EX-10.1



 





EXHIBIT 10.1




      




AMENDED AND RESTATED CREDIT AGREEMENT




by and among




FOREST CITY RENTAL PROPERTIES CORPORATION




as Borrower




and




VARIOUS LENDING INSTITUTIONS




as Banks




and




KEYBANK NATIONAL ASSOCIATION




as Administrative Agent for the Banks




and




NATIONAL CITY BANK




as Syndication Agent for the Banks




and




BANK OF AMERICA, N.A. and

LASALLE BANK NATIONAL ASSOCIATION




as Co-Documentation Agents




Dated as of June 6, 2007




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Article	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II REVOLVING LOANS
	 	 	15	 
	SECTION 2.01. AMOUNT OF THE REVOLVING LOAN FACILITY
	 	 	15	 
	SECTION 2.02. REVOLVING LOAN COMMITMENTS
	 	 	15	 
	SECTION 2.03. REVOLVING LOANS
	 	 	15	 
	SECTION 2.04. PURPOSE OF THE REVOLVING LOANS
	 	 	16	 
	SECTION 2.05. REVOLVING LOAN NOTES
	 	 	16	 
	SECTION 2.06. REPAYMENT OF THE REVOLVING LOAN NOTES
	 	 	16	 
	SECTION 2.07 SWING LOANS
	 	 	16	 
	 
	 	 	 	 
	ARTICLE III LETTERS OF CREDIT
	 	 	18	 
	SECTION 3.01. LETTERS OF CREDIT
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IV INTEREST ON THE REVOLVING LOANS
	 	 	20	 
	SECTION 4.01(a). INTEREST OPTIONS
	 	 	20	 
	SECTION 4.01(b). LIBOR RATE OPTION
	 	 	20	 
	SECTION 4.01(c). BASE RATE OPTION
	 	 	20	 
	SECTION 4.01(d). INDICATED SPREAD
	 	 	20	 
	SECTION 4.02. INTEREST PERIODS
	 	 	21	 
	SECTION 4.03. INTEREST PAYMENT DATES
	 	 	21	 
	SECTION 4.04. INTEREST CALCULATIONS
	 	 	21	 
	SECTION
4.05. POST-DEFAULT RATE
	 	 	21	 
	SECTION 4.06. RESERVES OR DEPOSIT REQUIREMENTS, ETC.
	 	 	21	 
	SECTION 4.07. TAX LAW, ETC.
	 	 	22	 
	SECTION 4.08. INDEMNITY
	 	 	23	 
	SECTION 4.09. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE
	 	 	23	 
	SECTION 4.10. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL
	 	 	23	 
	SECTION 4.11. FUNDING
	 	 	24	 
	 
	 	 	 	 
	ARTICLE V AGREEMENTS AND CONDITIONS APPLICABLE TO ALL REVOLVING LOANS
	 	 	24	 
	SECTION 5.01. NOTICE OF BORROWING
	 	 	24	 
	SECTION 5.02. DISBURSEMENT OF FUNDS
	 	 	25	 
	SECTION 5.03. CONDITIONS TO LOANS AND LETTERS OF CREDIT
	 	 	26	 
	SECTION 5.04. PAYMENT ON NOTES, ETC.
	 	 	26	 
	SECTION 5.05. PREPAYMENT
	 	 	27	 
	SECTION 5.06. UNUSED COMMITMENT FEES
	 	 	27	 
	SECTION 5.07. MODIFICATION OF THE TOTAL REVOLVING LOAN COMMITMENTS
	 	 	28	 






(i)









 






	 	 	 	 	 
	Article	 	Page	 
	SECTION 5.08. EXTENSIONS OF THE LOANS
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VI CONDITIONS PRECEDENT
	 	 	29	 
	SECTION 6.01. CORPORATE AND LOAN DOCUMENTS
	 	 	29	 
	SECTION 6.02. OPINION OF COUNSEL FOR PARENT
	 	 	31	 
	SECTION 6.03. JUDGMENT, ORDERS
	 	 	31	 
	SECTION 6.04. LITIGATION
	 	 	31	 
	SECTION 6.05. NOTICE OF BORROWING
	 	 	31	 
	SECTION 6.06. OPINION OF COUNSEL FOR BORROWER
	 	 	31	 
	SECTION 6.07. PAYMENT OF FEES
	 	 	31	 
	SECTION 6.08. ADVERSE CHANGE, ETC.
	 	 	31	 
	SECTION 6.09. EVIDENCE OF INSURANCE
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	31	 
	SECTION 7.01. PAYMENT OF AMOUNTS DUE
	 	 	32	 
	SECTION 7.02. EXISTENCE, BUSINESS, ETC.
	 	 	32	 
	SECTION 7.03. MAINTENANCE OF PROPERTIES
	 	 	32	 
	SECTION 7.04. PAYMENT OF TAXES, ETC.
	 	 	32	 
	SECTION 7.05. FINANCIAL STATEMENTS
	 	 	32	 
	SECTION 7.06. INSPECTION
	 	 	34	 
	SECTION 7.07. ENVIRONMENTAL COMPLIANCE
	 	 	34	 
	SECTION 7.08. ERISA
	 	 	34	 
	SECTION 7.09. INSURANCE
	 	 	35	 
	SECTION 7.10. MONEY OBLIGATIONS
	 	 	36	 
	SECTION 7.11. RECORDS
	 	 	36	 
	SECTION 7.12. FRANCHISES
	 	 	36	 
	SECTION 7.13. NOTICE
	 	 	36	 
	SECTION 7.14. POST CLOSING ITEMS
	 	 	37	 
	SECTION 7.15. FURTHER ASSURANCES; REPLACEMENT NOTES
	 	 	37	 
	SECTION 7.16. NOTICE OF DEFAULT OR LITIGATION
	 	 	37	 
	SECTION 7.17. USE OF PROCEEDS
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	37	 
	SECTION 8.01. PLAN
	 	 	37	 
	SECTION 8.02. COMBINATIONS
	 	 	38	 
	SECTION 8.03. BULK TRANSFERS
	 	 	38	 
	SECTION 8.04. BORROWINGS
	 	 	38	 
	SECTION 8.05. LIENS
	 	 	39	 
	SECTION 8.06. LOANS RECEIVABLE
	 	 	40	 
	SECTION 8.07. GUARANTEES
	 	 	41	 
	SECTION 8.08. AMENDMENT OF ARTICLES OF INCORPORATION AND/OR REGULATIONS
	 	 	42	 
	SECTION 8.09. FISCAL YEAR
	 	 	42	 
	SECTION 8.10. REGULATION U
	 	 	42	 
	SECTION 8.11. NO PLEDGE
	 	 	42	 
	SECTION 8.12. TRANSACTIONS WITH AFFILIATES
	 	 	43	 
	SECTION 8.13. DEBT SERVICE COVERAGE RATIO
	 	 	44	 






(ii)









 






	 	 	 	 	 
	Article	 	Page	 
	SECTION 8.14(A). RESTRICTIONS ON DISTRIBUTIONS DURING AN EVENT OF DEFAULT OTHER THAN A PAYMENT DEFAULT
	 	 	44	 
	SECTION 8.14(B). RESTRICTIONS ON DISTRIBUTIONS DURING A PAYMENT DEFAULT
	 	 	44	 
	SECTION 8.15. CROSS COLLATERALIZATION AND CROSS DEFAULTS
	 	 	44	 
	SECTION 8.16. SENIOR NOTES; 2006 PUTTABLE SENIOR NOTES
	 	 	46	 
	SECTION 8.17. CHANGES IN BUSINESS
	 	 	46	 
	SECTION 8.18. ANTI-TERRORISM LAWS
	 	 	46	 
	 
	 	 	 	 
	ARTICLE IX REPRESENTATIONS AND WARRANTIES
	 	 	46	 
	SECTION 9.01. EXISTENCE
	 	 	46	 
	SECTION 9.02. RIGHT TO ACT
	 	 	47	 
	SECTION 9.03. BINDING EFFECT
	 	 	47	 
	SECTION 9.04. LITIGATION
	 	 	47	 
	SECTION 9.05. EMPLOYEE RETIREMENT INCOME SECURITY ACT
	 	 	47	 
	SECTION 9.06. ENVIRONMENTAL COMPLIANCE
	 	 	47	 
	SECTION 9.07. SOLVENCY
	 	 	48	 
	SECTION 9.08. FINANCIAL STATEMENTS
	 	 	48	 
	SECTION 9.09. DEFAULTS
	 	 	48	 
	SECTION 9.10. OPERATIONS
	 	 	48	 
	SECTION
9.11. TITLE TO PROPERTIES; PATENTS, TRADE MARKS, ETC.
	 	 	48	 
	SECTION 9.12. COMPLIANCE WITH OTHER INSTRUMENTS
	 	 	49	 
	SECTION 9.13. MATERIAL RESTRICTIONS
	 	 	49	 
	SECTION 9.14. CORRECTNESS OF DATA FURNISHED
	 	 	49	 
	SECTION 9.15. TAXES
	 	 	49	 
	SECTION 9.16. COMPLIANCE WITH LAWS
	 	 	50	 
	SECTION
9.17. REGULATION U, ETC.
	 	 	50	 
	SECTION 9.18. [RESERVED]
	 	 	50	 
	SECTION
9.19. SECURITIES ACT, ETC.
	 	 	50	 
	SECTION 9.20. INVESTMENT COMPANY ACT
	 	 	50	 
	SECTION 9.21. INDEBTEDNESS OF SUBSIDIARIES
	 	 	50	 
	SECTION 9.22. GUARANTIES
	 	 	50	 
	SECTION 9.23. INDEBTEDNESS
	 	 	51	 
	SECTION 9.24. ANTI TERRORISM LAW COMPLIANCE
	 	 	51	 
	 
	 	 	 	 
	ARTICLE X EVENTS OF DEFAULT
	 	 	51	 
	SECTION 10.01. PAYMENTS
	 	 	51	 
	SECTION 10.02. COVENANTS
	 	 	51	 
	SECTION 10.03. REPRESENTATIONS AND WARRANTIES
	 	 	51	 
	SECTION 10.04. CROSS DEFAULT
	 	 	51	 
	SECTION 10.05. TERMINATION OF PLAN
	 	 	52	 
	SECTION 10.06. DOMESTIC SUBSIDIARY SOLVENCY
	 	 	52	 
	SECTION 10.07. BORROWER’S SOLVENCY
	 	 	53	 






(iii)









 






	 	 	 	 	 
	Article	 	Page	 
	SECTION 10.08. CHANGE OF OWNERSHIP; CHANGE OF MANAGEMENT EVENT
	 	 	53	 
	SECTION 10.09. JUDGMENTS
	 	 	53	 
	SECTION 10.10. DEFAULT UNDER GUARANTY, SENIOR NOTES OR 2006 PUTTABLE SENIOR NOTES
	 	 	53	 
	SECTION 10.11. DEFAULT UNDER SUBORDINATION AGREEMENT
	 	 	53	 
	 
	 	 	 	 
	ARTICLE XI REMEDIES UPON DEFAULT
	 	 	53	 
	SECTION 11.01. OPTIONAL DEFAULTS
	 	 	54	 
	SECTION 11.02. AUTOMATIC DEFAULTS
	 	 	54	 
	SECTION 11.03. REMEDIES RELATING TO LETTERS OF CREDIT
	 	 	54	 
	SECTION 11.04. OFFSETS
	 	 	54	 
	SECTION 11.05. APPLICATION OF PAYMENTS
	 	 	55	 
	 
	 	 	 	 
	ARTICLE XII THE AGENT
	 	 	55	 
	SECTION 12.01. APPOINTMENT AND AUTHORIZATION
	 	 	55	 
	SECTION 12.02. DELEGATION OF DUTIES
	 	 	55	 
	SECTION 12.03. LIABILITY OF AGENT
	 	 	56	 
	SECTION 12.04. RELIANCE BY AGENT
	 	 	56	 
	SECTION 12.05. RESIGNATION OR REMOVAL OF THE AGENT; SUCCESSOR AGENT
	 	 	57	 
	SECTION 12.06. NOTE HOLDERS
	 	 	57	 
	SECTION 12.07. CONSULTATION WITH COUNSEL
	 	 	57	 
	SECTION 12.08. DOCUMENTS
	 	 	58	 
	SECTION 12.09. KNOWLEDGE OF DEFAULT
	 	 	58	 
	SECTION 12.10. INDEMNIFICATION
	 	 	58	 
	SECTION 12.11. AGENTS IN THEIR INDIVIDUAL CAPACITIES
	 	 	59	 
	SECTION 12.12. EQUALIZATION PROVISION
	 	 	59	 
	SECTION 12.13. NO RELIANCE ON AGENTS’ CUSTOMER IDENTIFICATION PROGRAM
	 	 	60	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS
	 	 	60	 
	SECTION 13.01. NO WAIVER; CUMULATIVE REMEDIES
	 	 	60	 
	SECTION 13.02. AMENDMENTS, CONSENTS
	 	 	60	 
	SECTION 13.03. NOTICES
	 	 	61	 
	SECTION 13.04. COSTS, EXPENSES AND TAXES
	 	 	61	 
	SECTION 13.05. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
	 	 	62	 
	SECTION 13.06. OBLIGATIONS SEVERAL; NO FIDUCIARY OBLIGATIONS
	 	 	62	 
	SECTION 13.07. EXECUTION IN COUNTERPARTS
	 	 	62	 
	SECTION 13.08. BINDING EFFECT; ASSIGNMENT
	 	 	62	 
	SECTION 13.09. INDEMNIFICATION BY THE BORROWER
	 	 	64	 
	SECTION 13.10. GOVERNING LAW
	 	 	64	 
	SECTION 13.11. SEVERABILITY OF PROVISIONS; CAPTIONS
	 	 	64	 
	SECTION 13.12. PURPOSE
	 	 	64	 






(iv)









 






	 	 	 	 	 
	Article	 	Page	 
	SECTION 13.13. CONSENT TO JURISDICTION
	 	 	64	 
	SECTION 13.14. ENTIRE AGREEMENT
	 	 	65	 
	SECTION 13.15. JURY TRIAL WAIVER
	 	 	65	 
	SECTION 13.16. SURVIVAL
	 	 	65	 
	SECTION 13.17. INDEPENDENCE OF COVENANTS
	 	 	65	 
	SECTION 13.18. INTERPRETATION
	 	 	65	 
	SECTION 13.19. GENERAL LIMITATION OF LIABILITY
	 	 	65	 
	SECTION 13.20. USA PATRIOT ACT NOTIFICATION
	 	 	66	 






	 	 	 
	EXHIBITS
	 
	 	 
	A

	 	COMMITMENTS
	B

	 	FORM OF GUARANTY
	C

	 	OUTSTANDING LETTERS OF CREDIT
	D-1

	 	FORM OF REVOLVING LOAN NOTE
	D-2

	 	FORM OF SWING LINE NOTE
	E

	 	FORM OF LETTER OF CREDIT REQUEST
	F

	 	FORM OF NOTICE OF BORROWING
	G

	 	FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
	 
	 	 
	SCHEDULES
	 
	 	 
	2.03

	 	AUTHORIZED FISCAL OFFICERS
	7.14

	 	POST-CLOSING ITEM
	9.00

	 	EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
	9.22

	 	OUTSTANDING GUARANTEES
	9.23

	 	OUTSTANDING INDEBTEDNESS






(v)









 






AMENDED AND RESTATED CREDIT AGREEMENT




     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”), KEYBANK 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. and LASALLE BANK NATIONAL ASSOCIATION, as
Co-Documentation Agents (the “Co-Documentation Agents”).



W
I T N E S S E
T H:




     WHEREAS, the Borrower, the Banks, the Agent, the Syndication Agent and the Co-Documentation
Agents previously entered into a Credit Agreement, dated as of March 22, 2004 (as amended to the
date hereof, the “2004 Credit Agreement”) and



     WHEREAS, the Borrower, the Banks, the Agents and the Co-Documentation Agents desire to amend
and restate the 2004 Credit Agreement in its entirety and the Banks, the Agents and the
Co-Documentation Agents are willing to do so upon the terms and subject to the conditions set forth
herein.



     NOW, THEREFORE, it is mutually agreed as follows:



ARTICLE I

DEFINITIONS




     As used in this Agreement, the following terms shall have the following meanings:



     “Additional Bank” shall mean a financial institution that shall become a Bank hereunder during
the Commitment Increase Period pursuant to Section 5.07(a) hereof.



