90) days (or ninety-five (95) days so long as the Guarantor shall not have reported an
Event of Default under this Guaranty to the Securities and Exchange Commission during such fiscal
period or on its most recent filing with the Securities and Exchange Commission) after the end of
each fiscal year of the Guarantor”.




          (e) Amendment to Section 9.10(h). Section 9.10(h)(iv) and (v) of the Guaranty shall
be amended by adding the following to the end thereof:





          “, less the aggregate principal amount of any such Senior Notes Retired
in connection with the Preferred Equity Exchange”



          (f) Amendment to Section 9.10(i). Section 9.10(i) of the Guaranty shall be amended by
deleting it in its entirety and replacing it with the following:





          “(i) any Indebtedness or obligations of the Guarantor under the
Preferred Equity Hedge Transaction; provided, that:




          (i) the Indebtedness represented by the Preferred Equity Hedge
Transaction shall be unsecured, pari passu with the Guarantor’s
obligations under this Guaranty and structurally subordinate to the
Debt; and




          (ii) the terms and conditions of the Preferred Equity Hedge
Transaction shall not be amended or modified without the prior
written consent of the Required Banks,”



          (g) Amendment to Section 9.13. Section 9.13 of the Guaranty shall be amended by (x)
deleting clauses (a) and (c) thereof in their entirety and replacing them with the following new
clauses (a) and (c), and (y) adding the following new clause (g) to the end of said Section:




4









 









          “(a) The Guarantor will not directly or indirectly purchase, acquire,
redeem or retire, or make any cash payment upon the conversion of, any
shares of its Capital Stock at any time outstanding or set aside funds for
any such purpose, except that, so long as no Event of Default or violation
of Section 9.14 hereof shall have occurred or will result after giving
effect thereto, and so long as the Debt remains outstanding, Guarantor shall
be permitted to (i) purchase shares of its Class A Common Stock, in an
amount not to exceed Four Million Dollars ($4,000,000) 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, as amended,
and only as the need to pay such minimum statutory tax withholding
requirement arises and (ii) make, and set aside funds for purposes of
making, cash payments to the holders of the Preferred Equity in lieu of
issuing fractional shares of its Class A Common Stock in connection with the
exercise of conversion rights by such holders of the Preferred Equity in
accordance with the terms thereof.”




          “(c) The Guarantor will not directly or indirectly declare or pay (or
set aside any funds to pay) any Dividends; provided that so long as
no Event of Default has occurred and is continuing or would occur as a
result, the Guarantor may pay (i) accrued and unpaid Dividends with respect
to the outstanding Preferred Equity (and set aside funds for such purpose)
at a rate not to exceed seven percent (7.0%) annually and (ii) an amount
equal to the total value of Dividends that would have accrued and become
payable on the outstanding Preferred Equity in connection with the
Guarantor’s election to convert its Preferred Equity to Class A Common Stock
pursuant to clause 5(m)(vi) of the Preferred Equity Designation.”




          “(g) The Guarantor shall not make, or set aside any funds for purposes
of making, any cash payments with respect to the Preferred Equity other than
payments specifically permitted by subclause (a)(ii) and clause (c) of this
Section 9.13.”



     3. AMENDMENTS TO THE NOTES. The Notes shall be amended as follows:



          (a) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to KeyBank National Association under the Credit Agreement in the amount of $50,000,000.00 is
hereby deleted and a reference to “February 19, 2008” is inserted in lieu thereof.




          (b) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to PNC Bank, National Association under the Credit Agreement in the amount of $50,000,000.00 is
hereby deleted and a reference to “February 19, 2008” is inserted in lieu








5









 







thereof and the reference to “the Holder” in said paragraph is hereby deleted and a reference
to “National City Bank” is inserted in lieu thereof.




          (c) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to RBS Citizens, N.A. d/b/a Charter One under the Credit Agreement in the amount of $32,000,000.00
is hereby deleted and a reference to “January 31, 2008” is inserted in lieu thereof.




          (d) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to Manufacturers and Traders Trust Company under the Credit Agreement in the amount of
$32,000,000.00 is hereby deleted and a reference to “December 20, 2007” is inserted in lieu
thereof.




