EX-10.44






Exhibit 10.44




EXECUTION COPY



FIRST AMENDMENT TO



AMENDED AND RESTATED CREDIT AGREEMENT




     This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is made and
entered into as of this 10th day of September, 2008, but shall be effective as of July 31, 2008, by
and among FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio corporation (the “Borrower”), KEY BANK
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 a certain Amended
and Restated Credit Agreement, dated as of June 6, 2007 (the “Credit Agreement”); and



     WHEREAS, in connection with the Credit Agreement, Forest City Enterprises, Inc. (the “Parent”)
made and entered into a 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 the date hereof (as so amended, the
“Guaranty”); and



     WHEREAS, the Borrower, the Banks and the Agents desire to make certain amendments to the
Credit Agreement to modify certain financial and legal provisions, subject to the terms and
conditions contained herein; and



     WHEREAS, the Banks and the Agents are willing to amend the Credit Agreement, on the terms and
conditions set forth herein, 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 INTRODUCTORY PARAGRAPH. The introductory paragraph of the Credit
Agreement shall be amended by deleting it in its entirety and replacing it with the following:




     Amended and Restated Credit Agreement, dated as of June 6, 2007 (the “Agreement”),
among FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio corporation (hereinafter sometimes
called the “Borrower”), the banking institutions from time to time party hereto (hereinafter
sometimes collectively called the “Banks” and individually a “Bank”), KEY BANK NATIONAL
ASSOCIATION, Cleveland, Ohio, as Administrative Agent for the Banks under this Agreement
(the “Agent”), NATIONAL CITY BANK, Cleveland, Ohio, as Syndication Agent for the Banks under
this Agreement (the “Syndication Agent”) and BANK OF AMERICA, N.A., as Documentation Agent
(the “Documentation Agent”).



     2. AMENDMENTS TO ARTICLE I OF THE CREDIT AGREEMENT. Article I of the Credit Agreement
shall be amended as follows:



          (a) Amendment of Definition of “Debt”. The definition of “Debt” contained in Article
I of the Credit Agreement shall be amended by deleting the phrase “prepayment premium” contained
therein and replacing it with the phrase “LIBOR breakage compensation”.




          (b) Amendment of Definition of “Federal Funds Effective Rate”. The definition of
“Federal Funds Effective Rate” contained in Article I of the Credit Agreement shall be amended by
deleting the phrase




 









 







“Business Day” in each place that it appears therein and replacing it in each case with the
phrase “Cleveland Banking Day”.




          (c) Amendment of Definition of “Interest Period”. The definition of “Interest Period”
contained in Article I of the Credit Agreement shall be amended by deleting, in its entirety, the
first paragraph contained therein and replacing it with the following:





          “Interest Period” shall mean a period of one, two, three, six or nine months or one
year (as selected by the Borrower) commencing on the applicable borrowing, continuation or
conversion date of each Loan subject to the LIBOR Rate Option and each Interest Period
occurring thereafter with respect to such Loan shall commence on the day on which the
immediately preceding Interest Period expires; provided, that if any such Interest Period
would be affected by a reduction in the Total Revolving Loan Commitments as provided in
Section 5.07(b) hereof, prepayment rights as provided in Section 5.05 hereof or the maturity
of the Loans as provided in Section 2.06 hereof, such Interest Period shall, without
affecting the Borrower’s obligations, if any, to pay to the Banks the LIBOR breakage
compensation set forth in Section 5.05 hereof, be shortened to end on the date of such
reduction, prepayment or maturity. Notwithstanding anything to the contrary contained
above:



          (d) Amendment of Definition of “Net Operating Income”. The definition of “Net
Operating Income” contained in Article I of the Credit Agreement shall be amended by deleting it in
its entirety and replacing it with the following:





          “Net Operating Income” shall mean for any relevant period, the excess of the
Borrower’s revenues over the Borrower’s operating expenses; provided, however, Net Operating
Income (a) shall not include any gains or losses from the sale of income producing real
property, other than gains or losses obtained from the sale of outlot parcels up to a total
maximum aggregate amount of $20,000,000 for the immediately preceding four consecutive
quarters, (b) shall include adjustments for cash flow of properties pursuant to which the
Borrower is receiving a preferred return over and above its ownership percentage in such
properties, (c) shall not include any gains resulting from the re-appraisal or write-up of
any assets or with respect to derivatives, (d) shall not include non-cash expenses incurred
in connection with stock-based compensation or as a result of development project
write-offs, early extinguishment of Indebtedness and derivative losses and (e) shall not
include other extraordinary, unusual or non-recurring gains, losses or expenses to the
extent such gains, losses or expenses are disclosed or reported in the Form 8-K that is
furnished to the Securities and Exchange Commission with respect to such period, in each
case (including, without limitation, the calculation of revenues and operating expenses) as
determined in accordance with the Pro Rata Consolidation Method.