     “Additional Bank Assumption Agreement” shall mean an assumption agreement in form and
substance satisfactory to the Agent, entered into by any Additional Bank pursuant to Section
5.07(a) hereof, wherein an Additional Bank shall become a Bank hereunder.



     “Additional Bank Assumption Effective Date” shall have the meaning set forth in Section
5.07(a) hereof.



     “Additional Commitments” shall have the meaning set forth in Section 5.07(a) hereof.



     “Advantage” shall mean any payment (whether made voluntarily or involuntarily, by offset of
any deposit or other Indebtedness or otherwise) received by any Bank in respect of the Borrower’s
Debt to the Banks if such payment results in that Bank having a lesser share of the Borrower’s Debt
to the Banks, than was the case immediately before such payment.



-1-









 





     “Affiliate” of any Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person. For purposes of this
definition, “control” when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.



     “Agent” means KeyBank National Association, in its capacity as administrative agent for the
Banks hereunder, and its successors in such capacity.



     “Agents” means collectively, the Agent and the Syndication Agent.



     “Agreement” means this Credit Agreement as the same may be from time to time amended,
supplemented, modified, extended and/or restated.



     “Anti-Terrorism Law” shall mean the USA Patriot Act or any other law pertaining to the
prevention of future acts of terrorism, in each case as such law may be amended from time to time.



     “Authorized Fiscal Officer” shall have the meaning set forth in Section 2.03(b) hereof.



     “Base Rate” shall mean a rate per annum equal to the greater of (a) that interest rate
established from time to time by the Agent at its principal office as the Agent’s prime rate,
whether or not such rate is publicly announced or (b) the Federal Funds Effective Rate plus 1/2 of
1% (.50%) per annum. The prime rate may be other than the lowest interest rate charged by the
Agent for commercial or other extensions of credit.



     “Base Rate Option” means interest determined pursuant to Section 4.01(c) and related
provisions hereof.



     “Board of Directors” shall mean either the board of directors of the Parent or any duly
constituted committee thereof.



     “Borrower” means Forest City Rental Properties Corporation, an Ohio corporation.



     “Capital Stock” of any Person shall mean any and all shares, interests, participations, or
other equivalents (however designated) of corporate stock or other equity participations or
interests including, without limitation, partnership interests, whether general or limited, and
membership interests, whether of managing or non-managing members, of such Person.



     “Change of Management Event” shall be deemed to have occurred at such time as any two (2) of
James A. Ratner, Charles A. Ratner, Ronald A. Ratner and Albert B. Ratner become unable or cease to
hold the respective positions held by such persons on the date of this Agreement, with all the
responsibilities normally associated with such positions, provided, that, no Change of
Management Event shall be deemed to have occurred if within one hundred twenty (120) days the
Borrower shall have obtained the reasonable approval of the Required Banks, in their sole
discretion, of one or more additional executives, such that the remaining and new management
executives as a group, have substantial and sufficient knowledge, experience and



-2-









 




capabilities in the management of a company engaged in the operation of a multi-asset real
estate business of the type engaged in by the Borrower.




     “Change of Ownership Event” shall be deemed to have occurred at such time as either (a) any
Person (other than a Permitted Holder) or any Persons acting together that would constitute a
“group” (a “Group”) for purposes of Section 13(d) of the Exchange Act or any successor provision
thereto (other than Permitted Holders), together with any Affiliates or Related Persons thereof,
shall beneficially own (within the meaning of Rule 13d-3 under the Exchange Act, or any successor
provision thereto) at least 30% of the aggregate voting power of all classes of Voting Stock of the
Parent; or (b) any Person or Group (other than Permitted Holders), together with any Affiliates or
Related Persons thereof, shall succeed in having a sufficient number of its nominees elected to the
Board of Directors of the Parent such that such nominees, when added to any existing director
remaining on the Board of Directors of the Parent after such election who was a nominee of or is an
Affiliate or Related Person of such Person or Group, will constitute a majority of the Board of
Directors of the Parent; or (c) the Permitted Holders referenced in clause (i) of the definition of
“Permitted Holder” shall cease to own at least 51% of the aggregate issued and outstanding shares
of the Voting Stock of the Parent; or (d) the Parent shall cease to own at least one hundred
percent (100%) on a fully diluted basis, of the economic and voting interests of the Borrower.



     “Cleveland Banking Day” shall mean a day on which the main office of the Agent is open for the
transaction of business.



     “Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.



     “Commitment” shall mean the obligation of each Bank, during the applicable Commitment Period,
to make Revolving Loans and to participate in Swing Loans, in an aggregate amount not to exceed the
amount set forth opposite such Bank’s name under the column headed “Maximum Amount” on Exhibit A
attached hereto (as such Exhibit A may be amended or otherwise modified from time to time pursuant
to Section 5.07(a) or Section 13.08(a) hereof), or such lesser amount as shall be determined
pursuant to Section 5.07(b) hereof.



     “Commitment Increase Period” shall mean the period from the Restatement Effective Date to the
day prior to the Termination Date.



     “Commitment Period” shall mean (a) with respect to the Banks other than the Additional Banks,
and with respect to the Restatement Effective Date Commitment Amount, the period from the
Restatement Effective Date until the Termination Date and (b) with respect to each Additional Bank
and each Bank with an Additional Commitment, if any, the period from the Additional Bank Assumption
Effective Date applicable to such Additional Bank or such Bank with an Additional Commitment until
the Termination Date.



     “Common Stock” of any Person shall mean Capital Stock of such Person that does not rank prior,
as to the payment of dividends or as to other amounts upon any voluntary or involuntary
liquidation, dissolution, or winding up of such Person, to shares of Capital Stock or any other
class of stock of such Person.



-3-









 





     “Completion Guaranty” shall mean any guarantee of performance by the Borrower or the Parent,
as applicable, that construction of a real estate project will be completed in accordance with
applicable plans and specifications and that all costs associated with such completion will be
paid, provided, that such costs may include an interest reserve only through completion of
the project and not through stabilization of such project.



     “Consideration” shall have the meaning set forth in the definition of Multi-Asset
Acquisition.



     “Contingent Obligation” shall mean, with respect to any Person at the time of any
determination, without duplication, any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person in
any manner, whether directly or otherwise; provided, that the term “Contingent Obligation”
shall not include endorsements for collection or deposit, in each case in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the Indebtedness in respect of which such Contingent Obligation is
made or, if not stated or determinable, the maximum reasonable anticipated liability in respect
thereof (assuming such Person is required to perform thereunder).



     “Controlled Group” shall mean a controlled group of corporations as defined in Section 1563 of
the Code, of which the Borrower or any Subsidiary of the Borrower is a part.



     “Cross-Collateralize” with respect to any Person, shall mean (a) the granting of a Lien by
such Person on all or a portion of the assets of such Person to secure Indebtedness owing by such
Person to a lender and the granting of a Lien by such Person on the same group of assets to secure
Indebtedness owing by such Person to (i) the same lender under a different agreement, note or other
instrument or (ii) one or more other lenders, or (b) the granting of a Lien by such Person on more
than one asset of such Person to secure Indebtedness owing by such Person to one or more lenders
under one agreement, note or other instrument or (c) the granting of a Lien by such Person on all
or a portion of its assets to secure Indebtedness owing by another Person.



     “Debt” shall mean, collectively, all Indebtedness incurred by the Borrower to the Banks
pursuant to this Agreement, including, but not limited to, the principal of and interest on all
Notes and each extension, renewal or refinancing thereof in whole or in part, the stated amounts of
all letters of credit issued by the Agent or the Banks hereunder, and the fees and any prepayment
premium payable hereunder.



     “Debt Service Coverage Ratio” shall mean, for any Test Period, the ratio of (i) Net Operating
Income to (ii) the sum of (W) all scheduled principal payments (excluding balloon payments) on
non-recourse mortgage Indebtedness of the Borrower and its Subsidiaries, plus (X) all
interest payments on such non-recourse mortgage Indebtedness, minus (Y) non-cash interest
expense accrued but not currently payable, up to a maximum of Five Million Dollars ($5,000,000),
excluding non-cash interest expense accrued with respect to Indebtedness owing by the Borrower and
its Subsidiaries to the government of the United States or any state or municipality thereof or any
agencies of any of the foregoing, minus (Z) non-cash interest expense accrued but not
currently payable solely with respect to Indebtedness owing by the Borrower and its Subsidiaries to
the government of the United States or any state or municipality thereof or any agencies of any of
the foregoing.



-4-









 





     “Distributions” shall have the meaning set forth in Section 8.14A hereof.



     “Dividends” shall mean all dividends (in cash or otherwise) declared and/or paid, capital
returned, and other distributions of any kind made on or in respect of any share of Capital Stock
outstanding at any time.



     “Domestic Subsidiary” shall mean any Subsidiary organized under the laws of any state of the
United States of America which conducts the major portion of its business within the United States.



     “Draw” shall have the meaning set forth in Section 3.01(b) hereof.



     “80% FCCC Loans” shall have the meaning set forth in Section 8.15(b)(viii) hereof.



     “Environmental Laws” shall mean all provisions of law, statutes, ordinances, rules,
regulations, permits, licenses, judgments, writs, injunctions, decrees, orders, awards and
standards promulgated by the government of the United States of America or by any state or
municipality thereof or by any court, agency, instrumentality, regulatory authority or commission
of any of the foregoing, now or hereafter in effect, and in each case as amended, concerning or
relating to health, safety and protection of, or regulation of the discharge of substances into,
the environment.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations and rulings issued thereunder.



     “ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which together
with the Borrower, the Parent or any Subsidiary of the Borrower or any Subsidiary of the Parent
would be deemed a “single employer” within the meaning of Sections 414(b), (c), (m) or (o) of the
Code.



     “Event of Default” shall have the meaning set forth in Article X hereof.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any successor
provision thereto.



     “FCCC” shall mean Forest City Capital Corporation, an Ohio corporation and a wholly-owned
Subsidiary of the Borrower.



     “Federal Funds Effective Rate” shall mean, for any period, a fluctuating interest rate equal
for each day during such period to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Cleveland, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Agent from three federal funds brokers of recognized standing selected by the Agent.



     “Fiscal Quarterly Date” shall mean each of January 31, April 30, July 31 and October 31.



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     “GAAP” shall mean generally accepted accounting principles in the United States of America, in
effect from time to time.



     “Guaranty” means the Amended and Restated Guaranty of Payment of Debt issued by the Parent to
the Agents, the Co-Documentation Agents and the Banks, in substantially the form and substance of
Exhibit B attached hereto, as such Guaranty may be from time to time, amended, restated or
otherwise modified in accordance with the terms of this Agreement and the Guaranty.



     “Guaranty Default” shall mean any one or more of the events constituting defaults under
Section 10 of the Guaranty.



     “Hedge Agreement” shall mean any non-fully paid derivative, such as interest rate swaps or
collar agreements or other similar agreements or arrangements designed to hedge the position of a
Person with respect to interest rates, excluding (a) any such agreements as to which all of the
obligations of such Person are paid or payable within twelve (12) months of the date such agreement
is entered into by such Person and (b) Total Rate of Return Swaps.



     “Indebtedness” shall mean, with respect to any Person at the time of any determination,
without duplication, all obligations of such Person which in accordance with GAAP should be
classified upon the balance sheet of such Person as liabilities, but in any event including: (a)
all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (c) all obligations of such Person upon
which interest charges are customarily paid or accrued, (d) all written obligations of such Person
to maintain working capital, equity capital or other financial statement condition of another
Person so as to enable such other Person to pay its Indebtedness or otherwise to protect the holder
of such Indebtedness against loss in respect thereof, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services, (f) all obligations of others
secured by any Lien on property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all capitalized lease obligations of such Person, (h) all
obligations of such Person in respect of Hedge Agreements and Total Rate of Return Swaps, (i) all
obligations of such Person, actual or contingent, as an account party in respect of letters of
credit or bankers’ acceptances, and, without duplication, all drafts drawn thereunder, and (j) all
obligations of any partnership or joint venture as to which such Person is or may become personally
liable, provided, that, Indebtedness shall not include (i) any obligations incurred as a
result of fraud, misappropriation, misapplication and environmental indemnities, as are usual and
customary in commercial mortgage loan transactions, and (ii) trade payables, deferred revenue,
taxes and accrued expenses, in each case arising in the ordinary course of business and that is due
and payable less than twelve (12) months after the date such debt was incurred.



     “Indenture” shall mean the indenture dated as of May 19, 2003, between the Parent and The Bank
of New York, as indenture trustee and relating to the Senior Notes.



     “Indemnity Agreement” shall mean any indemnity agreement, in form and substance satisfactory
to the Agents and the Banks, by and between the Parent and a Surety, and as each such Indemnity
Agreement may be amended, restated or otherwise modified.



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     “Indicated Spread” shall have the meaning set forth in Section 4.01(d) hereof.



     “Interest Adjustment Date” shall mean the last day of each Interest Period.



     “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 or conversion date of each Loan
subject to the LIBOR Rate Option and on the date that is one London Banking Day after each Interest
Adjustment Date occurring thereafter with respect thereto; 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 prepayment premium 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:




     (i) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last London Banking Day of such calendar month;




     (ii) if any Interest Period would otherwise expire on a day which is not a London
Banking Day, such Interest Period shall expire on the next succeeding London Banking Day,
provided, that if any Interest Period would otherwise expire on a day which is not a
London Banking Day but is a day of the month after which no further London Banking Day
occurs in such month, such Interest Period shall expire on the next preceding London Banking
Day;




     (iii) no Interest Period may be selected at any time that an Event of Default has
occurred and is continuing;




     (iv) no Interest Period may be selected if it would extend beyond the scheduled
maturity date or principal repayment date(s) of the Loans to which it would apply; and




     (v) no Interest Period may be selected if it would extend beyond the Termination Date.



     “Last Libor” shall have the meaning set forth in Section 5.05(b) hereof.



     “LC Obligations” shall mean the aggregate amount of all possible drawings under all letters of
credit issued pursuant to Section 3.01 hereof and all letters of credit identified on Schedule 3.01
hereof (which are letters of credit issued under the 2004 Credit Agreement that remain outstanding
on the date hereof), plus all amounts drawn under any of such letters of credit and not reimbursed.



     “LIBOR” shall mean the average (rounded upward to the nearest 1/16th of 1%) of the per annum
rates at which deposits in immediately available funds in United States dollars for the relevant
Interest Period and in the amount of the principal of the Loans to be disbursed or to remain
outstanding during such Interest Period, as the case may be, are offered to the Reference Banks by
prime banks in any Eurodollar market reasonably selected by the Reference Banks,



-7-









 




determined as of 11:00 a.m. London time (or as soon thereafter as practicable), two (2) London
Banking Days prior to the beginning of the relevant Interest Period. In the event one or more of
the Reference Banks fail to furnish its quote of any rate required herein, such rate shall be
determined on the basis of the quote or quotes of the remaining Reference Bank or Banks.




     “LIBOR Rate Option” means interest determined pursuant to Section 4.01(b) and related
provisions hereof.



     “Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge of any
kind (including any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under the Uniform
Commercial Code or any similar notice or recording statute, and any lease having substantially the
same effect as any of the foregoing).



     “Loan” means a Revolving Loan or a Swing Loan.



     “London Banking Day” shall mean a day on which banks are open for business in London, England,
and quoting deposit rates for dollar deposits.



     “Mandatory Request” shall have the meaning set forth in Section 2.07(b) hereof.



     “Material Adverse Effect” shall mean (a) a material adverse effect on the business, property,
assets, liabilities, or condition (financial or otherwise) of the Borrower or the Parent or (b) a
material adverse effect on the rights or remedies of the Banks or the Agents, or on the ability of
the Borrower or the Parent to perform its respective obligations to the Banks or the Agents under
this Agreement, the Notes, the Guaranty or the Related Writings.



     “Maximum Swing Line Amount” shall mean Forty Million Dollars ($40,000,000).



     “Measured Credit Risk” shall mean the product of (i) the notional amount of a Hedge Agreement
entered into or guaranteed by the Parent, the Borrower, FCCC, or any other Subsidiary of the
Borrower (other than a SPE Subsidiary) in each case with any Person other than a Bank that has a
remaining period to maturity of greater than twelve (12) months, times (ii) the number of years
remaining to maturity of such Hedge Agreement, times (iii) 1.25%.