          (e) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to Calyon New York Branch under the Credit Agreement in the amount of $28,000,000.00 is hereby
deleted and a reference to “February 19, 2008” is inserted in lieu thereof. Further, due to a
recent name change, the reference to “Calyon New York Branch” in the Revolving Loan Note and in
Exhibit A to the Credit Agreement is hereby deleted and a reference to “Crédit Agricole Corporate &
Investment Bank” is inserted in lieu thereof.




          (f) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to The Huntington National Bank under the Credit Agreement in the amount of $40,000,000.00 is
hereby deleted and a reference to “December 20, 2007” is inserted in lieu thereof, and the
reference to the Original Note in said paragraph is hereby deemed to be a reference to both
Revolving Loan Notes dated December 20, 2007 and issued to The Huntington National Bank under the
2007 Credit Agreement.




          (g) The reference to “June 6, 2007” in the third paragraph of the Revolving Loan Note issued
to Fifth Third Bank under the Credit Agreement in the amount of $34,000,000.00 is hereby deleted
and a reference to “December 20, 2007” is inserted in lieu thereof.




     4. PREFERRED EQUITY.



          (a) In connection with the issuance of the Preferred Equity (i) all proceeds received by the
Parent upon such issuance, less any costs and expenses (other than the costs and expenses of
entering into the Preferred Equity Hedge Transaction) of issuance of the Preferred Equity, shall be
deemed External Capital and (ii) the Agent has been notified, pursuant to Section 7.05(h) of the
Credit Agreement, of the terms applicable to the exchange (and simultaneous Retirement) of the 2006
Puttable Senior Notes in connection with the issuance of the Preferred Equity.




          (b) The Guarantor represents and warrants to the Agents and the Banks that attached to this
First Amendment as Exhibit “A” is a true, correct and complete copy of the Preferred Equity
Designation, which sets forth all terms and conditions applicable to the Preferred Stock as of the
date hereof.







6









 








          (c) None of the Preferred Equity Documents shall be amended or modified (i) to increase the
rate of Dividends payable on the Preferred Equity or to provide for payment of such Dividends more
frequently than quarterly, if and when declared by the Board of Directors of the Parent, (ii) to
alter the calculation of the conversion price or the conversion rate applicable to the Preferred
Equity to make either such calculation less favorable to the Guarantor, (iii) to provide for any
additional or more favorable voting rights (including the ability to elect or nominate board
members) of the holders of the Preferred Equity or (iv) to modify any redemption provisions
contained in the Preferred Equity Documents, including adding additional redemption provisions,
without the prior written consent of the Agent.




     5. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the Parent 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 and by the
Parent in Section 7 of the Guaranty is incorporated herein as if fully rewritten herein at length
and is true, correct and complete as of the date hereof.




          (b) REQUISITE AUTHORITY. Each of the Borrower and the Parent has all requisite power
and authority to execute and deliver and to perform its obligations in respect of this First
Amendment and each and every other agreement, certificate, or document required by or delivered
contemporaneously with this First Amendment. Each of the Borrower and the Parent has all requisite
power and authority to perform its obligations under the Credit Agreement and the Guaranty, as
applicable, as amended by this First Amendment.




          (c) DUE AUTHORIZATION; VALIDITY. Each of the Borrower and the Parent has taken all
necessary action to authorize the execution, delivery, and performance by it of this First
Amendment and every other instrument, document, and certificate relating hereto or delivered
contemporaneously herewith and to authorize the performance of the Credit Agreement and the
Guaranty, in each case as amended by this First Amendment. This First Amendment and each other
document and agreement delivered contemporaneously herewith has been duly executed and delivered by
the Borrower and the Parent and each of this First Amendment and the Credit Agreement and the
Guaranty, each as amended by this First Amendment, is the legal, valid, and binding obligation of
each of the Borrower and the Parent, enforceable against each of them in accordance with its
respective 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 by the Borrower or the Parent of this First Amendment or any other instrument,
document, and certificate relating hereto or delivered contemporaneously herewith and the
transactions contemplated hereby or thereby or in connection with the performance of the Credit
Agreement and the Guaranty, in each case as amended by this First Amendment.




          (e) NO DEFAULTS. After giving effect to this First Amendment, 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.