          (e) Amendment of Definition of “Pro Rata Consolidation Method”. The definition of
“Pro Rata Consolidation Method” contained in Article I of the Credit Agreement shall be amended by
deleting it in its entirety and replacing it with the following:





          “Pro Rata Consolidation Method” shall mean the pro rata method of consolidation as
fully reconciled to GAAP and as reported on each Form 8-K that is furnished by the Guarantor
(or on its behalf) to the Securities and Exchange Commission.



          (f) Addition of Definition of “LIBOR Breakage Rate”. Article I of the Credit
Agreement shall be amended by adding in its appropriate alphabetical place, the following
definition for “LIBOR Breakage Rate”:





          “LIBOR Breakage Rate” shall have the meaning set forth in Section 5.05(b) hereof.



          (g) Addition of Definition of “Taxes”. Article I of the Credit Agreement shall be
amended by adding in its appropriate alphabetical place, the following definition for “Taxes”:





          “Taxes” shall have the meaning set forth in Section 4.07 hereof.



 









 





          (h) Deletion of Definition of “Prepayment Premium Rate”. Article I of the Credit
Agreement shall be amended by deleting the definition of “Prepayment Premium Rate”.




     3. AMENDMENT TO CERTAIN PROVISIONS REFERRING TO “CO-DOCUMENTATION AGENTS”. Each
reference to “Co-Documentation Agents” in the Credit Agreement is hereby deleted and shall be
replaced with the term “Documentation Agent”.



     4. AMENDMENTS TO ARTICLE II OF THE CREDIT AGREEMENT. Article II of the Credit
Agreement shall be amended as follows:



          (a) Amendment of Section 2.01. Section 2.01 of the Credit Agreement shall be amended
by (i) adding the phrase “plus the Permitted Non-Affiliate Loan Reserve” immediately after the
phrase “plus the Swing Line Exposure” contained in the first sentence thereof, and (ii) adding the
phrase “and of the Permitted Non-Affiliate Loan Reserve” immediately after the phrase “LC
Obligations then outstanding” contained in the second sentence thereof.




     (b) Amendment of Section 2.03(a). Section 2.03(a) of the Credit Agreement shall be
amended by adding the phrase “minus such Bank’s Pro rata share of the Permitted Non-Affiliate Loan
Reserve” immediately after the phrase “Commitment of such Bank” contained in the second sentence
thereof, but leaving it the same in all other respects.



          (c) Amendment to Section 2.07(a). Section 2.07(a) of the Credit Agreement shall be
amended by deleting the word “to” contained in the last sentence thereof and replacing it with the
word “from”, but leaving it the same in all other respects.




     5. AMENDMENTS TO ARTICLE III OF THE CREDIT AGREEMENT. Article III of the Credit
Agreement shall be amended as follows:



          (a) Amendment of Section 3.01(a). Section 3.01(a) of the Credit Agreement shall be
amended by deleting the word “to” immediately following the word “available” contained in the first
sentence thereof and replacing it with the phrase “for the account of”.




          (b) Amendment of Section 3.01(a). Section 3.01(a) of the Credit Agreement shall be
amended by deleting the third sentence contained therein, in its entirety, and replacing it with
the following:





          The Borrower shall pay a fee for each letter of credit to the Agent for the pro rata
benefit of the Banks, upon issuance of each letter of credit and, thereafter, upon the
annual anniversary of the issuance of each such letter of credit remaining outstanding, in
the amount of the Indicated Spread for Revolving Loans under the LIBOR Rate Option on the
stated amount of the letter of credit; provided that, the Agent shall be entitled to
..125% of such fee prior to the distribution of the balance of such fee to the Banks based on
their Pro rata shares.



          (c) Amendment of Section 3.01(b). Section 3.01(b) of the Credit Agreement shall be
amended by (i) deleting the phrase “to the extent of” contained in the first sentence thereof and
replacing it with the phrase “based on”, (ii) deleting the phrase “of the Total Revolving Loan
Commitments” contained in the first sentence thereof, and (iii) deleting the sixth sentence
contained therein, in its entirety, and replacing it with the following:





          The Agent shall also be entitled to recover from the Bank or the Borrower, as the case
may be, interest on such corresponding amount in respect of each day from the date such
corresponding amount was paid by the Agent to the date such corresponding amount is
recovered by the Agent at a rate per annum equal to (i) if paid by such Bank, the overnight
Federal Funds Effective Rate or (ii) if paid by the Borrower, the rate of interest then
applicable to Revolving Loans subject to the Base Rate Option, calculated in accordance with
Article IV.