     “Multi-Asset Acquisition” shall mean any transaction or series of related transactions entered
into by one or more Subsidiaries of the Borrower for the purpose of or resulting, directly or
indirectly, in (i) the acquisition of all or substantially all of the assets of any Person, or any
business unit or division of any Person, or two or more unrelated assets of any Person (that is,
assets other than those consisting of a single identifiable project) (in each case other than an
Affiliate of the Borrower), (ii) the acquisition of in excess of 50% of the stock (or other equity
interest) of any Person, or (iii) the acquisition of another Person by a merger or consolidation or
any other combination with such Person; where the total Consideration paid by any such Subsidiary
in each such acquisition (or series of related acquisitions) does not exceed $200,000,000 and where
the aggregate of the Consideration paid by all Subsidiaries of the Borrower in all such
acquisitions does not exceed $800,000,000. For purposes of this definition, “Consideration” shall
mean all consideration paid by the acquiring Subsidiary, including all



-8-









 




borrowed funds, cash, the issuance of securities or notes and the assumption or incurring of
liabilities (direct and contingent).




     “Net Operating Income” shall mean for any relevant period, the excess of the Borrower’s
revenues over the Borrower’s operating expenses, in each case, as determined in accordance with the
Pro Rata Consolidation Method. For purposes of this definition, 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 net outlot parcels to a total maximum aggregate amount of
$20,000,000 for the immediately preceding four consecutive quarters and (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.



     “Non-Affiliate Construction Project” shall mean any real property and all improvements to be
constructed thereon (collectively, the “Non-Affiliate Property”) (a) with respect to which the
Borrower or a Subsidiary of the Borrower, as the case may be, (i) may make a Permitted
Non-Affiliate Loan, and (ii) is the developer pursuant to an agreement with a Non-Affiliated Entity
as owner of the Non-Affiliate Property; and (b) with respect to which the Borrower or an Affiliate
of the Borrower, as the case may be, holds an irrevocable option from either the Non-Affiliated
Entity or the parent of the Non-Affiliated Entity to acquire, respectively, either (i) the
Non-Affiliate Property, or (ii) all of the equity interests in and to such Non-Affiliated Entity
owned by the parent of the Non-Affiliated Entity.



     “Non-Affiliated Entity” shall mean any Person that is not an Affiliate of the Borrower and
that is wholly-owned by another Person.



     “Note” or “Notes” shall mean (a) a Revolving Loan Note or (b) a Swing Line Note, as the
context may require.



     “Notice of Borrowing” shall have the meaning set forth in Section 5.01(a) hereof.



     “Parent” means Forest City Enterprises, Inc., an Ohio corporation.



     “Payment Default” shall mean any failure by the Borrower or the Parent to make payment of
principal, interest, or any other fees or expenses due, whether at maturity or by acceleration,
under this Agreement or the Guaranty.



     “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of
ERISA, or any successor thereto.



     “Permitted Debt” shall have the meaning set forth in Section 8.04 hereof.



     “Permitted Distributions” shall have the meaning set forth in Section 8.14A hereof.



     “Permitted Holder” shall mean (i) any of Samuel H. Miller, Albert B. Ratner, Charles A.
Ratner, James A. Ratner, Ronald A. Ratner or any spouse of any of the foregoing, and any trusts for
the benefit of any of the foregoing, (ii) RMS Limited Partnership and any general partner or
limited partner thereof and any Person (other than a creditor) that upon the dissolution



-9-









 




or winding up of RMS Limited Partnership receives a distribution of Capital Stock of the
Parent, (iii) any group (as defined in Section 13(d) of the Exchange Act) of two or more Persons or
entities that are specified in the immediately preceding clauses (i) and (ii), and (iv) any
successive recombination of the Persons or groups that are specified in the immediately preceding
clauses (i), (ii) and (iii).




     “Permitted Non-Affiliate Loan” shall mean a loan by the Borrower or any Subsidiary of the
Borrower to a Non-Affiliated Entity for the purposes of (a) purchasing or otherwise acquiring a
Non-Affiliate Property or (b) paying construction costs, in each case, in connection with a
Non-Affiliate Construction Project.



     “Permitted Non-Affiliate Loan Reserve” shall mean, as of any date of determination, an amount
equal to (a) twenty percent (20%) multiplied by (b) the amount, if any, by which the aggregate
amount of gain deferred for federal income tax purposes on the consolidated return of the Parent
and its Subsidiaries in connection with all Non-Affiliate Construction Projects, for the three year
period ending on such determination date, exceeds Seventy-Five Million Dollars ($75,000,000).



     “Person” means an individual, a corporation, a limited liability company, a partnership, an
association, a trust or any other entity or organization, including, without limitation,
governmental or political subdivision or an agency or instrumentality thereof.



     “Plan” shall mean any employee pension benefit plan subject to Title IV of ERISA, established
or maintained by the Borrower, any Subsidiary, or any member of the Controlled Group, or any such
Plan to which the Borrower, any Subsidiary, or any member of the Controlled Group is required to
contribute on behalf of any of its employees.



     “Pledged Subsidiary” shall have the meaning set forth in Section 8.11(a) hereof.



     “Possible Default” shall mean any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.



     “Post Closing Items” shall have the meaning set forth in Section 7.14 hereof.



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



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



     “Pro rata” when used with reference to the Banks means (unless the context otherwise clearly
indicates) pro rata according to the unpaid principal amounts owing to the respective Banks under
the Notes, or, if no principal is then owing to any Bank, according to the Commitment of the
respective Bank.



     “Pro Rata Consolidation Method” shall mean the pro rata method of consolidation as opposed to
the full consolidation method of accounting.



-10-









 





     “Puttable Note Hedge and Warrant Transactions” shall mean the purchased call option and
warrant transactions that may be entered into from time to time by the Parent with respect to its
common stock, in connection with the 2006 Puttable Senior Notes.



     “Reference Banks” shall mean KeyBank National Association and National City Bank.



     “Regulatory Change” shall mean, as to any Bank, any change in federal, state or foreign laws
or regulations or the adoption or making of any interpretations, directives or requests of or under
any federal, state or foreign laws or regulations (whether or not having the force of law) by any
court or governmental authority charged with the interpretation or administration thereof.



     “Related Person” of any Person shall mean any other Person directly or indirectly owning (a)
5% or more of the outstanding Common Stock of any class of such Person (or, in the case of a Person
that is not a corporation, 5% or more of the equity interest in such Person), or (b) 5% or more of
the combined voting power of the Voting Stock of such Person.



     “Related Writing” shall mean any Note, assignment, mortgage, security agreement, Subordination
Agreement, guaranty agreement, financial statement, audit report, officer’s certificate or other
writing furnished by the Borrower, the Parent or any of their respective officers to the Agents or
the Banks pursuant to or otherwise in connection with this Agreement, including, but not limited
to, the Guaranty.



     “Reportable Event” shall mean a reportable event as that term is defined in Title IV of ERISA
with respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC.



     “Required Banks” means, at any time, Banks having at least 66 2/3% of the Total Revolving Loan
Commitments or, if the Total Revolving Loan Commitments shall have been terminated, Banks holding
Notes evidencing at least 66 2/3% of the aggregate unpaid principal amount outstanding under the
Notes (other than the Swing Line Notes).



     “Restatement Effective Date” shall mean the date on which all conditions precedent set forth
in Article VI are satisfied or waived by the Agent and the Required Banks.



     “Restatement Effective Date Commitment Amount” shall mean $600,000,000.



     “Revolving Credit Exposure” shall mean, at any time, the sum of (a) the aggregate principal
amount of all Revolving Loans outstanding, (b) the Swing Line Exposure and (c) the LC Obligations
outstanding.



     “Revolving Loan Note” shall mean a note or notes substantially in the form of Exhibit D-1
attached hereto, executed and delivered by the Borrower pursuant to Section 2.05, 5.07(a) or 13.08
hereof, as applicable, and as each such Note may be, from time to time, amended, restated or
otherwise modified and all replacements therefor.



     “Revolving Loans” shall have the meaning set forth in Section 2.03(a).



     “Satisfaction Date” shall have the meaning set forth in Section 7.14 hereof.



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     “Senior Notes” shall mean the 2003 Senior Notes, the 2004 Senior Notes and the 2005 Senior
Notes.



     “Senior Officer” shall mean the chief executive officer, president or chief financial officer
of either the Parent or the Borrower, as applicable.



     “SPE Subsidiary” means a Subsidiary of the Borrower whose sole assets consist of contiguous
parcels of land, the improvements, if any, thereon, fixtures and other equipment used in connection
therewith, receivables arising from tenants in connection therewith and the proceeds of such
receivables and other property directly obtained from the ownership of such assets.



     “Subordination Agreement” means any subordination agreement in form and substance satisfactory
to the Agents and the Banks entered into by a Surety in favor of the Agent for the benefit of the
Banks, and as each such Subordination Agreement may, from time to time, be amended, restated or
otherwise modified.



     “Subsidiary” of any Person shall mean and include (i) any corporation more than fifty percent
(50%) of whose stock of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation is at the time owned by such Person directly
or indirectly through Subsidiaries, (ii) any partnership, limited liability company, association
(including business trusts) or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a fifty percent (50%) voting or equity interest at the time and (iii)
any corporation, limited liability company, partnership, association or other entity the accounts
of which are consolidated with those of its parent in the parent’s consolidated financial
statements.



     “Super Majority Banks” shall have the meaning set forth in Section 13.02 hereof.



     “Surety” means any surety or insurance company reasonably acceptable to the Agents.



     “Surety Bonds” means the bonds, undertakings and other like obligations executed by a Surety
for the Parent subject to an Indemnity Agreement and a Subordination Agreement, in a maximum
aggregate principal amount of $30,000,000 for all Sureties, provided, that this definition
shall not include Performance Surety Bonds as defined in the Guaranty.



     “Swing Line” shall mean the credit facility established by the Swing Line Lenders for the
Borrower in accordance with Section 2.07 hereof.



     “Swing Line Commitment” shall mean the commitment of each Swing Line Lender to make Swing
Loans to the Borrower, on an equal basis, up to the Maximum Swing Line Amount.



     “Swing Line Exposure” shall mean, at any time, the aggregate principal amount of all Swing
Loans outstanding.



     “Swing Line Lenders” shall mean KeyBank National and National City Bank, as the holders of the
Swing Line Commitment.



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     “Swing Line Note” shall mean a note or notes substantially in the form of Exhibit D-2 attached
hereto, executed and delivered by the Borrower pursuant to Section 2.07(d) hereof, and as each such
note may be, from time to time, amended, restated or otherwise modified and replacements therefor.



     “Swing Loan” shall mean a loan granted to the Borrower by the Swing Line Lenders under the
Swing Line.



     “Swing Loan Maturity Date” shall mean, with respect to any Swing Loan, the earlier of (a)
three Cleveland Banking Days after the date such Swing Loan is made or (b) the Termination Date.



     “Syndication Agent” means National City Bank, in its capacity as syndication agent for the
Banks hereunder, and its successors in such capacity.



     “Termination Date” means March 31, 2010, unless extended by the Banks pursuant to Section 5.08
of this Agreement, in which case the Termination Date shall be the date of the expiration of any
such extension, or, if terminated earlier pursuant to Article XI of this Agreement, the Termination
Date shall be the date of such earlier termination.



     “Test Period” shall mean each period of four consecutive fiscal quarters of the Parent or the
Borrower, as applicable, in each case taken as one accounting period ended after the Restatement
Effective Date.



     “Total Rate of Return Swap” shall mean a bilateral financial contract between a total rate of
return payer (the legal owner of the reference asset) and a total rate of return receiver where the
total rate of return payer pays the total return of a reference asset and receives a specified
fixed or floating cash flow from the total rate of return receiver.



     “Total Revolving Loan Commitments” shall mean, as of any date of determination, the sum of the
Commitments of each of the Banks.



     “2002 Credit Agreement” shall mean that certain Credit Agreement, dated as of March 5, 2002,
as amended, by and among the Borrower, KeyBank National Association, National City Bank, The
Huntington National Bank, First Merit Bank, Credit Lyonnais, Manufacturers and Traders Trust
Company, U.S. Bank National Association, Fifth Third Bank, Fleet National Bank, LaSalle Bank, N.A.
and The Provident Bank.



     “2003 Senior Notes” shall mean the senior notes of the Parent issued on May 19, 2003, pursuant
to the Indenture, in an original aggregate principal amount of $300,000,000.



     “2004 Credit Agreement” shall have the meaning set forth in the recitals hereto.



     “2004 Senior Notes” shall mean the senior notes of the Parent issued on February 10, 2004,
pursuant to the Indenture, in an aggregate principal amount of up to $100,000,000.



     “2005 Senior Notes” shall mean the senior notes of the Parent issued on or about January 25,
2005, pursuant to the Indenture, in an original aggregate principal amount of up to $150,000,000.



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     “2006 Indenture” shall mean the indenture dated as of October 10, 2006, between the Parent and
The Bank of New York Trust Company, N.A., as indenture trustee, relating to the 2006 Puttable
Senior Notes.



     “2006 Puttable Senior Notes” shall mean the puttable equity-linked senior notes of the Parent
issued on or about October 10, 2006, pursuant to the 2006 Indenture, in an original aggregate
principal amount of up to $287,500,000.



     “Unfunded Current Liabilities” of any Plan shall mean the amount, if any, by which the
actuarial present value of the accumulated plan benefits under the Plan as of the close of its most
recent plan year, determined in accordance with Statement of Financial Accounting Standards No. 35,
based upon the actuarial assumptions used by the Plan’s actuary in the most recent annual valuation
of the Plan, exceeds the fair market value of the assets allocable thereto, determined in
accordance with Section 412 of the Code.



     “USA Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act).



     “Voting Stock” of any Person shall mean Capital Stock of such Person which ordinarily has
voting power for the election of directors (or persons performing similar functions) of such
Person, whether at all times or only so long as no senior class of securities has such voting power
by reason of any contingency.



     The foregoing definitions shall be applicable to the singular and plurals of the foregoing
defined terms.



Accounting Principles




     Any accounting term not specifically defined in this Article I or elsewhere in the Agreement,
shall have the meaning ascribed thereto by GAAP not inconsistent with the Borrower’s present
accounting procedures, provided, that, if the Borrower notifies the Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring after
the Restatement Effective Date in GAAP or in the application thereof on the operation of such
provision (or if the Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended in accordance
herewith. Notwithstanding the foregoing, the financial statements to be furnished to the Banks
pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout
the periods involved (except as set forth in the notes thereto or otherwise disclosed in writing by
the Borrower to the Banks), provided, that (a) all computations determining compliance with
Section 8.13, including definitions used therein, shall utilize accounting principles based on the
Pro Rata Consolidation Method as opposed to the full consolidation method of accounting, (b) all
computations determining compliance with Article VIII, including definitions used therein, shall
exclude interest income received by the Borrower or any of its Subsidiaries with respect to loans
made by the Borrower or such Subsidiary pursuant to Section 8.06(d) of this Agreement, unless such
loans are funded



-14-









 




with the proceeds from Revolving Loans or the Senior Notes and (c) such financial statements
must also include a report (in the footnotes thereto or otherwise) of the financial results of the
Borrower using accounting principles based on the Pro Rata Consolidation Method.




ARTICLE II

REVOLVING LOANS




     The Banks hereby establish a revolving loan facility pursuant to which Revolving Loans will be
made to the Borrower, on and subject to the terms and conditions set forth in this Agreement.



     SECTION 2.01. AMOUNT OF THE REVOLVING LOAN FACILITY. The aggregate principal amount of
the Revolving Loans plus the LC Obligations outstanding from time to time plus the Swing Line
Exposure shall not exceed the Total Revolving Loan Commitments in effect at the time. No Bank
shall be obligated to make any Revolving Loans, Swing Loans or issue any letter of credit if, after
giving effect to such Revolving Loans, Swing Loans or LC Obligations, (a) such Bank’s Pro rata
share of all Revolving Loans, Swing Loans and LC Obligations then outstanding would exceed such
Bank’s Commitment or (b) the aggregate amount of all Revolving Loans, Swing Loans and LC
Obligations then outstanding plus the Permitted Non-Affiliate Loan Reserve would exceed the Total
Revolving Loan Commitments in effect at the time.