7









 








          (f) NO CONFLICTS; NO CREATION OF LIENS. Neither the execution and delivery of this
First Amendment nor the performance by the Borrower and the Parent of their respective obligations
under this First Amendment or the Credit Agreement or the Guaranty, in each case as amended by this
First Amendment, will violate the provisions of any applicable law or of any applicable order or
regulations of any governmental authority having jurisdiction over the Parent or the Borrower or
any of its Subsidiaries, or will conflict with the organizational documents of the Parent or the
Borrower or any of their material permits, licenses or authorizations, or will conflict with or
result in a breach of any of the terms, conditions or provisions of any restriction or of any
agreement or instrument to which the Parent or the Borrower is now a party, or will constitute a
default thereunder, or will result in the creation or imposition of any Lien upon any of the
properties or assets of the Borrower or any of its Subsidiaries.




     6. CONDITIONS TO EFFECTIVENESS OF FIRST AMENDMENT.



          (a) CLOSING CONDITIONS. Except as otherwise expressly provided in this First
Amendment, prior to or concurrently with the Closing Date (as hereinafter defined), and as
conditions precedent to the effectiveness of the amendments and consents provided for herein, the
following actions shall be taken, all in form and substance satisfactory to the Agent and its
counsel:




               (i) AMENDMENT. The Agent shall have received counterparts of this First Amendment,
executed and delivered by the Borrower, the Parent, the Agents, and the Required Banks.



               (ii) AMENDMENT FEE. The Agent shall have received, for the account of each Bank which
has executed and delivered this First Amendment on or before the Closing Date, an amendment fee in
the amount of $20,000.00 for each such Bank.



               (iii) PAYMENT OF EXPENSES. On or before the Closing Date, the Borrower shall have
paid to the Agents all costs, fees and expenses incurred by them through the Closing Date in the
preparation, negotiation and execution of this First Amendment (including, without limitation, the
reasonable legal fees and expenses of McKenna Long & Aldridge LLP).



          (b) DEFINITION. The “Closing Date” shall mean the date this First Amendment is
executed and delivered by the Borrower, the Parent, the Required Banks and the Agents and all the
conditions set forth in subsection (a) of this Section 6 have been satisfied or, in the case of
subsection (a)(iii) above only, waived in writing by the Agent.




     7. NO WAIVER. Except as otherwise expressly provided herein, the execution and
delivery of this First Amendment by the Agents and the Banks shall not (a) constitute a waiver or
release of any obligation or liability of the Borrower under the Credit Agreement, or the Parent
under the Guaranty, in each case as in effect prior to the effectiveness of this First Amendment or
as amended hereby, (b) waive or release any Event of Default or Possible Default existing at any
time, (c) give rise to any obligation on the part of the Agents and the Banks to extend, modify or
waive any term or condition in the Credit Agreement, the Guaranty or any of the other Related
Writings or consent to any transaction or event, or (d) give rise to any defenses or counterclaims



8









 




to the right of the Agents and the Banks to compel payment of the Debt or to otherwise enforce
their rights and remedies under the Credit Agreement, the Guaranty or any other Related Writing.




     8. EFFECT ON OTHER PROVISIONS. Except as expressly amended by this First Amendment,
all provisions of the Credit Agreement and the Guaranty continue unchanged and in full force and
effect and are hereby confirmed and ratified. All provisions of the Credit Agreement and the
Guaranty shall be applicable to this First Amendment. Nothing in this First Amendment or any other
document delivered in connection herewith shall be deemed or construed to constitute, and there has
not otherwise occurred, a novation, cancellation, satisfaction, release, extinguishment or
substitution of the indebtedness evidenced by the Notes or the other obligations of the Borrower
and the Parent under the Credit Agreement, the Guaranty or any of the other Related Writings.
Parent hereby acknowledges that it consents to this First Amendment and each and every other
agreement, certificate, or document required by or delivered contemporaneously with this First
Amendment and confirms and agrees that the Guaranty, 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 this First Amendment.



     9. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which, when taken together, shall constitute
but one and the same agreement. Delivery of an executed counterpart of a signature page to this
First Amendment by telecopier or .pdf file shall be effective as delivery of a manually executed
counterpart of this First Amendment.