 









 





     6. AMENDMENTS TO ARTICLE IV OF THE CREDIT AGREEMENT. Article IV of the Credit
Agreement shall be amended as follows:



          (a) Amendment of Section 4.02. Section 4.02 of the Credit Agreement shall be amended
by deleting it in its entirety and replacing it with the following:





          SECTION 4.02. INTEREST PERIODS. The Borrower shall have the option to select
and advise the Agent of the Interest Periods the Borrower has selected for Revolving Loans
not less than three (3) Cleveland Banking Days prior to (a) the Restatement Effective Date,
for the Revolving Loans to be made on the Restatement Effective Date, (b) each Interest
Adjustment Date, (c) the date any Revolving Loans are to be made subsequent to the
Restatement Effective Date, and (d) any date on which the Borrower desires to have any
portion of the principal of the Revolving Loans not subject to the LIBOR Rate Option become
subject to the LIBOR Rate Option, provided, that Revolving Loans subject to the Base
Rate Option may not be converted into Revolving Loans subject to the LIBOR Rate Option and
Revolving Loans subject to the LIBOR Rate Option may not be continued as Revolving Loans
subject to the LIBOR Rate Option if an Event of Default is in existence on the date of such
conversion or continuation. Each Interest Period selected shall apply to not less than
$500,000 in principal amount of the Revolving Loans; provided, that at no time shall
there be more than ten (10) Revolving Loans outstanding at any time, whether subject to the
Base Rate Option or the LIBOR Rate Option. The principal amount subject to each Interest
Period shall be deemed distributed among the Banks, based on their Pro rata shares, with
respect to the respective Revolving Loans to which the Interest Period applies. If the
Borrower fails to timely select any Interest Period, the Borrower shall be deemed to have
elected to convert such Loan to a Loan subject to the Base Rate Option, effective as of the
expiration date of such current Interest Period.



          (b) Amendment of Section 4.06. Section 4.06 of the Credit Agreement shall be amended
by deleting it in its entirety and replacing it with the following:





          SECTION 4.06. RESERVES OR DEPOSIT REQUIREMENTS, ETC. If at any time any law,
treaty, regulation (including, without limitation, Regulation D of the Board of Governors of
the Federal Reserve System), governmental rule or order (whether or not having force of law)
or the interpretation or administration thereof by any governmental authority charged with
the administration thereof or any central bank or other fiscal, monetary or other authority
shall impose, modify or deem applicable any reserve and/or special deposit requirement
against assets held by, or deposits in or for the amount of any Loans by, any Bank, and the
result of the foregoing is to increase the cost (whether by incurring a cost or adding to a
cost) to such Bank of making or maintaining Loans hereunder or to reduce the amount of
principal or interest received by such Bank with respect to such Loans, then upon demand by
such Bank the Borrower shall pay to such Bank from time to time on each interest payment
date with respect to such Loans, as additional consideration hereunder, additional amounts
sufficient to fully compensate and indemnify such Bank for such increased cost or reduced
amount, assuming (which assumption such Bank need not corroborate) such additional cost or
reduced amount were allocable to such Loans. A statement as to the increased cost or
reduced amount as a result of any event mentioned in this Section 4.06, setting forth the
calculations therefor, shall be submitted by such Bank to the Borrower not later than one
hundred fifty (150) days after the events giving rise to the same occurred and shall, in the
absence of manifest error, be conclusive and binding as to the amount thereof.
Notwithstanding any other provision of this Agreement, after any such demand for
compensation by any Bank, the Borrower, upon at least one (1) Cleveland Banking Day’s prior
written notice to such Bank through the Agent, may prepay all Loans in full regardless of
the Interest Period of any thereof. Any such prepayment of Loans subject to the LIBOR Rate
Option shall be subject to the LIBOR breakage compensation set forth in Section 5.05 hereof.