     SECTION 2.02. REVOLVING LOAN COMMITMENTS. All Revolving Loans under this Agreement shall
be made by the Banks Pro rata on the basis of their Pro rata share of the Total Revolving Loan
Commitments. It is understood that no Bank shall be responsible for any default by any other Bank
of its obligation to make Revolving Loans hereunder and that each Bank shall be obligated to make
the Revolving Loans to be made by it hereunder, regardless of the failure of any other Bank to
fulfill its commitments hereunder.



     SECTION 2.03. REVOLVING LOANS. (a) Each Bank severally agrees, subject to the
fulfillment of the terms and conditions of this Agreement, to make revolving loans (the “Revolving
Loans”) to the Borrower from time to time during the applicable Commitment Period. Subject to the
provisions of this Agreement, Loans may be repaid in whole or in part, and amounts so repaid may be
reborrowed, but in no event shall the aggregate principal amount of each Bank’s Revolving Loans
plus such Bank’s Pro rata share of the LC Obligations and outstanding Swing Loans (if a participant
in Swing Loans pursuant to Section 2.07(c) hereof) exceed at any time the then Commitment of such
Bank.



     (b) The requesting of a Loan in and of itself pursuant to a Notice of Borrowing constitutes a
representation and warranty by the Borrower to the Banks and the Agents that the conditions
specified in Section 5.01 hereof have been satisfied. Each oral request for a Revolving Loan
(which request shall be promptly confirmed in writing as specified in Section 5.01 hereof) shall be
made by a person authorized by the Borrower to do so and designated on Schedule 2.03, or as that
Schedule may be amended from time to time in writing by the Borrower (each an “Authorized Fiscal
Officer”), and the making of a Revolving Loan as
provided herein shall conclusively establish the Borrower’s obligation to repay such Revolving
Loan.



-15-









 





     (c) Immediately prior to the effectiveness of this Agreement, the outstanding principal
balance of “Revolving Loans” under the 2004 Credit Agreement is $218,000,0000 and shall be deemed
to be, and hereby is converted into, outstanding Revolving Loans hereunder.



     SECTION 2.04. PURPOSE OF THE REVOLVING LOANS. The proceeds of Revolving Loans shall be
used by the Borrower to refinance existing Indebtedness, support ongoing projects, purchase real
estate and for working capital purposes of the Borrower.



     SECTION 2.05. REVOLVING LOAN NOTES. (a) On the Restatement Effective Date, the Borrower
shall execute and deliver to each of the Banks a Revolving Loan Note with all blanks appropriately
completed in conformity herewith.



     (b) On each applicable Additional Bank Assumption Effective Date, the Borrower shall execute
and deliver to each Additional Bank, a Revolving Loan Note with all blanks appropriately completed
in conformity herewith.



     (c) The Revolving Loan Note issued to each Bank shall (i) be executed by the Borrower, (ii) be
payable to the order of (A) such Bank and dated as of the Restatement Effective Date or (B) to an
Additional Bank and dated as of the Additional Bank Assumption Effective Date applicable to such
Additional Bank or (C) to a Bank with an Additional Commitment and dated as of the Additional Bank
Assumption Effective Date applicable to such Bank with an Additional Commitment, in each case, as
applicable, (iii) be in a stated principal amount equal to the Commitment of such Bank and payable
in the principal amount of the Revolving Loans evidenced thereby, (iv) mature on the Termination
Date and (v) be entitled to the benefits of this Agreement and the other Related Writings. The
Revolving Loan Notes shall be subject to the terms of this Agreement.



     (d) All Revolving Loan Notes issued under the 2004 Credit Agreement shall be deemed canceled
as of the Restatement Effective Date and each Person party to the 2004 Credit Agreement in
possession of a Revolving Loan Note issued thereunder shall promptly after the Restatement
Effective Date return such Revolving Loan Note to the Borrower for cancellation.



     SECTION 2.06. REPAYMENT OF THE REVOLVING LOAN NOTES. The principal of the Revolving Loan
Notes evidencing the Revolving Loans shall be due and payable in full on the Termination Date,
unless such principal sums shall become due earlier in whole or in part by reason of the principal
amount exceeding the Total Revolving Loan Commitments at any time in effect or pursuant to the
provisions of Article XI hereof.



     SECTION 2.07 SWING LOANS. (a) Subject to and upon the terms and conditions of this
Agreement, during the Commitment Period, each Swing Line Lender agrees to make a Swing Loan or
Swing Loans to the Borrower
in an amount equal to one-half (1/2) of the amount or amounts as the Borrower may from time to time
request; provided, that the Borrower shall not request any Swing Loan if, after giving
effect thereto (i) the aggregate outstanding principal amount of all Revolving Loans plus the Swing
Line Exposure plus the LC Obligations then outstanding plus the Permitted Non-Affiliate Loan
Reserve would exceed the Total Revolving Loan Commitments then in effect or (ii) the Swing Line
Exposure would exceed the Maximum Swing Line Amount. Each Swing Loan shall bear interest at a per
annum rate equal to the Federal Funds Effective Rate plus 195 basis points (for each day elapsed)
and shall be due and



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payable on the Swing Loan Maturity Date applicable thereto. The Borrower
shall not request that more than one (1) Swing Loan to each Swing Line Lender be outstanding at any
time.




     (b) On any Cleveland Banking Day, the Swing Line Lenders may, in their sole discretion, give
notice to the Banks and the Borrower that one or more of their outstanding Swing Loans shall be
refinanced as a Revolving Loan; provided, that (i) each such notice shall be deemed to have
been automatically given upon the occurrence of an Event of Default under Section 10.06 or 10.07
hereof or upon the exercise of any of the remedies provided in Section 11.01(b) or 11.02(b) hereof
and (ii) no Swing Line Lender shall make such request without the other Swing Line Lender joining
in such request. Such Revolving Loan initially shall bear interest based on the Base Rate Option.
On the Cleveland Banking Day immediately following the date such notice has been given (or deemed
given), the Borrower shall be deemed to have requested (the “Mandatory Request”) a Revolving Loan
in the aggregate principal amount of the Swing Loans of each Swing Line Lender in accordance with
Section 5.01 hereof (other than the requirement set forth in Section 5.01(a)(i)). Each Bank agrees
to make a Revolving Loan in an amount equal to its Pro rata share of such Revolving Loan on the
date of the Mandatory Request, subject to no conditions precedent whatsoever. Each Bank
acknowledges and irrevocably agrees that such Bank’s obligation to make a Revolving Loan when
required by this Section 2.07(b) is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, the occurrence and continuance of a Possible
Default or Event of Default or whether or not the agreements and conditions of Article V are then
satisfied and that its payment to the Agent, for the respective accounts of the Swing Line Lenders,
of the proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not such Bank’s Commitment shall
have been reduced or terminated. The Borrower irrevocably authorizes and instructs the Agent to
apply the proceeds of any borrowing pursuant to this Section 2.07(b) to repay in full such Swing
Loans.



     (c) If, for any reason, the Agent is unable to or, in the opinion of the Agent, it is
impracticable to, convert any Swing Loan to a Revolving Loan pursuant to the preceding Section
2.07(b), then on any day that a Swing Loan is outstanding (whether before or after the maturity
thereof), the Agent shall have the right to request that each Bank purchase a participation in such
Swing Loan, and the Agent shall promptly notify each Bank thereof (by facsimile or telephone,
confirmed in writing). Upon such notice, but without further action being necessary or required,
each Swing Line Lender hereby agrees to grant to each Bank and each Bank hereby agrees to acquire
from each Swing Line Lender, an individual participation interest in each Swing Loan in an amount
equal to such Bank’s Pro rata share of the principal amount of such Swing Loan. In consideration
and in furtherance of the foregoing, each Bank hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Agent, for the
benefit of each Swing Line Lender, such Bank’s Pro rata share of such Swing Loan. Each Bank
acknowledges and agrees that its obligation to acquire participations in Swing Loans pursuant to
this Section 2.07(c) is absolute and unconditional, and shall not be affected by any circumstance
whatsoever, including without limitation, the occurrence and continuance of a Possible Default or
Event of Default or whether or not the agreements and conditions of Article V are then satisfied
and that each such payment shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever and whether or not such Bank’s Commitment shall have been
reduced or terminated. Each Bank shall comply with its obligation under this



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Section 2.07(c) by
wire transfer of immediately available funds, in the same manner as provided in Section 5.02 hereof
with respect to Revolving Loans to be made by such Bank.




     (d) On the Restatement Effective Date, the Borrower shall execute and deliver to each Swing
Line Lender, a Swing Line Note with all blanks appropriately completed in conformity herewith. The
Swing Line Note issued to each Swing Line Lender shall (i) be executed by the Borrower, (ii) be
payable to the order of such Swing Line Lender and dated as of the Restatement Effective Date,
(iii) be in a stated principal amount equal to the Swing Line Commitment of such Swing Line Lender
and payable in the principal amount of the Swing Loans evidenced thereby and (iv) be entitled to
the benefits of this Agreement and the other Related Writings. The Swing Line Notes shall be
subject to the terms of this Agreement.



     (e) The proceeds of Swing Loans shall be used by the Borrower for general working capital
purposes of the Borrower.



     (f) All Swing Loans outstanding under the 2004 Credit Agreement that remain unpaid on the
Restatement Effective Date shall be paid in full on the Restatement Effective Date.



     (g) All Swing Line Notes issued under the 2004 Credit Agreement shall be deemed canceled as of
the Restatement Effective Date and each Person party to the 2004 Credit Agreement in possession of
a Swing Line Note issued thereunder shall promptly after the Restatement Effective Date return such
Swing Line Note to the Borrower for cancellation.



ARTICLE III

LETTERS OF CREDIT




     SECTION 3.01. LETTERS OF CREDIT. (a) The Banks agree to make available to the Borrower
letters of credit, issued by the Agent, pursuant to their respective Commitments up to an aggregate
amount at any one time outstanding of $100,000,000 minus the aggregate principal amount of
all then outstanding Surety Bonds issued by a Surety on behalf of the Parent pursuant to an
Indemnity Agreement. The availability of letters of credit will be subject to (i) the Agent being
satisfied with the terms of the letter of credit, (ii) the Borrower’s executing and delivering such
letter of credit and reimbursement agreements and related documents as required by the Agent, and
(iii) the satisfaction of all conditions to the Borrower obtaining a Loan in the amount of the
requested letter of credit. 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 Pro rata to the Banks. In addition, the Borrower shall pay
to the Agent upon issuance of each letter of credit provided for under this Section 3.01 an
issuance fee of $500 for the Agent’s services in issuing the letter of credit. No letter of credit
shall be issued having an expiration date after the Termination Date. All letters of credit shall
be in such form and substance as the Agent, the Banks and the Borrower agree. The Borrower shall
not be entitled to obtain letters of credit from the Agent unless the Borrower is then entitled to
obtain Loans from the Banks in an amount not less than the stated amount of the letter of credit
requested, the other conditions of Section 5.03 of this Agreement have been satisfied as if the
Borrower was obtaining a Revolving Loan and the Borrower has executed and



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delivered such letter of
credit, reimbursement agreements and other related documents as may be required by the Agent.




     (b) In the event the Agent pays any amount under or on account of a letter of credit (the
payment by the Agent under or on account of a letter of credit being herein called a “Draw”), a
Revolving Loan shall be deemed to be made to the Borrower by each Bank to the extent of its Pro
rata share of the Total Revolving Loan Commitments to reimburse immediately the Agent for the
amount of the Draw. The Agent shall notify each Bank of the occurrence and payment of a Draw no
later than 12:00 p.m. (Cleveland time) on the date of such notice and, not later than 1:00 p.m.
(Cleveland time) on the date of such notice, each Bank will make available to the Agent its Pro
rata portion of the Draw deemed to be a Revolving Loan. All amounts shall be made available to the
Agent in U.S. Dollars and immediately available funds at its office listed on the signature pages
hereto. If such corresponding Pro rata amount is not in fact made available to the Agent by such
Bank the Agent shall be entitled to recover such corresponding amount from such Bank. If such Bank
does not pay such corresponding amount forthwith upon the Agent’s demand therefor, the Agent shall
promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to
the Agent. 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 made available by the Agent to the Borrower 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 then applicable rate of
interest, calculated in accordance with Article IV, for the Revolving Loans. In the event no
Revolving Loan or only a partial Revolving Loan is deemed to be made, the Agent is hereby
authorized to charge (without prior notice to the Borrower) the amount of each Draw, together with
interest thereon, against any account of the Borrower maintained with the Agent.



     (c) So long as letters of credit are outstanding, the amount of Revolving Loans that the
Borrower is entitled to obtain under Article II shall be reduced by the LC Obligations then
outstanding and, in addition to otherwise constituting part of the Revolving Loans, except as
otherwise expressly stated herein, the stated amount of the letters of credit shall be treated as
principal of the Revolving Loans.



     (d) Whenever the Borrower desires that a letter of credit be issued, the Borrower shall give
the Agent written notice (including by way of facsimile transmission) thereof prior to 1:00 p.m.
(Cleveland time) at least five Cleveland Banking Days (or such shorter period as may be acceptable
to the Agent) prior to the proposed date of issuance (which shall be a Cleveland
Banking Day), which written notice shall be in the form of Exhibit E hereto (each, a “Letter
of Credit Request”). Each Letter of Credit Request shall include an application for such letter of
credit and any other documents that the Agent customarily requires in connection therewith. The
Agent shall promptly notify each Bank of each Letter of Credit Request.



     (e) The delivery of each Letter of Credit Request shall be deemed a representation and
warranty by the Borrower that such letter of credit as requested in such Letter of Credit Request
may be issued in accordance with and will not violate the requirements of this Section 3.01 and
shall include a representation and warranty as to the aggregate principal amount of all then
outstanding Surety Bonds. The Agent shall, on the date of each issuance of or



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amendment or
modification to a letter of credit by it, give each Bank and the Borrower written notice of the
issuance of or amendment or modification to such letter of credit.




     (f) In determining whether to pay under any letter of credit, the Agent shall not have any
obligation relative to the Banks other than to determine that any documents required to be
delivered under such letter of credit have been delivered and that they appear to comply on their
face with the requirements of the letter of credit. Any action taken or omitted to be taken by the
Agent with respect to a letter of credit issued by it if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create any resulting liability for the Agent.



     (g) Immediately prior to the effectiveness of this Agreement, the outstanding letters of
credit issued under the 2002 Credit Agreement and/or the 2004 Credit Agreement are as listed on
Exhibit C hereto and such letters of credit shall be deemed to be, and hereby are converted into,
outstanding letters of credit hereunder.



ARTICLE IV

INTEREST ON THE REVOLVING LOANS




     SECTION 4.01(a). INTEREST OPTIONS. The Borrower shall pay interest on the Revolving Loans
at the rates in effect from time to time pursuant to the Interest Options provided for in Sections
4.01(b) and 4.01(c) as selected by the Borrower or otherwise in effect from time to time in
accordance with the terms and conditions of this Agreement. Interest on the Revolving Loans shall
accrue from and including the date of borrowing thereof to but excluding the date of repayment
thereof.



     SECTION 4.01(b). LIBOR RATE OPTION. Interest on the principal amount of each Revolving
Loan at any time subject to the interest rate option provided for pursuant to this Section 4.01(b)
(the “LIBOR Rate Option”) shall be at a rate determined by adding the applicable LIBOR rate at the
time in effect for each Interest Period for such Revolving Loan and the applicable Indicated Spread
for the LIBOR Rate Option set forth in Section 4.01(d) below. The LIBOR Rate Option shall be in
effect for all portions of the principal of the Revolving Loans for which the Borrower has selected
an Interest Period in accordance with Section 4.02 hereof, unless and until any event or
circumstance provided for in Sections 4.09 or 4.10 hereof shall have occurred and continue to be in
effect or an Event of Default has occurred and is continuing.



     SECTION 4.01(c). BASE RATE OPTION. Interest on the principal amount of all Revolving
Loans at any time subject to the interest rate option provided for pursuant to this Section 4.01(c)
(the “Base Rate Option”) shall be at rates determined by adding the Base Rate in effect from time
to time and the applicable Indicated Spread for the Base Rate Option set forth in Section 4.01(d)
below. The interest rate in effect under the Base Rate Option shall change automatically and
immediately with each change in the Base Rate. The Base Rate Option shall be in effect for all
portions of the principal of the Revolving Loans for which the LIBOR Rate Option is not in effect
at any time.