     10. GOVERNING LAW. This First Amendment shall be governed by, and construed in
accordance with, the laws of the State of Ohio, without regard to its principles of conflict of
laws.



     11. JURY TRIAL WAIVER. THE BORROWER, THE PARENT, THE AGENTS AND EACH OF THE BANKS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, AMONG BORROWER, THE PARENT, THE AGENTS AND THE BANKS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THE CREDIT AGREEMENT, THE GUARANTY, THIS FIRST AMENDMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO. THIS FIRST AMENDMENT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY ANY
BANK’S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT AMONG THE BORROWER, THE PARENT AND
THE BANKS, OR ANY THEREOF.



[Remainder of page intentionally left blank.]




9









 





     IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed and
delivered as of the date set forth above, each by an officer thereunto duly authorized.



	 	 	 	 	 
	 	FOREST CITY RENTAL PROPERTIES CORPORATION

 	 
	 	By:  	/s/ Robert G. O’Brien
 	 
	 	 	Name:  	Robert G. O’Brien 	 
	 	 	Title:  	Executive Vice President 	 
	 



	 	 	 	 	 
	 	FOREST CITY ENTERPRISES, INC.

 	 
	 	By:  	/s/ Robert G. O’Brien
 	 
	 	 	Name:  	Robert G. O’Brien 	 
	 	 	Title:  	Chief Financial Officer
and Executive Vice President 	 
	 



	 	 	 	 	 
	 	KEY BANK NATIONAL ASSOCIATION, 

individually and as Agent

 	 
	 	By:  	/s/ Joshua K. Mayers
 	 
	 	 	Name:  	Joshua K. Mayers 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, 
individually and as
Syndication Agent

 	 
	 	By:  	/s/ John E. Wilgus, II
 	 
	 	 	Name:  	John E. Wilgus, II 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., individually and as

Documentation Agent

 	 
	 	By:  	/s/ Michael Pomposelli
 	 
	 	 	Name:  	Michael Pomposelli 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE HUNTINGTON NATIONAL BANK

 	 
	 	By:  	/s/ Michael L. Kauffman
 	 
	 	 	Name:  	Michael L. Kauffman 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Dennis J. Redpath
 	 
	 	 	Name:  	Dennis J. Redpath 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	FIFTH THIRD BANK

 	 
	 	By:  	/s/ Tim Pace
 	 
	 	 	Name:  	Tim Pace 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	MANUFACTURERS AND TRADERS TRUST COMPANY

 	 
	 	By:  	/s/ David Ladori
 	 
	 	 	Name:  	David Ladori 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	RBS CITIZENS, N.A. dba Charter One

 	 
	 	By:  	/s/ Andrew Romanosky
 	 
	 	 	Name:  	Andrew Romanosky 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	WACHOVIA BANK, N.A.

 	 
	 	By:  	/s/ William F. Carmody
 	 
	 	 	Name:  	William F. Carmody 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By:  	/s/ Kenneth McDonnell
 	 
	 	 	Name:  	Kenneth McDonnell 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	CRÉDIT AGRICOLE CORPORATE & 

INVESTMENT BANK

 	 
	 	By:  	/s/ John A. Wain
 	 
	 	 	Name:  	John A. Wain 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                   /s/ Paul T. Ragusin
 	 
	 	 	Name:  	Paul T. Ragusin 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	By:  	/s/ Craig J. Malloy
 	 
	 	 	Name:  	Craig J. Malloy 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	BMO CAPITAL MARKETS FINANCING, INC.

 	 
	 	By:  	             /s/ David J. Bechstein
 	 
	 	 	Name:  	David J. Bechstein 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By:  	/s/ Thomas W. Million
 	 
	 	 	Name:  	Thomas W. Million 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	FIRSTMERIT BANK, N.A.

 	 
	 	By:  	/s/ Robert G. Morlan
 	 
	 	 	Name:  	Robert G. Morlan 	 
	 	 	Title:  	Senior Vice President 	 
	 








 









 








EXHIBIT “A”




(Preferred Equity Designation)



The Preferred Stock Designation is attached as Exhibit 3.1 to this Form 8-K filing.