          (c) Amendment of Section 4.07. Section 4.07 of the Credit Agreement shall be amended
by (i) deleting the phrase “shall be subject to the prepayment premium” contained in the last
sentence of the third paragraph thereof and replacing it with the phrase “of Loans subject to the
LIBOR Rate Option shall be subject to the LIBOR breakage compensation” and (ii) adding a new fourth
paragraph to the end of such Section 4.07 as follows:




 









 









          All payments made by the Borrower hereunder or under any Note will be made free and
clear of, and without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the second
succeeding sentence, any tax imposed on or measured by the net income or net profits of a
Bank and franchise taxes imposed on it pursuant to the laws of the jurisdiction under which
such Bank is organized or the jurisdiction in which the principal office or the domestic
lending office of such Bank, as applicable, is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes and such additional amounts as may be necessary
so that every payment by it of all amounts due hereunder or under any Note, after
withholding or deduction for or on account of any Taxes will not be less than the amount
provided for herein or in such Note. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the Borrower agrees to reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net income or profits
of such Bank by reason of the payment of such Taxes and net of any tax benefits received by
such Bank pursuant to the laws of the jurisdiction in which such Bank is organized or in
which the principal office or domestic lending office of such Bank is located, as the case
may be, or under the laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or the domestic lending office of such Bank is
located, as the case may be, and for any withholding of income or similar taxes imposed by
the United States of America as such Bank shall determine are payable by, or withheld from,
such Bank in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such Bank pursuant
to this sentence, which request shall be accompanied by a statement from such Bank setting
forth, in reasonable detail, the computations used in determining such amounts. The
Borrower will furnish to the Agent, on behalf of the applicable Bank, within 45 days after
the date the payment of any Taxes, or any withholding or deduction on account thereof, is
due pursuant to applicable law copies of tax receipts (certified, if available), or other
evidence reasonably satisfactory to the applicable Bank, evidencing such payment by the
Borrower. The Borrower will indemnify and hold harmless the Agent and each Bank, and
reimburse the Agent or such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid or withheld by the Agent or such Bank that are the obligations of
the Borrower pursuant to this Section 4.07.



          (d) Amendment of Section 4.09. Section 4.09 of the Credit Agreement shall be amended
by adding the phrase “each Bank and” immediately before each reference to “the Borrower” contained
therein, but leaving it the same in all other respects.




          (e) Amendment of Section 4.10. Section 4.10 of the Credit Agreement shall be amended
by deleting each reference to the phrase “law, treaty, regulation, governmental rule, guideline,
order or request” contained therein and replacing it with the phrase “law, treaty, regulation,
governmental rule or order”, and by deleting the last sentence contained therein, in its entirety,
and replacing it with the following:





          Any such prepayment of Loans subject to the LIBOR Rate Option may be made without
payment of the LIBOR breakage compensation provided for in Section 5.05 hereof, but the
Borrower shall compensate such Bank(s) for any other costs or expenses relating to such Loan
incurred in connection with the events provided for in this Section on written request to
the Borrower describing such costs or expenses.



          (f) Addition of New Section 4.12. Article IV of the Credit Agreement shall be amended
by adding a new Section 4.12 as follows:





          SECTION 4.12. CAPITAL ADEQUACY. If any Bank shall have determined, on a
reasonable basis (which determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto), after the date of this Agreement, that the adoption of
or any change in any applicable law, rule or regulation regarding capital adequacy, or any
change in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation



 









 







or administration thereof, or compliance by such Bank (or its lending office) with any
request or directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank’s capital (or the capital of its holding company)
as a consequence of its obligations hereunder to a level below that which such Bank (or its
holding company) could have achieved but for such adoption, change or compliance (taking
into consideration such Bank’s policies or the policies of its holding company with respect
to capital adequacy) by an amount deemed by such Bank to be material, then from time to
time, within 30 days after delivery to the Borrower by such Bank of a certificate setting
forth such calculation, the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank (or its holding company) for such reduction. Such Bank
shall designate a different lending office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to it. A certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive absent manifest error as to the amount or amounts owing to such Bank. In
determining such amount, the Banks may use any reasonable averaging and attribution methods.
Failure on the part of any Bank to demand compensation for any reduction in return on
capital with respect to any period shall not constitute a waiver of such Bank’s rights to
demand compensation for any reduction in return on capital in such period or in any other
period. The protection of this Section shall be available to the Banks regardless of any
possible contention of the invalidity or inapplicability of the law, regulation or other
condition which shall have been imposed.



          (g) Addition of New Section 4.13. Article IV of the Credit Agreement shall be amended
by adding a new Section 4.13 as follows:





          SECTION 4.13. LIMITATIONS ON CLAIMS. Notwithstanding anything in this
Agreement to the contrary, (a) no Bank shall be entitled to compensation or payment or
reimbursement under Section 4.06, 4.07, 4.10 or 4.12 for any amounts incurred or accruing
more than 120 days prior to the giving of notice to the Borrower of additional costs or
other amounts of the nature described in such Sections and (b) no Bank shall be entitled to
compensation for any reduction referred to in Section 4.12 if it shall not at the time be
the general policy or practice of such Bank to demand such compensation in similar
circumstances under comparable provisions of other credit agreements.