     SECTION 4.01(d). INDICATED SPREAD. The Indicated Spread is measured in basis points and
from and including the Restatement Effective Date to the Termination Date, shall be 50 basis points
for the Base Rate Option and 145 basis points for the LIBOR Rate Option.



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     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 two
(2) 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) Interest Periods in effect including any Revolving Loans subject to the Base
Rate Option. The principal amount subject to each Interest Period shall be deemed distributed Pro
rata among the Banks 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.



     SECTION 4.03. INTEREST PAYMENT DATES. (a) Interest on all Revolving Loans subject to the
LIBOR Rate Option shall be payable on the earliest of (i) the first Cleveland Banking Day of each
month, (ii) any prepayment or conversion (on the amount prepaid or converted), (iii) maturity
(whether by acceleration or otherwise) and/or, (iv) after such maturity, on demand.



     (b) Interest on all Revolving Loans subject to the Base Rate Option shall be payable on the
earliest of (i) in arrears on the first Cleveland Banking Day of each month, (ii) any prepayment or
conversion (on the amount prepaid or converted), (iii) maturity (whether by acceleration or
otherwise) and/or (iv) after such maturity, on demand.



     (c) Interest that shall have accrued under the 2004 Credit Agreement and remains unpaid on the
Restatement Effective Date shall be paid in full on the Restatement Effective Date.



     SECTION 4.04. INTEREST CALCULATIONS. All interest shall be computed on the basis of a
three hundred sixty (360) day year for the actual number of days elapsed. Interest shall in all
events continue to accrue in accordance with the provisions of this Agreement until the time
payment in full is received.



     SECTION 4.05. POST-DEFAULT RATE. After the occurrence and during the continuation of any
Event of Default, the Loans and any interest on the Loans not paid when due shall bear interest at
a rate equal to the rate applicable to Revolving Loans, subject to the Base Rate Option plus two
percent (2%) per annum, and all such interest shall be due on demand. No interest shall accrue on
any interest that is being charged with respect to any interest not paid when due.



     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



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Governors of the Federal
Reserve System), governmental rule, guideline, order or request (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 shall be subject to the prepayment premium set forth in Section 5.05 hereof.




     SECTION 4.07. TAX LAW, ETC. In the event that by reason of any law, regulation or
requirement or in the interpretation thereof by an official authority, or the imposition of any
requirement of any central bank whether or not having the force of law, any Bank shall, with
respect to this Agreement or any transaction under
this Agreement, be subjected to any tax, levy, impost, charge, fee, duty, deduction or withholding
of any kind whatsoever (other than any tax imposed upon the total net income of such Bank) and if
any such measures or any other similar measure shall result in an increase in the cost to such Bank
of making or maintaining any Loan or in a reduction in the amount of principal, interest or
commitment fee receivable by such Bank in respect thereof, then such Bank shall promptly notify the
Borrower stating the reasons therefor. The Borrower shall thereafter pay to such Bank upon demand
from time to time on each interest payment date with respect to such Loans, as additional
consideration hereunder, such additional amounts as will fully compensate such Bank for such
increased cost or reduced amount. A statement as to any such increased cost or reduced amount,
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.



     If any Bank receives such additional consideration from the Borrower pursuant to this Section
4.07, such Bank shall use its best efforts to obtain the benefits of any refund, deduction or
credit for any taxes or other amounts on account of which such additional consideration has been
paid and shall reimburse the Borrower to the extent, but only to the extent, that such Bank shall
receive a refund of such taxes or other amounts together with any interest thereon or an effective
net reduction in taxes or other governmental charges (including any taxes imposed on or measured by
the total net income of such Bank) of the United States or any state or



-22-









 




subdivision thereof by
virtue of any such deduction or credit, after first giving effect to all other deductions and
credits otherwise available to such Bank. If, at the time any audit of such Bank’s income tax
return is completed, such Bank determines, based on such audit, that it was not entitled to the
full amount of any refund reimbursed to the Borrower as aforesaid or that its net income taxes are
not reduced by a credit or deduction for the full amount of taxes reimbursed to the Borrower as
aforesaid, the Borrower, upon demand of such Bank, will promptly pay to such Bank the amount so
refunded to which such Bank was not so entitled, or the amount by which the net income taxes of
such Bank were not so reduced, as the case may be.




     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 shall be subject to the prepayment premium set forth in Section 5.05
hereof.



     SECTION 4.08. INDEMNITY. Without prejudice to any other provisions of this Article IV,
the Borrower hereby agrees to indemnify each Bank against any reasonable loss or expense which such
Bank may sustain or incur as a consequence of any Event of Default hereunder, including, but not
limited to, any loss of profit, premium or penalty incurred by such Bank in respect of funds
borrowed by it for the purpose of making or maintaining any Loan subject to the Libor Rate Option,
as determined by such Bank in the exercise of its sole but reasonable discretion. A statement as
to any such loss or expense shall be promptly 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.



     SECTION 4.09. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE. In the
event that the Agent shall have determined that dollar deposits of the relevant amount for the
relevant Interest Period are not available to the Reference Banks in the applicable Eurodollar
market or that, by reason of circumstances affecting such market, adequate and reasonable means do
not exist for ascertaining the LIBOR rate applicable to such Interest Period, as the case may be,
the Agent shall promptly give notice of such determination to the Borrower. In any such event, all
principal of the Loans then subject to the LIBOR Rate Option shall become subject to the Base Rate
Option on expiration of any Interest Periods then in effect. In the event that the circumstances
causing any such unavailability of deposits or inability to determine the LIBOR rate shall change
or terminate so that the LIBOR rate may again be determined, the Agent shall promptly so notify the
Borrower.



     SECTION 4.10. CHANGES IN LAW RENDERING LIBOR LOANS UNLAWFUL. If at any time any new law,
treaty, regulation, governmental rule, guideline, order or request or any change in any existing
law, treaty, regulation, governmental rule, guideline, order or request or any interpretation
thereof by any governmental or other regulatory authority charged with the administration thereof,
shall make it unlawful for any Bank to fund any Loans which it is committed to make hereunder
subject to the LIBOR Rate Option with moneys obtained in the Eurodollar market, the Commitment of
such Bank to fund such Loans shall, upon the happening of such event forthwith be suspended for the
duration of such illegality, and such Bank shall by written notice to the Borrower and the Agent
declare that its Commitment with respect to such Loans has been so suspended and, if and when such
illegality ceases to exist, such suspension



-23-









 




shall cease and such Bank shall similarly notify the
Borrower and the Agent. If any such change shall make it unlawful for any Bank to continue in
effect the funding in the applicable Eurodollar market of any Loan previously made by it hereunder
subject to the LIBOR Rate Option, such Bank shall, upon the happening of such event, notify the
Borrower, the Agent and the other Banks thereof in writing stating the reasons therefor, and the
Borrower shall, on the earlier of (i) the last day of the then current Interest Period or (ii) if
required by such law, regulation or interpretation, on such date as shall be specified in such
notice, prepay all such Loans to the Banks in full. Any such prepayment or conversion may be made
without payment of the prepayment premium provided for in Section 5.05 hereof, but the Borrower
shall compensate such Bank(s) for any 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.




     SECTION 4.11. FUNDING. Each Bank may, but shall not be required to, make Loans hereunder
with funds obtained outside the United States.



ARTICLE V

AGREEMENTS AND CONDITIONS APPLICABLE TO ALL REVOLVING LOANS




     SECTION 5.01. NOTICE OF BORROWING. (a) Whenever the Borrower desires to incur a Revolving Loan, it shall give the Agent, prior to
12:00 noon (Cleveland time), at least two (2) Cleveland Banking Day’s prior written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Loan to be subject to the LIBOR
Rate Option and at least one (1) Cleveland Banking Days’ prior written notice (or telephonic notice
promptly confirmed in writing) of each Revolving Loan to be subject to the Base Rate Option. Each
such notice (each, a “Notice of Borrowing” a form of which is attached hereto as Exhibit F) shall
be appropriately completed to specify (i) the aggregate principal amount of each Revolving Loan to
be made, which shall be an amount equal to an integral multiple of $500,000, (ii) the date such
Revolving Loan(s) is to be made (which shall be a Cleveland Banking Day and, in the case of a
Revolving Loan based on the LIBOR Rate Option, a London Banking Day), and (iii) whether the
Revolving Loan(s) shall be subject to the Base Rate Option or the Libor Rate Option and, in the
latter case, the Interest Period to be initially applicable thereto. The Agent shall promptly give
each Bank written notice (or telephonic notice promptly confirmed in writing) of each proposed
Revolving Loan, of such Bank’s Pro rata share thereof and of the other matters covered by the
Notice of Borrowing.



     (b) Without in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice permitted to be given hereunder, the Agent may, prior to receipt of written
confirmation, act without liability upon the basis of such telephonic notice, believed by the Agent
in good faith to be from an Authorized Fiscal Officer of the Borrower. In such case, the Borrower
hereby waives the right to dispute the Agent’s record of the terms of such telephonic notice.



     (c) Whenever the Borrower desires to incur a Swing Loan, it shall give the Agent, prior to
2:00 p.m. (Cleveland time) on the proposed date of borrowing of any Swing Loan, written notice (or
telephonic notice promptly confirmed in writing) in the form of a Notice of Borrowing of each such
Swing Loan. The Agent shall promptly give each Swing Line Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Swing



-24-









 




Loan, of such Swing Line Lender’s pro
rata share thereof and of other matters covered by the Notice of Borrowing relating to such Swing
Loan.




     SECTION 5.02. DISBURSEMENT OF FUNDS. (a) No later than 1:00 p.m. (Cleveland time) on the
date specified in each Notice of Borrowing, each Bank will make available its Pro rata portion of
each Revolving Loan requested to be made on such date in the manner provided below in this Section
5.02(a). All amounts shall be made available to the Agent in U.S. dollars and immediately
available funds at its office listed on the signature pages hereto and the Agent promptly will make
available to the Borrower by depositing to its account at the Agent’s office the aggregate of the
amounts so made available in the type of funds received. Unless the Agent shall have been notified
by any Bank prior to the date specified in the Notice of Borrowing that such Bank does not intend
to make available to the Agent its portion of the Revolving Loan or Revolving Loans to be made on
such date, the Agent may assume that such Bank has made such amount available to the Agent on such
date of borrowing, and the Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Bank and the Agent has made
available same to the Borrower, the Agent shall be entitled to recover such corresponding amount
from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Agent’s demand therefor, the Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Agent. 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 made
available by the Agent to the Borrower 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 then applicable rate of interest, calculated in
accordance with Article IV, for the Revolving Loans.



     (b) Nothing herein shall be deemed to relieve any Bank from its obligation to fulfill its
commitments hereunder or to prejudice any rights which the Borrower may have against any Bank as a
result of any default by such Bank hereunder.



     (c) No later than 3:00 p.m. (Cleveland time) on the date specified in each Notice of Borrowing
relating to a Swing Loan, each Swing Line Lender will make available its pro rata portion of each
Swing Loan requested to be made on such date in the manner provided below in this Section 5.02(c).
All amounts shall be made available to the Agent in U.S. dollars and immediately available funds at
its office listed on the signature pages hereto and the Agent promptly will make available to the
Borrower by depositing to its account at the Agent’s office the aggregate of the amounts so made
available in the type of funds received.



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     SECTION 5.03. CONDITIONS TO LOANS AND LETTERS OF CREDIT. The obligation of each Bank to
make Loans hereunder or of the Agent to issue letters of credit hereunder, as applicable, is
conditioned, in the case of each Loan and each letter of credit hereunder, upon the following:



     (a) receipt by the Agent of a Notice of Borrowing or Letter of Credit Request, as applicable;



     (b) no Event of Default or Possible Default existing then or immediately after giving effect
to the Loan or letter of credit, as applicable;



     (c) the conditions set forth in Article VI hereof having been satisfied; and



     (d) the representations and warranties contained in Article IX hereof 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.


Each request for a Loan or a letter of credit by the Borrower hereunder shall be deemed to be a
representation and warranty by the Borrower as of the date of such borrowing as to the truth of the
matters specified in subsections (b), (c) and (d) above.




     SECTION 5.04. PAYMENT ON NOTES, ETC. All payments of principal, interest, and any other
amounts under this Agreement shall be made to the Agent in immediately available funds and in
lawful money of the United States of America
for the account of the Banks, not later than 12:00 noon (Cleveland time) on the date when due. Any
such payment received by the Agent after 12:00 noon on a Cleveland Banking Day shall be deemed
received on the next succeeding Cleveland Banking Day and interest shall accrue to such next
Cleveland Banking Day in respect of any principal of the Loans to be paid by such payment. All
payments made by the Borrower hereunder, under any Note or any other Related Writing, will be made
without setoff, counterclaim or defense. The Agent shall distribute to each Bank 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 on the next Cleveland Banking Day.
Each Bank shall endorse each Note held by it with appropriate notations evidencing each payment of
principal made thereon or shall record such principal payment by such other method as such Bank may
generally employ; provided, that failure to make any such entry shall in no way detract
from the Borrower’s obligations under each such Note. Whenever any payment to be made hereunder,
including without limitation any payment to be made on any Note, shall be stated to be due on a day
which is not a Cleveland Banking Day, such payment shall be made on the next succeeding Cleveland
Banking Day and such extension of time shall in each case be included in the computation of the
interest payable on such Note; provided, that if the next succeeding Cleveland Banking Day
falls in the succeeding calendar month, such payment shall be made on the preceding Cleveland
Banking Day and the relevant Interest Period shall be adjusted accordingly. To the extent a Bank
does not receive its Pro rata share of the amount of principal, interest and other amounts made
available by the Borrower to the Agent for the account of such Bank at the applicable time set
forth above in this Section 5.04, such Bank shall



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be entitled to recover from the Agent, interest
on all such amounts in respect of each day from the date such amounts were made available to the
Agent by the Borrower to the date such amounts are distributed to such Bank at a rate per annum
equal to the overnight Federal Funds Effective Rate.




     SECTION 5.05. PREPAYMENT. (a) The Borrower shall have the right (subject to the payment
of a prepayment premium as hereinafter described in this Section 5.05), at any time or from time to
time, upon two (2) Cleveland Banking Days’ prior written notice (or telephonic notice promptly
confirmed in writing) to prepay all or any part of the principal amount of the Loans then
outstanding as designated by the Borrower, subject to the provisions of Section 5.05(b) hereof,
plus interest accrued on the amount so prepaid to the date of such prepayment, which notice shall
promptly be transmitted by the Agent to each of the Banks.



     (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 (hereinafter, “Last LIBOR”) prior to the end of the applicable Interest Period, 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, a prepayment premium measured by a rate (the
“Prepayment Premium 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 Prepayment Premium Rate shall be applied to all or such part of the principal
amounts of the Notes as related to the Loans to be prepaid, or that are accelerated and the
prepayment premium 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, 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 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, such cancellation shall be treated as a
prepayment subject to the aforementioned prepayment premium.



     SECTION 5.06. UNUSED COMMITMENT FEES. (a) For each day that the Revolving Credit
Exposure equals or exceeds fifty percent (50%) of the Total Revolving Loan Commitments, the
Borrower shall pay to the Agent, for the Pro rata benefit of the Banks, an



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unused commitment fee at
the rate per annum (based on a year of 360 days and calculated for the actual number of days
elapsed) of fifteen (15) basis points times the excess of the Total Revolving Loan
Commitments then in effect over the Revolving Credit Exposure on that day and (b) for each day that
the Revolving Credit Exposure is less than fifty percent (50%) of the Total Revolving Loan
Commitments, the Borrower shall pay to the Agent, for the Pro rata benefit of the Banks, an unused
commitment fee at the rate per annum (based on a year of 360 days calculated for the actual number
of days elapsed) of twenty-five (25) basis points times the excess of the Total Revolving
Loan Commitments then in effect over the Revolving Credit Exposure on that day. The unused
commitment fee shall be payable on the first Cleveland Banking Day after each Fiscal Quarterly Date
commencing on the Restatement Effective Date and continuing on the first Cleveland Banking Day
after each Fiscal Quarterly Date thereafter. After any permanent reduction of the Total Revolving
Loan Commitments pursuant to Section 5.07, the unused commitment fees payable hereunder shall be
calculated upon the Total Revolving Loan Commitments of the Banks as so reduced.




     (b) All unused commitment fees as defined in the 2004 Credit Agreement that shall have accrued
under the 2004 Credit Agreement and remain unpaid on the Restatement Effective Date shall be paid
in full on the Restatement Effective Date.



     SECTION 5.07. MODIFICATION OF THE TOTAL REVOLVING LOAN COMMITMENTS. (a) At any time during the Commitment Increase Period, the Borrower may request
the Agent to
increase the Total Revolving Loan Commitments from the Restatement Effective Date Commitment Amount
up to an amount that shall not exceed $750,000,000. Each increase may be made by either (i)
proportionally increasing, for one or more Banks, with their prior written consent, their
respective Commitments, in increments of at least Five Million Dollars ($5,000,000) or (ii) by
including one or more Additional Banks, each with a new Commitment of at least Twenty Five Million
Dollars ($25,000,000), as a party to this Agreement (collectively, the “Additional Commitments”).
During the Commitment Increase Period, all of the Banks agree that the Agent, in its sole
discretion, exercised in good faith, may permit one or more Additional Commitments upon
satisfaction of the following requirements: (A) each Additional Bank, if any, shall execute an
Additional Bank Assumption Agreement, (B) the Agent shall provide to each Bank a revised Exhibit A
to this Agreement at least three Cleveland Banking Days prior to the effectiveness of such
Additional Commitments (each, an “Additional Bank Assumption Effective Date”), (C) the Borrower
shall execute and deliver to the Agent, the Banks and the Additional Banks such replacement or
additional Revolving Loan Notes as shall be required by the Agent, such Banks or such Additional
Banks, as the case may be and (D) Borrower shall pay to the Agent, each Bank with an Additional
Commitment, if any, and each Additional Bank with an Additional Commitment, if any, such commitment
fees as may be agreed upon between the Borrower and the Agent, such Banks and such Additional
Banks, as the case may be. The Banks hereby authorize the Agent to execute each Additional Bank
Assumption Agreement on behalf of the Banks. On each Additional Bank Assumption Effective Date,
the Banks shall make adjustments among themselves with respect to the Revolving Loans and LC
Obligations then outstanding, participations in Swing Loans outstanding, if any and amounts of
principal, interest, fees and other amounts paid or payable with respect thereto as shall be
necessary, in the opinion of the Agent, in order to reallocate among such Banks such outstanding
amounts, based on their respective Pro rata shares of the then effective Total Revolving Loan
Commitments and to otherwise carry out fully the intent and terms of this



-28-









 




Section 5.07(a). In
connection therewith, it is understood and agreed that the Maximum Amount of any Bank set forth
under such Bank’s name on Exhibit A hereto will not be increased (or decreased except pursuant to
Section 5.07(b) hereof) without the prior written consent of such Bank. The Borrower shall not
request any increase in the Total Revolving Loan Commitments pursuant to this Section 5.07(a) if a
Possible Default or an Event of Default shall then exist, or immediately after giving effect to any
such increase would exist.




     (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 Pro rata. Concurrently with each reduction, the Borrower shall prepay the amount, if
any, together with interest thereon by which the aggregate unpaid principal amount of the Loans
plus the LC Obligation exceeds the Total Revolving Loan Commitments as so reduced in accordance
with Section 5.05 of this Agreement.



     SECTION 5.08. EXTENSIONS OF THE LOANS. Commencing on May 1, 2008 and on each May 1st thereafter, the Borrower may request the Banks to
extend the Termination Date for one additional year in a writing delivered to the Agent not later
than 180 days prior to the then applicable Termination Date, in accordance with the terms of this
Agreement. The unanimous consent of the Banks shall be required for any such extension and the
Banks shall have the right, but not the obligation, to approve such request for an extension. Any
approval of the Borrower’s request shall be subject to such terms and conditions as the Banks may
deem appropriate.



ARTICLE VI

CONDITIONS PRECEDENT




     Prior to or concurrently with the execution and delivery of this Agreement, and as conditions
precedent to the making or continuation of any Loans or the issuance or continuation of letters of
credit hereunder on the Restatement Effective Date, the following actions shall be taken, all in
form and substance satisfactory to the Agents and the Banks and their respective counsel:



     SECTION 6.01. CORPORATE AND LOAN DOCUMENTS. The Borrower shall deliver or cause to be
delivered to the Agents and the Banks the following documents, in all cases duly executed,
delivered and/or certified, as the case may be:



     (a) Certified copies of the resolutions of the board of directors of the Borrower evidencing
approval of the execution, delivery and performance of this Agreement and the Notes provided for
herein;



     (b) Certified copies of resolutions of the board of directors of the Parent evidencing
approval of the execution, delivery and performance of the Guaranty;



     (c) Copies of the Articles of Incorporation of the Borrower in effect as of the Restatement
Effective Date, certified by the Ohio Secretary of State as of a recent date;



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     (d) Copies of the Articles of Incorporation of the Parent in effect as of the Restatement
Effective Date, certified by the Ohio Secretary of State as of a recent date;



     (e) Copies of the Code of Regulations of the Borrower in effect as of the Restatement
Effective Date, certified as true and complete as of the Restatement Effective Date by the
secretary of the Borrower;



     (f) Copies of the Code of Regulations of the Parent in effect as of the Restatement Effective
Date, certified as true and complete as of the Restatement Effective Date by the secretary of the
Parent;



     (g) A good standing certificate for the Borrower from the State of Ohio as of a recent date;



     (h) A good standing certificate for the Parent from the State of Ohio as of a recent date.



     (i) A certificate of the secretary or assistant secretary of the Borrower certifying the names
of the officers of the Borrower authorized to sign this Agreement and the Notes, together with the
true signatures of such officers.



     (j) A certificate of the secretary or assistant secretary of the Parent certifying the names
of the officers of the Parent authorized to sign the Guaranty, together with the true signatures of
such officers.



     (k) The Borrower, the Agents, and the Banks shall have executed and delivered counterparts of
the Agreement.



     (l) The Parent shall have executed and delivered the Guaranty to the Agents and the Banks.



     (m) The Borrower shall have executed and delivered to each Bank (other than the Additional
Banks), a Revolving Loan Note payable to the account of each respective Bank in the amount of their
respective Commitments.



     (n) The Borrower shall have executed and delivered to each Swing Line Lender, a Swing Line
Note payable to the account of each respective Swing Line Lender in the amount of their respective
Swing Line Commitments.



     (o) A certificate of the secretary or assistant secretary of the Borrower certifying that as
of the Restatement Effective Date and after giving effect thereto and to the Loans made hereunder
(i) there exists no Possible Default or Event of Default and (ii) all representations and
warranties contained herein shall be true and correct in all material respects.



     (p) A certificate of the secretary or assistant secretary of the Parent certifying that as of
the Restatement Effective Date and after giving effect thereto and to the Loans made hereunder (i)
there exists no Possible Default or Event of Default and (ii) all representations and warranties
contained herein shall be true and correct in all material respects.



-30-









 





     SECTION 6.02. OPINION OF COUNSEL FOR PARENT. The Borrower shall deliver or cause 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 Guaranty
and such other matters as the Agents and the Banks may request.



     SECTION 6.03. JUDGMENT, ORDERS. On the Restatement Effective Date, there shall not exist
any judgment, order, injunction or other restraint issued or filed with respect to the consummation
of the transactions contemplated by this Agreement.



     SECTION 6.04. LITIGATION. On the Restatement Effective Date, there shall be no actions, suits or proceedings pending or
threatened (a) with respect to this Agreement or the transactions contemplated hereby or (b) which
the Agents or the Banks shall determine could have a Material Adverse Effect.



     SECTION 6.05. NOTICE OF BORROWING. Prior to the making of each Loan, the Agent shall have
received a Notice of Borrowing satisfying the requirements of Section 5.01.



     SECTION 6.06. OPINION OF COUNSEL FOR BORROWER. The Borrower shall deliver or cause 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 Agreement
and the Notes and such other matters as the Agents and the Banks may request.



     SECTION 6.07. PAYMENT OF FEES. On the Restatement Effective Date, the Borrower shall have
paid to the Agents and the Banks all costs, fees and expenses, and all other compensation
contemplated by this Agreement (including, without limitation, legal fees and expenses) to the
extent then due.



     SECTION 6.08. ADVERSE CHANGE, ETC. From January 31, 2007 to the Restatement Effective
Date, nothing shall have occurred (and neither the Banks nor the Agents shall have become aware of
any facts or conditions not previously known) which the Banks or the Agents shall determine has, or
could reasonably be expected to have, a Material Adverse Effect.



     SECTION 6.09. EVIDENCE OF INSURANCE. The Borrower shall have delivered to the Agents and
the Banks evidence of insurance complying with the provisions of Section 7.09 hereof.



ARTICLE VII

AFFIRMATIVE COVENANTS




     Borrower covenants and agrees that on the Restatement Effective Date and thereafter, for so
long as this Agreement remains in effect and until the Commitments and all letters of credit are
terminated, no Notes are outstanding and the Loans, together with interest, fees and all other
obligations incurred hereunder, are paid in full, the Borrower will perform and observe all of the
following provisions, namely:



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     SECTION 7.01. PAYMENT OF AMOUNTS DUE. The Borrower will make all payments of the
principal of and interest on the Loans and the Notes promptly as the same become due.



     SECTION 7.02. EXISTENCE, BUSINESS, ETC. The Borrower will cause to be done all things necessary to preserve and to keep in full force
and effect its existence and rights and those of its Subsidiaries. The Borrower will, and will
cause its Subsidiaries to, comply in all material respects with all federal, state and local laws
and regulations now in effect or hereafter promulgated by any governmental authority having
jurisdiction over it or them, as applicable.



     SECTION 7.03. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause its
Subsidiaries to, at all times maintain, preserve, protect and keep its properties used in the
conduct of its business in good repair, working order and condition, ordinary wear and tear
excepted, and, from time to time, make all needful and proper repairs, renewals, replacements,
betterments, and improvements thereto, so that the business carried on in connection therewith may
be properly conducted at all times.



     SECTION 7.04. PAYMENT OF TAXES, ETC. The Borrower will pay and discharge all lawful
taxes, assessments and governmental charges or levies imposed upon it, upon its income or profits
or upon its properties, before the same shall become in default or penalties attach thereto, as
well as all lawful claims for same which have become due and payable which, if unpaid, might become
a Lien or charge upon such properties or any part thereof; provided, that the Borrower
shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long
as the validity thereof shall be contested in good faith by appropriate proceedings and there shall
be set aside on its books such reserves with respect thereto as are required by GAAP. Except where
the liability for the tax, assessment, charge, levy or claim is limited solely to the property on
which assessed and is not subject to enforcement against the Borrower, the Borrower will in all
events pay such tax, assessment, charge, levy or claim before the property subject thereto shall be
sold to satisfy any Lien which has attached as security therefor.



     SECTION 7.05. FINANCIAL STATEMENTS. The Borrower will furnish or cause to be furnished to
each Bank:



     (a) within forty-five (45) days (or fifty (50) days so long as the Parent shall not have
reported an Event of Default under the Guaranty to the Securities and Exchange Commission during
such fiscal period nor on its most recent filing with the Securities and Exchange Commission) after
the end of each of the first three (3) quarter-annual fiscal periods of each of the Borrower’s
fiscal years, a Form 10-Q as filed with the Securities and Exchange Commission, an unaudited
consolidated and consolidating balance sheet of the Parent as at the end of that period and an
unaudited consolidated and consolidating statement of income of the Parent for the Parent’s current
fiscal year to date, all prepared in form and detail in accordance with GAAP, consistently applied,
or the Pro Rata Consolidation Method, as applicable, and certified by a Senior Officer of the
Parent, together with a certificate of a Senior Officer of the Borrower (i) specifying the nature
and period of existence of each Event of Default and/or Possible Default, if any, and the action
taken, being taken or proposed to be taken by the Borrower in respect thereof, or if none, so
stating, (ii) certifying that the representations and warranties of the Borrower set forth in
Article IX hereof are true and correct as of the date of such certificate, or, if



-32-









 




not, all respects in which they are not and (iii) certifying compliance by the Borrower with
the covenants contained in Section 8.13;




     (b) 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 Commission during
such fiscal period nor on its most recent filing with the Securities and Exchange Commission) after
the end of each fiscal year of the Borrower, an annual report on Form 10-K as filed by the Parent
with the Securities and Exchange Commission, including the complete audited consolidated balance
sheets and statements of income of the Parent for that year, certified by an independent public
accountant satisfactory to the Banks, and an unaudited consolidating balance sheet and statement of
income of the Parent for the current fiscal year, each in form and detail satisfactory to the
Banks, and prepared in accordance with GAAP, consistently applied, or the Pro Rata Consolidation
Method, as applicable, together with (i) a report of the independent certified public accountant,
with an opinion that is not qualified as to the scope of the audit or as to the status of the
Parent or the Borrower as a going concern, (ii) a certificate of a Senior Officer of the Borrower
(X) specifying the nature and period of existence of each Event of Default and/or Possible Default,
if any, and the action taken, being taken or proposed to be taken by the Borrower in respect
thereof or, if none, so stating, and (Y) certifying that the representations and warranties of the
Borrower set forth in Article IX hereof are true and correct as of the date of such certificate,
or, if not, all respects in which they are not, and (Z) certifying compliance by the Borrower with
the covenants contained in Section 8.13;



     (c) no more than ninety (90) days after the commencement of each fiscal year of the Borrower,
a budget of the Borrower in form and substance substantially the same as the budgets delivered by
the Borrower to the Agent on or before the Restatement Effective Date;



     (d) forthwith upon the Agent’s or any Bank’s written request, such other information about the
financial condition, properties and operations of the Borrower and its Subsidiaries, including, but
not limited to, financial statements, management letters of accountants addressed to the Parent or
the Borrower, rent rolls and other similar information for each Subsidiary of the Borrower, in each
case as the Agent or that Bank may from time to time reasonably request; and



     (e) within forty-five (45) days (or fifty (50) days so long as the Parent shall not have
reported an Event of Default under the Guaranty to the Securities and Exchange Commission during
such fiscal period nor on its most recent filing with the Securities and Exchange Commission) after
the end of each fiscal quarter of each of the Borrower’s fiscal years, a report setting forth (i)
the principal amounts of all Indebtedness originated or acquired by FCCC that is outstanding to
non-affiliated third parties, (ii) a statement of the aggregate notional amount of all Total Rate
of Return Swaps on which FCCC is obligated as of the last day of such fiscal quarter, the aggregate
amount of the cash risk to FCCC in respect of such Total Rate of Return Swaps as of the last day of
such fiscal quarter and, if secured, the asset or assets securing such Total Rate of Return Swaps,
(iii) information, in sufficient detail, demonstrating compliance by the Subsidiaries of the
Borrower with the limitations set forth in Section 8.15 with respect to the pledging of second
assets permitted under such Section 8.15 to secure Permitted Debt and (iv) information, in
sufficient detail, demonstrating compliance by FCCC with the limitations set forth in Section 8.15
with respect to the pledging of additional collateral permitted by such Section 8.15.



-33-









 





     SECTION 7.06. INSPECTION. The Borrower will and will cause each Subsidiary to permit its
properties and records to be examined at all reasonable times by the Agent and each of the Banks.