     7. AMENDMENTS TO ARTICLE V OF THE CREDIT AGREEMENT. Article V of the Credit Agreement
shall be amended as follows:



          (a) Amendment of Section 5.01(a). Section 5.01(a) of the Credit Agreement shall be
amended by deleting the phrase “two (2)” and replacing it with the phrase “three (3)”, but leaving
it the same in all other respects.




          (b) Amendment of Section 5.03(c). Section 5.03(c) of the Credit Agreement shall be
amended by deleting the word “and” at the end of such subsection (c), but leaving it the same in
all other respects.




          (c) Amendment of Section 5.03(d). Section 5.03(d) of the Credit Agreement shall be
amended by deleting the period at the end of such subsection (d) and replacing it with “; and”, but
leaving it the same in all other respects.




          (d) Addition of New Section 5.03(e). Section 5.03 of the Credit Agreement shall be
amended by adding a new Section 5.03(e) as follows:





          (e) the representations and warranties of the Parent contained in Section 7 of the
Guaranty being true and correct in all material respects with the same force and effect as
if made on and as of the date of such Loan or such letter of credit, as applicable, except
to the extent that any thereof expressly relate to an earlier date.



 









 





          (e) Amendment of Section 5.03. Section 5.03 of the Credit Agreement shall be amended
by deleting the phrase “subsections (b), (c) and (d)” contained in the last paragraph thereof and
replacing it with the phrase “subsections (b), (c), (d) and (e)”, but leaving it the same in all
other respects.




          (f) Amendment of Section 5.04(a). Section 5.04(a) of the Credit Agreement shall be
amended by deleting, in its entirety, the fourth sentence contained therein and replacing it with
the following:





          The Agent shall distribute to each Bank entitled thereto its Pro rata share of the
amount of principal, interest and other amounts received by it for the account of such Bank
on the same day the Agent receives payment thereof from the Borrower in immediately
available funds, unless the Agent does not receive such payment from the Borrower until
after 12:00 noon, in which case the Agent shall make payment thereof to the Banks entitled
thereto on the next Cleveland Banking Day.



          (g) Amendment of Section 5.05(a). Section 5.05(a) of the Credit Agreement shall be
amended by deleting the first parenthetical contained therein and replacing it with the following
parenthetical, but leaving it the same in all other respects:





          (subject to the payment of LIBOR breakage compensation as hereinafter described in this
Section 5.05 with respect to Loans subject to the LIBOR Rate Option).



          (h) Amendment of Section 5.05(b). Section 5.05(b) of the Credit Agreement shall be
amended by deleting it in its entirety and replacing it with the following:





          (b) The Borrower agrees that if LIBOR as determined as of 11:00 a.m. London time, two
(2) London Banking Days’ prior to the date of prepayment or acceleration of any Loans
(hereinafter, “Prepayment LIBOR”) shall be lower than the last LIBOR previously determined
for those Loans accruing interest at LIBOR with respect to which prepayment is intended to
be made or that are accelerated prior to the end of the applicable Interest Period
(hereinafter, “Last LIBOR”), then the Borrower shall, upon written notice by the Agent,
promptly pay to the Agent, for the account of each of the Banks, in immediately available
funds, LIBOR breakage compensation measured by a rate (the “LIBOR Breakage Rate”) which
shall be equal to the difference between the Last LIBOR and the Prepayment LIBOR. In
determining the Prepayment LIBOR payable to each Bank, the Agent shall apply a rate for each
Bank equal to LIBOR for a deposit approximately equal to each Bank’s portion of such
prepayment or accelerated balance which would be applicable to an Interest Period commencing
on the date of such prepayment or acceleration and having a duration as nearly equal as
practicable to the remaining duration of the actual Interest Period during which such
acceleration occurs or prepayment is to be made. In addition, the Borrower shall
immediately pay directly to each Bank the amount claimed as additional costs or expenses
(including, without limitation, cost of telex, wires, or cables) incurred by such Bank in
connection with the prepayment or acceleration upon the Borrower’s receipt of a written
statement from such Bank. The LIBOR Breakage Rate shall be applied to all or such part of
the principal amounts of the Notes that relate to the Loans subject to the LIBOR Rate Option
to be prepaid, or that are accelerated and the LIBOR breakage compensation shall be computed
for the period commencing with the date on which such prepayment is to be made or
acceleration occurs to that date which coincides with the last day of the Interest Period
previously established when the Loans subject to the LIBOR Rate Option, which are to be
prepaid or are accelerated, were made. Each voluntary prepayment of a Loan shall be in the
aggregate principal sum of not less than One Million Dollars ($1,000,000) (except in the
case of a Loan initially made in an aggregate amount less than One Million Dollars
($1,000,000)) and, if greater, in an integral multiple of Two Hundred Fifty Thousand Dollars
($250,000). In the event the Borrower cancels a proposed Loan subject to the LIBOR Rate
Option subsequent to the delivery to the Agent of a Notice of Borrowing with respect to such
Loan, but prior to the draw down of funds thereunder, or the continuation or conversion of a
Loan subject to the LIBOR Rate Option does not occur for any reason (other than a default by
a Bank or the Agent), such cancellation or failure to continue or convert shall be treated
as a prepayment subject to the aforementioned LIBOR breakage compensation.



          (i) Amendment of Section 5.07(b). Section 5.07(b) of the Credit Agreement shall be
amended by deleting it in its entirety and replacing it with the following:




 









 









          (b) The Borrower shall have the right at all times to permanently reduce the Total
Revolving Loan Commitments in whole or in part by giving written notice of the reduction to
the Agent at least one Cleveland Banking Day prior to the reduction, each such reduction to
be in an amount equal to at least $10,000,000, or the then Total Revolving Loan Commitments
if the then Total Revolving Loan Commitments are less than $10,000,000. Each such reduction
shall reduce each Bank’s Commitment by an amount based on their Pro rata shares of the Total
Revolving Loan Commitments in effect immediately prior to such reduction. Concurrently with
each reduction, the Borrower shall prepay the amount, if any, together with interest thereon
by which the sum of the aggregate unpaid principal amount of the Loans plus the LC
Obligations plus the Permitted Non-Affiliate Loan Reserve exceeds the Total Revolving Loan
Commitments as so reduced in accordance with Section 5.05 of this Agreement.



     8. AMENDMENTS TO ARTICLE VIII OF THE CREDIT AGREEMENT. Article VIII of the Credit
Agreement shall be amended as follows:



          (a) Amendment of Section 8.04(a). Section 8.04(a) of the Credit Agreement shall be
amended by adding the phrase “and letters of credit issued hereunder” immediately after the word
“hereunder” contained therein, but leaving it the same in all other respects.




          (b) Amendment of Section 8.04(c). Section 8.04(c) of the Credit Agreement shall be
amended by deleting the phrases “Business Days” and “Business Day” contained therein and replacing
them with the phrases “Cleveland Banking Days” and “Cleveland Banking Day”, respectively, but
leaving it the same in all other respects.




          (c) Amendment to Section 8.05(a). Section 8.05(a) of the Credit Agreement shall be
amended by deleting the phrase “Section 7.10” contained therein and replacing it with the phrase
“Sections 7.04 and/or 7.10”, but leaving it the same in all other respects.




          (d) Amendment to Section 8.15(b)(iii)(3). Section 8.15(b)(iii)(3) of the Credit
Agreement shall be amended by deleting the phrase “Revolving Loans” contained therein and replacing
it with the word “Debt”, but leaving it the same in all other respects.




          (e) Amendment to Section 8.16(b)(iii). Section 8.16(b)(iii) of the Credit Agreement
shall be amended by deleting the phrase “their Notes” contained therein and replacing it with the
phrase “their 2006 Puttable Senior Notes”, but leaving it the same in all other respects.




     9. AMENDMENTS TO ARTICLE IX OF THE CREDIT AGREEMENT. Article IX of the Credit
Agreement shall be amended as follows:



          (a) Amendment of Section 9.17. Section 9.17 of the Credit Agreement shall be amended
by deleting the phrase “The proceeds of the Loans will not be used” contained in the second
sentence thereof, and replacing it with the phrase “Neither the proceeds of the Loans nor any
letter of credit issued hereunder will be used”, but leaving it the same in all other respects.




          (b) Amendment of Section 9.20. Section 9.20 of the Credit Agreement shall be amended
by adding the phrase “or the issuance of any letter of credit hereunder” immediately after the
phrase “proceeds of each Loan” contained therein, but leaving it the same in all other respects.