     SECTION 7.07. ENVIRONMENTAL COMPLIANCE. The Borrower will comply in all material respects
with any and all Environmental Laws including, without limitation, all Environmental Laws in
jurisdictions in which the Borrower or any Subsidiary owns property, operates, arranges for
disposal or treatment of hazardous substances, solid waste or other wastes, accepts for transport
any hazardous substances, solid waste or other wastes or holds any interest in real property or
otherwise. The Borrower will furnish to the Banks promptly after receipt thereof a copy of any
notice the Borrower or any Subsidiary may receive from any governmental authority, private person
or entity or otherwise that any litigation or proceeding pertaining to any environmental, health or
safety matter has been filed or is threatened against the Borrower or such Subsidiary, any real
property in which the Borrower or such Subsidiary holds any interest or any past or present
operation of the Borrower or such Subsidiary. The Borrower will not allow the storage, release or
disposal of hazardous waste, solid waste or other wastes on, under or to any real property in which
the Borrower holds any interest or performs any of its operations, in violation of any
Environmental Law. As used in this subsection “litigation or proceeding” means any demand, claim,
notice, suit, suit in equity, action, administrative action, investigation or inquiry whether
brought by any governmental authority, private person or entity or otherwise. The Borrower shall
defend, indemnify and hold the Banks harmless against all costs, expenses, claims, damages,
penalties and liabilities of every kind or nature whatsoever (including attorneys’ fees) arising
out of or resulting from the noncompliance of the Borrower or any Subsidiary with any Environmental
Law provided that, so long as and to the extent that the Banks are not required to make any
payment or suffer to exist any unsatisfied judgment, order or assessment against them, the Borrower
may pursue rights of appeal to comply with such Environmental Laws. In any case of noncompliance
with any Environmental Law by a Subsidiary, the Banks’ recourse for indemnity in respect of the
matters provided for in this Section 7.07 shall be limited solely to the property of the Subsidiary
holding title to the property involved in such noncompliance and such recovery shall not be a Lien,
or a basis of a claim of Lien or levy of execution, against either the Borrower’s general assets or
the general assets of any of its Subsidiaries.



     SECTION 7.08. ERISA. (a) At the request of any Bank, the Borrower will deliver to
such Bank a complete copy of the annual report (Form 5500) of each Plan required to be filed with
the Internal Revenue Service. In addition to any certificates or notes delivered to the Banks
pursuant to this Section 7.08, copies of any notices received by the Borrower or any Subsidiary of
the Borrower or any ERISA Affiliate with respect to any Plan shall be delivered to the Banks no
later than ten (10) days after the date such notice has been filed with the Internal Revenue
Service or the PBGC or such notice has been received by the Borrower or such Subsidiary or such
ERISA Affiliate, as applicable.



     (b) As soon as possible and, in any event, within ten (10) days after the Borrower, any of its
Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of
any of the following, the Borrower will deliver to each of the Banks a certificate of an
authorized officer of the Borrower setting forth details as to the occurrence and such action, if
any, which the Borrower, such Subsidiary or such ERISA Affiliate is required or proposes to take,
together



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with any notices required or proposed to be given to or filed with or by the Borrower,
such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto:





     (i) that a Reportable Event has occurred;




     (ii) that an accumulated funding deficiency has been incurred or any application may be
or has been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an extension of
any amortization period under Section 412 of the Code with respect to a Plan;




     (iii) that a contribution required to be made to a Plan has not been timely made;




     (iv) that a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA;




     (v) that a Plan has an Unfunded Current Liability giving rise to a Lien under ERISA or
the Code;




     (vi) that proceedings may be or have been instituted to terminate or appoint a trustee
to administer a Plan;




     (vii) that a proceeding has been instituted pursuant to Section 515 of ERISA to collect
a delinquent contribution to a Plan;




     (viii) that the Borrower, any of its Subsidiaries or any ERISA Affiliate will or may
incur any liability (including any indirect, contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062, 4069, 4201, 4204
or 4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975, or 4980 of
the Code or Sections 409 or 502(i) or 501(1) of ERISA; or




     (ix) that the Borrower or any of its Subsidiaries may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as required by
Section 601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of
ERISA).



     SECTION 7.09. INSURANCE. The Borrower will and will cause each of its Subsidiaries to (a)
keep itself and all of its insurable properties insured at all times to such extent, by such
insurers, and against such hazards and liabilities as is generally and prudently done by like
businesses, it being understood that the Parent, the Borrower and each Subsidiary has obtained a
fidelity bond for each of its employees
that handle funds, (b) give each Bank prompt written notice of each material change in the
Borrower’s or any Subsidiary’s insurance coverage and the details of the change and (c) forthwith
upon any Bank’s written request, furnish to each Bank such information about the Borrower’s or any
Subsidiary’s insurance as any Bank may from time to time reasonably request, which information
shall be prepared in form and detail



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satisfactory to each Bank and certified by an officer of the
Borrower or such Subsidiary, as applicable.




     SECTION 7.10. MONEY OBLIGATIONS. The Borrower will and will cause each Subsidiary to pay
in full (a) prior in each case to the date when penalties would attach, all taxes, assessments and
governmental charges and levies (except only those so long as and to the extent that the same shall
be contested in good faith by appropriate and timely proceedings diligently pursued) for which it
may be or become liable or to which any or all of its properties may be or become subject, (b) all
of its wage obligations to its employees in compliance with the Fair Labor Standards Act (29 U.S.C.
§§206-207) or any comparable provisions, and (c) all of its other obligations calling for the
payment of money (except only those so long as and to the extent that the same shall be contested
in good faith by appropriate and timely proceedings diligently pursued) before such payment becomes
overdue except where the failure to make such payments, either singly or in the aggregate, would
not have a Material Adverse Effect on the Borrower and provided, that the Borrower shall
promptly give written notice to the Agent of any such non-payments, which written notice the Agent
will promptly deliver to each Bank.



     SECTION 7.11. RECORDS. The Borrower will and will cause each Subsidiary to (a) at all
times maintain true and complete records and books of account, and without limiting the generality
of the foregoing, maintain appropriate reserves for possible losses and liabilities, all in
accordance with GAAP applied on a basis not inconsistent with its present accounting procedures,
and (b) at all reasonable times permit any Bank to examine the Borrower’s or any Subsidiary’s books
and records and to make excerpts therefrom and transcripts thereof.



     SECTION 7.12. FRANCHISES. The Borrower will and will cause each Subsidiary to preserve
and maintain at all times its corporate existence, rights and franchises; provided, that
this Section 7.12 shall not prohibit any merger, consolidation, dissolution or transfer permitted
by Section 8.02.



     SECTION 7.13. NOTICE. The Borrower will cause its Chief Financial Officer, or in his or
her absence another officer designated by the Chief Financial Officer, to promptly notify the Banks
whenever:



     (a) any Event of Default or Possible Default may occur hereunder or any representation or
warranty made in Article IX hereof or elsewhere in this Agreement or in any Related Writing may for
any reason cease in any material respect to be true and complete; and/or



     (b) (i) any Subsidiary shall be in default of any material (either with respect to the
Subsidiary or the Borrower) Indebtedness or Contingent Obligation or, to the knowledge of the
Borrower, any material obligations in respect of taxes and/or Indebtedness for goods or services
purchased by, or other contractual obligations of, such Subsidiary and/or (ii) any Subsidiary shall
not, to the knowledge of Borrower, be in compliance with any law, order, rule, judgments,
ordinance, regulation, license, franchise, lease or other agreement that has or could reasonably be
expected to have a material adverse effect on the business, operations, property or financial
condition of such Subsidiary, and/or (iii) the Borrower and/or any Subsidiary shall have received
or have knowledge of any actual, pending or threatened claim, notice, litigation, citation,
proceeding, or demand relating to any matter(s) described in subsections (i) and (ii) of this
Section 7.13(b); and/or



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     (c) the Borrower shall be in default of any guarantee permitted by Section 8.07(b).



     SECTION 7.14. POST CLOSING ITEMS. The Borrower will promptly perform and complete to the
satisfaction of the Agent each of the matters, if any, set forth on Schedule 7.14 attached hereto
(the “Post Closing Items”) on or before the date set forth on Schedule 7.14 for the performance and
completion thereof (the “Satisfaction Date”).



     SECTION 7.15. FURTHER ASSURANCES; REPLACEMENT NOTES. (a) The Borrower agrees to execute
and deliver to the Agent and/or the Banks any agreements, documents and instruments, including,
without limitation, additional Notes as replacements or substitutions as may reasonably be required
by the Agent and/or the Banks, and to take such other actions as reasonably requested by the Agent
to effect the transactions contemplated hereby.



     (b) Upon the receipt by the Borrower of an affidavit of an officer of a Bank as to the loss,
theft, destruction or mutilation of its Note or any other security document that is not of public
record, upon the cancellation of any such Note or other security document, as applicable, the
Borrower shall issue, in lieu thereof, a replacement Note or other security document, as
applicable, in the same principal amount thereof and otherwise of like tenor.



     SECTION 7.16. NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event within three
(3) Cleveland Banking Days after any officer of the Borrower or any of its Subsidiaries obtains
knowledge thereof, the Borrower will deliver notice to the Banks of (a) the occurrence of any event
which constitutes a Possible Default or Event of Default, which notice shall specify the nature
thereof, the period of existence thereof and what action the Borrower proposes to take with respect
thereto, and (b) the commencement of, or written threat of, or any significant development in, any
litigation or governmental proceeding pending against the Borrower or any of its Subsidiaries which
is likely to have a Material Adverse Effect.



     SECTION 7.17. USE OF PROCEEDS. All proceeds of the Revolving Loans shall be used as provided in Section 2.04 and all proceeds
of the Swing Loans shall be used as provided in Section 2.07(e).



ARTICLE VIII

NEGATIVE COVENANTS




     The Borrower covenants and agrees that as of the Restatement Effective Date, and thereafter
for so long as this Agreement is in effect and until the Commitments and all letters of credit are
terminated, no Notes are outstanding and the Loans, together with interest, fees and all other
obligations incurred hereunder, are paid in full, the Borrower will observe all of the following
provisions, namely:



     SECTION 8.01. PLAN. Neither the Borrower nor any Subsidiary will suffer or permit any
Plan to be amended if, as a result of such amendment, the current liability under the Plan is
increased to such an extent that security is required pursuant to Section 307 of the ERISA. As used
herein, “current liability” means current liability as defined in Section 307 of ERISA.



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     SECTION 8.02. COMBINATIONS. The Borrower will not dissolve or liquidate, and will not
permit any Subsidiary to dissolve or liquidate, except in the ordinary course of business and to
the extent that no Material Adverse Effect is thereby suffered by the Borrower. The Borrower will
not and will not permit any Subsidiary to be a party to any consolidation or merger;
provided, that this Section 8.02 shall not apply to (i) any merger of a Subsidiary into the
Borrower (with the Borrower being the surviving corporation) or into another Subsidiary, or (ii)
any consolidation of a Subsidiary with another Subsidiary.



     SECTION 8.03. BULK TRANSFERS. The Borrower will not and will not permit a Subsidiary to
be a party to any lease, sale or other transfer involving all or a substantial part of the assets
of the Borrower and its Subsidiaries as a whole; provided, that this Section 8.03 shall not
apply to (a) any transfer of assets by a Subsidiary to the Borrower or another Subsidiary, (b) the
transfer of assets to a trustee (other than a trustee for the benefit of creditors) in connection
with a building project involving such assets, or (c) any transfer effected in the normal course of
business and on commercially reasonable terms.



     SECTION 8.04. BORROWINGS. The Borrower will not and will not permit any Subsidiary to
create, assume or suffer to exist any unsecured or secured Indebtedness of any kind or any
reimbursement obligation or other similar liabilities with respect to letters of credit issued for
the Borrower’s or any Subsidiary’s account (other than non-recourse letters of credit or surety
bonds issued as credit enhancement); provided, that this Section 8.04 shall not apply to
the following (collectively, “Permitted Debt”):



     (a) any Loans obtained hereunder;



     (b) any secured Indebtedness of the Borrower or of any Subsidiary created in the course of
purchasing or developing real estate or financing construction or other improvements thereon or
purchasing furniture, fixtures or other equipment therefor or any other related Indebtedness of the
Borrower or of any Subsidiary or any refinancings thereof, provided, that neither the
Borrower nor any Subsidiary (other than a Subsidiary whose sole assets consist of contiguous
parcels of land which are being purchased or developed with such financing, the improvements, if
any, thereon, furniture, fixtures and other equipment used in connection therewith, receivables
arising from tenants in connection therewith and the proceeds of such receivables and other
property directly obtained from the ownership of such assets) shall have any personal liability for
such Indebtedness (except for Indebtedness permitted in Section 8.07(e)), the creditors’ recourse
being solely to the property being pledged as collateral for such Indebtedness and the income
therefrom;



     (c) except as provided in Section 8.04(d) hereof, Indebtedness under any Hedge Agreement
relating to Indebtedness otherwise permitted under this Section 8.04, provided, that, any
Hedge Agreement proposed to be entered into or guaranteed by the Borrower, FCCC or any other
Subsidiary of the Borrower (other than a SPE Subsidiary), along with all Hedge Agreements entered
into or guaranteed by the Parent, in each case with a Person that is not a Bank, that results in a
Measured Credit Risk for all such Hedge Agreements entered into with Persons other than a Bank, in
excess of $33,500,000, shall require the prior written consent of the Required Banks (such written
consent to be delivered by each consenting Bank to the Agent not more than three (3) Business Days
after the request for such consent has been delivered by the Borrower to the Agent,
provided, that, each Bank that does not deliver such written consent



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within such three (3)
Business Day period shall be deemed to have denied the request for such Hedge Agreement);




     (d) Indebtedness of any of the Borrower’s SPE Subsidiaries under (i) Hedge Agreements or (ii)
Total Rate of Return Swaps relating to Indebtedness otherwise permitted under this Section 8.04, in
all cases under (i) and (ii), that are recourse solely to such SPE Subsidiary;



     (e) Indebtedness owed by a Subsidiary or the Borrower as permitted by Section 8.06(b) hereof;



     (f) any guarantee or indemnity permitted by Section 8.07 hereof to the extent such guarantee
or indemnity constitutes Indebtedness;



     (g) Indebtedness of FCCC in favor of non-affiliated third parties, including, without
limitation, Total Rate of Return Swaps, up to a maximum principal amount outstanding at any time of
$200,000,000, to be used solely for the purposes of (i) originating loans to non-affiliated third
parties (subject to the limitations set forth in Section 8.06(e)) and Affiliates of FCCC, (ii)
acquiring loans, promissory notes and bonds issued by non-affiliated third parties (subject to the
limitations set forth in Section 8.06(e)) and (iii) entering into Total Rate of Return Swaps;



     (h) Indebtedness of any Subsidiary of the Borrower to pay the relevant seller the
Consideration required in connection with a Multi-Asset Acquisition by such Subsidiary, so long as
such Indebtedness (i) along with all other Consideration paid (and/or assumed) in connection with
such Multi-Asset Acquisition (or series of related Multi-Asset Acquisitions), does not
exceed $200,000,000 and (ii) along with the total Consideration paid (and/or assumed) by all
Subsidiaries in connection with Multi-Asset Acquisitions, does not exceed $800,000,000; and



     (i) Indebtedness assumed by a Subsidiary in connection with a Multi-Asset Acquisition, so long
as such Indebtedness (i) existed at the time of such Multi-Asset Acquisition, (ii) was not incurred
in contemplation of such Multi-Asset Acquisition, (iii) along with all other Consideration paid
(and/or assumed) by such Subsidiary in connection with such Multi-Asset Acquisition (or series of
Multi-Asset Acquisitions), does not exceed $200,000,000 and (iv) along with the total
Consideration paid (and/or assumed) by all Subsidiaries in connection with Multi-Asset
Acquisitions, does not exceed $800,000,000.



     SECTION 8.05. LIENS. The Borrower will not and will not permit any Subsidiary to acquire
any property subject to any inventory consignment, land contract or other title retention contract;
other than the periodic sale by the Borrower or any Subsidiary of any mortgages held by the
Borrower or such Subsidiary, sell or otherwise transfer any receivables, or suffer or permit any
property now owned or hereafter acquired by it to be or become encumbered by any mortgage, security
interest, financing statement or Lien of any kind or nature other than:



     (a) any Lien for a tax, assessment or governmental charge or levy so long as the payment
thereof is not at the time required by Section 7.10 hereof;



     (b) any Lien securing only its workers’ compensation, unemployment insurance and similar
obligations;



-39-









 





     (c) any mechanic’s, carrier’s or similar common law or statutory Lien incurred in the normal
course of business;



     (d) any transfer of a check or other medium of payment for deposit or collection through
normal banking channels or any similar transaction in the normal course of business;



     (e) any mortgage, security interest or other Lien securing only Indebtedness permitted by
clause (b) of Section 8.04;



     (f) any Lien permitted by Section 8.15 hereunder;



     (g) any transfer of receivables without recourse;



     (h) any assignment of rents, profits and/or cash flows derived from particular real estate
given as additional security to a mortgage or security interest on such real estate permitted by
this Section 8.05, provided, that the mortgage or security interest encumbers only the real
property in question;



     (i) any financing statement perfecting a security interest permitted by this Section 8.05;



     (j) easements, restrictions, minor title irregularities and similar matters having no adverse
effect as a practical matter on the ownership or use of the Borrower’s or any Subsidiary’s real
property;



     (k) any mortgage, security interest and Lien securing any Debt incurred to the Banks under
this Agreement;



     (l) subject to Section 8.15 of this Agreement, any Lien granted by FCCC to secure Indebtedness
permitted by Section 8.04(g);



     (m) subject to Section 8.15 of this Agreement, any Lien granted by a Subsidiary of the
Borrower to secure Indebtedness of such Subsidiary permitted by Section 8.04(h), provided,
that the Lien is limited solely to those assets being acquired with such Indebtedness;



     (n) any Lien on assets securing Indebtedness permitted under Section 8.04(i),
provided, that any such Lien shall only secure the obligations that it secures on the date
of the applicable Permitted Acquisition and does not extend to any other property of any Subsidiary
of the Borrower; and



     (o) any sale, assignment or other transfer by FCCC of all or any portions of the loans, bonds,
promissory notes or other evidences of Indebtedness originated or acquired by FCCC in the ordinary
course of its business.