     10. AMENDMENTS TO ARTICLE X OF THE CREDIT AGREEMENT. Article X of the Credit
Agreement shall be amended as follows:



          (a) Amendment of Section 10.04. Section 10.04 of the Credit Agreement shall be
amended by deleting it in its entirety and replacing it with the following:





          SECTION 10.04. CROSS DEFAULT. If the Borrower and/or any Subsidiary defaults
(a) in any payment of principal or interest due and owing upon any Indebtedness (other than
the Debt) in



 









 







excess of $1,000,000 (whether due and owing by scheduled maturity, required prepayment,
acceleration, demand or otherwise), or (b) in the case of the Borrower, in the payment or
performance of any obligation permitted to be outstanding or incurred pursuant to Sections
8.04 or 8.05, 8.06, or 8.07 hereof in excess of $1,000,000, beyond any period of grace
provided with respect thereto or (c) in the performance of any other agreement, term or
condition contained in any agreement under which any such obligation is created, if the
effect of such default under this clause (c) is to accelerate the maturity of the related
Indebtedness or to permit the holder thereof to cause such Indebtedness to become due prior
to its stated maturity or to foreclose on any lien on property of the Borrower securing the
same, except that defaults in payment or performance of non-recourse obligations of the
Borrower or any Subsidiary shall not constitute Events of Default under this Section 10.04
unless such defaults have, individually or in the aggregate, a Material Adverse Effect on
the Borrower.



          (b) Amendment of Section 10.06(a)(iv). Section 10.06(a)(iv) of the Credit Agreement
shall be amended by adding the phrase “(the “Bankruptcy Code”), whether in a voluntary or
involuntary case or proceeding” immediately after the phrase “from time to time” contained therein,
but leaving it the same in all other respects.




          (c) Amendment of Section 10.07(e). Section 10.07(e) of the Credit Agreement shall be
amended deleting the phrase “Title 11 of the United States Code, as the same may be amended from
time to time (the “Bankruptcy Code”)” contained therein and replacing it with the phrase “the
Bankruptcy Code, whether in a voluntary or involuntary case or proceeding”, but leaving it the same
in all other respects.




          (d) Amendment to Section 10.10. 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, SENIOR NOTES OR 2006 PUTTABLE SENIOR
NOTES. If an Event of Default (as defined in the Guaranty) has occurred and is
continuing or the Guaranty shall for any reason cease to be valid and binding against the
Parent or the Parent shall so state in writing. If the Parent defaults in the payment or
performance of any obligation under any of the Senior Notes, the 2006 Puttable Senior Notes,
the Indenture or the 2006 Indenture (after giving effect to any applicable grace periods),
or in the performance of any other agreement, covenant, term or condition in any of the
Senior Notes the 2006 Puttable Senior Notes, the Indenture or the 2006 Indenture (after
giving effect to any applicable grace periods).



     11. AMENDMENTS TO ARTICLE XIII OF THE CREDIT AGREEMENT. Article XIII of the Credit
Agreement shall be amended as follows:



          (a) Amendment to Section 13.08(a). Section 13.08(a) of the Credit Agreement shall be
amended by (i) deleting the phrase “assign its rights hereunder” contained in the first sentence
thereof and replacing it with the phrase “assign any of its rights or obligations hereunder” and
(ii) deleting the phrase “payable by such Bank” contained in the second sentence thereof and
replacing it with the phrase “payable to such Bank”.




          (b) Amendment to Section 13.08(d). Section 13.08(d) of the Credit Agreement shall be
amended by deleting the phrase “Administrative Agent” contained therein and replacing it with the
word “Agent”, but leaving it the same in all other respects.




     12. 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. The Borrower has all
requisite power and authority to perform its obligations under the Credit Agreement as amended 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 by the Borrower of this Amendment and the transactions contemplated hereby.




          (e) NO DEFAULTS. After giving effect to this 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 under the Credit Agreement.




     13. 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:




               (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:




               (A) Certified copy of the resolutions of the board of directors of the Borrower
evidencing approval of the execution, delivery and performance of this Amendment;




               (B) 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
Amended and Restated Guaranty of Payment of Debt, dated as of even date herewith (the “First
Amendment to Guaranty”);




               (C) A good standing certificate, dated as of a recent date, from the Secretary of State
of the State of Ohio for the Borrower;




               (D) A good standing certificate, dated as of a recent date, from the Secretary of State
of the State of Ohio for the Parent;




               (E) 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;




               (F) 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;




               (G) Counterparts of this Amendment, executed and delivered by the Borrower, the Agents,
and the Banks and of the Consent of Guarantor to this Amendment executed and delivered by
the Parent;



 









 






               (H) 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;




               (I) 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; and




               (J) Counterparts of the First Amendment to Guaranty, executed and delivered by the
Parent, the Agents and the Banks.



               (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 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).



               (v) REVISED SCHEDULES. If necessary to make the representations and warranties
contained in Section 16(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 17 have been satisfied or waived in writing by the Agents.




     14. NO WAIVER. Except as otherwise expressly provided herein, the execution and
delivery of this 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 as in effect prior to the
effectiveness of this 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 or any of
the other Related Writings, or (d) give rise to any defenses or counterclaims 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 or under any Related Writing.



     15. 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.



     16. EXECUTION IN COUNTERPARTS. This 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
Amendment by telecopier or pdf file shall be effective as delivery of a manually executed
counterpart of this Amendment.



 









 





     17. GOVERNING LAW. This 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.



     18. JURY TRIAL WAIVER. THE BORROWER, 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 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, THIS AMENDMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER 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 AND THE BANKS, OR ANY THEREOF.



[Remainder of page intentionally left blank.]




 









 





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



	 	 	 	 	 
	 	FOREST CITY RENTAL PROPERTIES CORPORATION
 	 
	 	/s/ CHARLES A. RATNER
 	 
	 	Name:  	Charles A. Ratner 	 
	 	Title:  	Chairman of the Board 	 
	 
	 	KEY BANK NATIONAL ASSOCIATION individually

and as Agent

 	 
	 	/s/ JOSHUA MAYERS
 	 
	 	Name:  	Joshua Mayers 	 
	 	Title:  	Vice President 	 
	 
	 	NATIONAL CITY BANK individually and as

Syndication Agent

 	 
	 	/s/ JOHN E. WILGUS, II
 	 
	 	Name:  	John E. Wilgus, II 	 
	 	Title:  	Senior Vice President 	 
	 
	 	THE HUNTINGTON NATIONAL BANK

 	 
	 	/s/ RYAN J. TERRANO
 	 
	 	Name:  	Ryan J. Terrano 	 
	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Signature Page 1 to 3

First Amendment to Amended and Restated Credit Agreement



 









 





	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	/s/ ADAM SHEETS
 	 
	 	Name:  	Adam Sheets 	 
	 	Title:  	Assistant Vice President 	 
	 
	 	FIRST MERIT BANK

 	 
	 	/s/ ROBERT G. MORLAN
 	 
	 	Name:  	Robert G. Morlan 	 
	 	Title:  	Senior Vice President 	 
	 
	 	MANUFACTURERS AND TRADERS TRUST COMPANY

 	 
	 	/s/ DAVID LADORI
 	 
	 	Name:  	David Ladori 	 
	 	Title:  	Assistant Vice President 	 
	 
	 	FIFTH THIRD BANK

 	 
	 	/s/ ROY C. LANCTOT
 	 
	 	Name:  	Roy C. Lanctot 	 
	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A.

 	 
	 	/s/ MICHAEL M. POMPOSELLI
 	 
	 	Name:  	Michael M. Pomposelli 	 
	 	Title:  	Senior Vice President 	 
	 



Signature Page 2 to 3

First Amendment to Amended and Restated Cretit Agreement




 









 








	 	 	 	 	 
	 	RBS CITIZENS, N.A. dba

CHARTER ONE

 	 
	 	/s/ ERIN L. MAHON
 	 
	 	Name:  	Erin L. Mahon 	 
	 	Title:  	Assistant Vice President 	 
	 
	 	BMO CAPITAL MARKETS FINANCING, INC.

 	 
	 	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	 	CALYON NEW YORK BRANCH

 	 
	 	/s/ PAUL T. RAGUSIN
 	 
	 	Name:  	Paul T. Ragusin 	 
	 	Title:  	Director 	 
	 
	 	 	 
	 	                  /s/ JOHN A. WAIN
 	 
	 	Name:  	John A. Wain 	 
	 	Title:  	Managing Director 	 
	 
	 	WACHOVIA BANK, N.A.

 	 
	 	/s/ LEONARD CLARK, JR.
 	 
	 	Name:  	Leonard Clark, Jr. 	 
	 	Title:  	Vice President 	 
	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	/s/ KENNETH R. MCDONNELL
 	 
	 	Name:  	Kenneth R. McDonnell 	 
	 	Title:  	Vice President 	 
	 



Signature Page 3 to 3

First Amendment to Amended and Restated Credit Agreement





 









 








CONSENT OF GUARANTOR





     FOREST CITY ENTERPRISES, INC., an Ohio corporation, Guarantor under that certain Amended and
Restated Guaranty of Payment of Debt issued on or about 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
(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 Amended and Restated Credit
Agreement, hereby acknowledges that it consents to the foregoing First Amendment to Amended and
Restated 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 Amended and Restated Credit Agreement.



	 	 	 	 	 
	Dated:  September 10, 2008 	FOREST CITY ENTERPRISES, INC.

 	 
	 	/s/ CHARLES A. RATNER
 	 
	 	Name:  	Charles A. Ratner 	 
	 	Title:  	Chief Executive Officer and President