     SECTION 8.06. LOANS RECEIVABLE. The Borrower will not and will not permit any Subsidiary
to knowingly make or have outstanding at any time to any third party, any advance or loan of any
kind other than:



-40-









 





     (a) any loan secured by mortgages on real estate and not exceeding eighty per cent (80%) of
the value of the real estate as of the date the mortgage is incurred and as appraised by a
nationally recognized appraiser on or about such date;



     (b) any loan from the Borrower to any of its Subsidiaries or from a Subsidiary of the Borrower
to another Subsidiary of the Borrower or from a Subsidiary to the Borrower; provided, that
(i) such loans shall be made only in the ordinary course of business, (ii) any such loan from a
Subsidiary to the Borrower shall be subordinated in all respects to the Borrower’s Debt to the
Banks on such terms and conditions as may be satisfactory to the Banks, and (iii) Borrower shall
not cause or permit any Subsidiary to take any action to enforce payment of any loan made by the
Subsidiary to another Subsidiary without the prior written consent of the Banks;



     (c) any advance or loan made in the normal course of business of acquiring properties for, or
selling or developing properties of, the Borrower or any Subsidiary;



     (d) any Permitted Non-Affiliate Loan, provided, that (i) such Permitted Non-Affiliate
Loan is secured either by (A) a pledge of all or substantially all of the equity interests in the
Non-Affiliated Entity that owns the Non-Affiliate Construction Project or (B) a first or second
priority mortgage lien on the Non-Affiliate Construction Project, and (ii) the aggregate
outstanding principal amount of all such Permitted Non-Affiliate Loans shall not exceed
$200,000,000 at any time; and



     (e) any Indebtedness, whether secured or unsecured, issued by non-affiliated third parties to
FCCC as lender, up to a maximum principal amount outstanding at any time of $200,000,000. For
purposes of calculating the maximum principal amount of Indebtedness outstanding on the relevant
date of calculation, the following Indebtedness that is outstanding on such date of calculation
will not be included in such calculation: (i) any Indebtedness that FCCC has assigned to other
non-affiliated third parties, (ii) any fully-funded, non-revolving Indebtedness that FCCC has
participated out to non-affiliated third parties, but only to the extent such Indebtedness has been
insured by the Federal Housing Administration (or any successor to such agency), and (iii) the
aggregate principal amount of all loans made by FCCC to non-affiliated third parties as permitted
by Section 8.06(a) of this Agreement.



     SECTION 8.07. GUARANTEES. The Borrower will not and will not permit any Subsidiary to
pledge its credit or property in any manner for the payment or other performance of Indebtedness,
contract or other obligation of another (including, without limitation, the Indebtedness of the
Parent under the Senior Notes), whether as guarantor (whether of payment or of collection), surety,
co-maker, endorser or by agreeing conditionally or otherwise to make any purchase, loan or
investment in order thereby to enable another to prevent or correct a default of any kind, or
otherwise, except for:



     (a) endorsements of negotiable instruments for deposit or collection or similar transactions
in the normal course of business;



     (b) any guarantee set forth on Schedule 9.22 as of March 22, 2004;



-41-









 





     (c) any indemnity or guarantee of a surety bond for the performance by a customer of the
Borrower or any Subsidiary of such customer’s obligations under a land development contract;



     (d) any unsecured guarantee by the Borrower or any of its Subsidiaries of the equity
investment or performance of a Subsidiary (other than any Indebtedness of such Subsidiary incurred
for borrowed money) in connection with a real estate project solely in favor of a partner or a
member, or a partnership or limited liability company in which such Subsidiary is a general partner
or a member, as applicable, when the Borrower or such Subsidiary, as the case may be, deems it to
be in its best interest not to be a partner, a member or have a direct interest in the partnership
or the limited liability company, as applicable;



     (e) any guarantee or indemnity by the Borrower or any of its Subsidiaries for fraud,
misappropriation, misapplication or environmental problems, as are usual and customary in
commercial mortgage loan transactions entered into by the Borrower and/or its Subsidiaries,
provided, that such a guarantee or indemnity may be given by the Borrower or a Subsidiary,
but not both (unless such Subsidiary is also the borrower in the particular commercial mortgage
loan transaction), in connection with any particular commercial mortgage loan transaction;



     (f) any guarantee by the Borrower of an unsecured hedge agreement entered into by a Subsidiary
and with a maturity date of not more than twelve (12) months following the date of such hedge
agreement; and



     (g) subject to the limitations set forth in Section 8.04(c), any guarantee entered into by the
Borrower or a Subsidiary of the Borrower in connection with a Hedge Agreement permitted under such
Section 8.04(c).



     SECTION 8.08. AMENDMENT OF ARTICLES OF INCORPORATION AND/OR REGULATIONS. The Borrower
will not amend, modify or supplement its articles of incorporation or its code of regulations in
any material respect that would be detrimental to the performance by the Borrower of its
obligations under this Agreement or the Notes or the rights of the Agents or the Banks under this
Agreement or the Notes.



     SECTION 8.09. FISCAL YEAR. Except as required by law, or required in connection with a
transaction permitted under Section 8.02 hereof, the Borrower will not change its fiscal year
without the consent of the Banks, which consent shall not be unreasonably withheld.



     SECTION 8.10. REGULATION U. The Borrower will not, and will not permit its Subsidiaries
to, directly or indirectly, (a) apply any part of the proceeds of any Loan to the purchasing or
carrying of any “margin stock” within the meaning of Regulations T, U or X of the Federal Reserve
Board, or any regulations, interpretations or rulings thereunder, (b) extend credit to others for
the purpose of purchasing or carrying any such margin stock, or (c) retire Indebtedness which was
incurred to purchase or carry any such margin stock.



     SECTION 8.11. NO PLEDGE. (a) The Borrower will not, and will not permit any of its
Subsidiaries to, sell, assign, pledge or otherwise dispose of or encumber any of its or their
partnership interests or other equity interests in any of its or their Subsidiaries, except as
permitted under Section 8.02, and except that the Borrower and each Subsidiary shall be



-42-









 




permitted
to pledge its stock or other ownership interests in any of its or their Subsidiaries that is a
single asset or special purpose entity (each, a “Pledged Subsidiary”) to secure the following:





     (i) additional or mezzanine Indebtedness incurred with respect to a project encumbered
by a first mortgage at the time the additional or mezzanine Indebtedness is incurred, so
long as such additional or mezzanine Indebtedness is permitted under Section 8.04 of this
Agreement; provided, that the sum of the then existing Indebtedness with respect to
such project plus such additional or mezzanine Indebtedness does not exceed eighty
percent (80%) of the appraised value of the project at the time such additional or mezzanine
Indebtedness is incurred; or




     (ii) primary Indebtedness (or the re-financing thereof) incurred solely with respect to
the acquisition of real property or for construction or redevelopment purposes, so long as
such primary Indebtedness is permitted under Section 8.04 of this Agreement,
provided, that such primary Indebtedness (or the re-financing thereof) does not
exceed one hundred percent (100%) of the appraised value of the acquired property at the
time of such financing or re-financing, as applicable.



     (b) In addition to the foregoing, except to the extent permitted by Section 8.15(b)(i) of this
Agreement (i) such pledges of stock or other ownership interests in a Pledged Subsidiary may only
be made to secure Indebtedness incurred with respect to a project owned or to be acquired by such
Pledged Subsidiary and not to secure Indebtedness incurred with respect to a project owned or to be
acquired by any other Subsidiary; (ii) such pledges of stock or other ownership interests in a
Pledged Subsidiary given to secure Indebtedness described in Section 8.11(a)(i) above may only
secure the additional or mezzanine Indebtedness being incurred with respect to such project, and
(iii) such pledges of stock or other ownership interest in a Pledged Subsidiary given to secure
Indebtedness described in Section 8.11(a)(ii) above may only secure the primary Indebtedness being
incurred with respect to the acquisition of such real property or such construction or
redevelopment purposes.



     (c) The Borrower will deliver to the Agents and the Banks an updated schedule in the form of
Schedule 9.9 to the Guaranty listing all of the properties as to which a pledge of stock or other
ownership interest has been provided to a lender in accordance with Section 8.11, within forty-five
(45) days after each Fiscal Quarterly Date.



     (d) Notwithstanding the foregoing, any Subsidiary of the Borrower may pledge any stock or
other ownership interests it acquires in a Multi-Asset Acquisition to secure the Indebtedness
permitted to be incurred by such Subsidiary under Sections 8.04(h) and (i), provided, that
the pledge is limited solely to the stock or other ownership interest being acquired and the pledge
is limited to the obligations that it secures on the date of the applicable Multi-Asset Acquisition
and does not extend to any other stock or ownership interest held by such Subsidiary or any other
Subsidiary of the Borrower.



     SECTION 8.12. TRANSACTIONS WITH AFFILIATES. Except for loans permitted by Section 8.06 of
this Agreement, the Borrower will not and will not permit any of its Subsidiaries to, enter into
any transaction or series of transactions with any Affiliate other than in the ordinary course of
business and on terms and conditions substantially as favorable as would be obtainable



-43-









 




by the
Borrower or such Subsidiary, at the time, in a comparable arm’s-length transaction with a Person
other than an Affiliate.




     SECTION 8.13. DEBT SERVICE COVERAGE RATIO. The Borrower will not permit the Debt Service
Coverage Ratio in each case for the Test Period ending on each Fiscal Quarterly Date to be less
than 1.30:1.00.



     SECTION 8.14(A). RESTRICTIONS ON DISTRIBUTIONS DURING AN EVENT OF DEFAULT OTHER THAN A PAYMENT
DEFAULT. If any Event of Default has occurred and is continuing, or if any Event of Default would occur
as a result of a Distribution (as defined below), other than a Payment Default, the Borrower shall
not directly or indirectly declare, make, or pay any Dividends in respect of its Capital Stock, or,
notwithstanding any other provision of the Agreement to the contrary, make any loans or advances to
the Parent (any such Dividends, loans, or advances are referred to hereinafter as “Distributions”)
in excess of the sum of the amounts sufficient to pay, when due, all interest payments in respect
of the Senior Notes and the amounts sufficient to pay, when due, all taxes of the Parent
(collectively, “Permitted Distributions”); provided, that any Permitted Distributions shall
be applied by the Parent strictly to the permitted uses specified above.



     SECTION 8.14(B). RESTRICTIONS ON DISTRIBUTIONS DURING A PAYMENT DEFAULT. In the event of
and during the continuance of any Payment Default, or if a Payment Default would occur as a result
of a Distribution, the Borrower shall not directly or indirectly declare or pay any Distributions
to the Parent.



     SECTION 8.15. CROSS COLLATERALIZATION AND CROSS DEFAULTS(a) Except as permitted in
this Section 8.15, the Borrower shall not and shall not permit any Subsidiary to:




     (i) cross-default or agree to cross-default any Permitted Debt to this Agreement or the
Debt incurred hereunder;




     (ii) agree to any financial covenants based on the performance of the Borrower under
any Permitted Debt (other than the Debt); or




     (iii) Cross-Collateralize, or agree to Cross-Collateralize Indebtedness.



     (b) Notwithstanding Section 8.15(a) above:




     (i) with respect to construction projects which are constructed in multiple phases
and/or stabilized properties, the Borrower and any Subsidiary shall be permitted to
cross-default and/or Cross-Collateralize any Permitted Debt with other Permitted Debt (other
than, in each case, the Debt under this Agreement), but only if the phases to be
Cross-Collateralized and/or cross-defaulted consist of a single identifiable project;




     (ii) under the construction loan agreement or any other relevant documents (other than
a Completion Guaranty) relating to any Permitted Debt (other than the Debt), any Subsidiary
(but not the Borrower) shall be permitted to cross-default or agree to cross-default such
Permitted Debt with this Agreement or the Debt, provided, that, the



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construction
lender shall not be permitted to call a default under its construction loan agreement or
other relevant documents due to an Event of Default under this Agreement unless the Banks
have provided a written notice of the Event of Default to the Borrower and all applicable
cure periods have lapsed without remedy; provided, further, that the
construction lender shall not, under any circumstances, be permitted to call upon its
Completion Guaranty, if any, due to an Event of Default under this Agreement;




     (iii) with respect to Hedge Agreements and Total Rate of Return Swaps entered into by
FCCC and permitted by this Agreement or the Guaranty, the related documentation may provide
that an Event of Default will constitute an event of default under such Hedge Agreement or
Total Rate of Return Swap, as applicable, provided, that the Hedge Agreement or
Total Rate of Return Swap, as applicable, also provides that the counterparty may not
terminate or exercise any remedy under such Hedge Agreement or Total Rate of Return Swap, as
applicable, on account of any Event of Default unless (1) the Banks have provided a written
notice of the Event of Default to the Borrower, (2) all applicable cure periods have lapsed
without the Event of Default being cured and (3) the Banks may accelerate the maturity of
the Revolving Loans on the basis of the Event of Default;




     (iv) to the extent Permitted Debt of the Borrower or any of its Subsidiaries may be
secured under Section 8.05, the Borrower may provide cash or letters of credit as additional
collateral to secure such Permitted Debt;




     (v) Cross-Collateralization that occurs as a result of Liens that may be incurred under
Sections 8.05(m) and (n) in connection with a Multi-Asset Acquisition shall be permitted;




     (vi) to the extent Permitted Debt of a Subsidiary may be secured under Section 8.05,
any Subsidiary of the Borrower (other than FCCC) may provide a second asset (including,
without limitation, cash, letters of credit or unencumbered real property) to secure
Permitted Debt of such Subsidiary or one other Subsidiary, so long as (A) the value of such
second asset (excluding cash and letters of credit) does not exceed $10,000,000 and (B) the
aggregate value of all such second assets (excluding cash and letters of credit) pledged by
all Subsidiaries (other than FCCC) to secure Permitted Debt does not exceed $40,000,000;




     (vii) FCCC may Cross-Collateralize Indebtedness incurred under one or more Total Rate
of Return Swaps; and




     (viii) FCCC may provide cash, letters of credit or mortgage loans made by FCCC to any
Subsidiary of the Borrower (provided, that any such mortgage loan shall not exceed
80% of the value of the mortgaged property, hereinafter “80% FCCC Loans”), as additional
collateral to secure Permitted Debt owed by the Borrower or any of its Subsidiaries (other
than FCCC), so long as (A) the Permitted Debt may be secured under Section 8.05, (B) the
aggregate amount of all 80% FCCC Loans so provided by FCCC in any single transaction (or
series of related transactions) does not exceed $15,000,000 and (C) as of any date of
determination, the aggregate amount of all 80% FCCC Loans provided by FCCC in all such
transactions outstanding at such date does not exceed the



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sum of $120,000,000 minus the
aggregate value of all unencumbered real property pledged by all Subsidiaries (other than
FCCC) under Section 8.15(b)(vi), as of such date.



     SECTION 8.16. SENIOR NOTES; 2006 PUTTABLE SENIOR NOTES.(a) The Borrower shall not
alter, amend, change or modify the terms of any of the Senior Notes (i) to allow the maturity date
of any of the Senior Notes to be less than ten (10)
years from the respective date of issue, (ii) to provide for payment of interest under any of
the Senior Notes more frequently than quarterly, or (iii) to modify the redemption provisions
contained therein, including adding additional redemption provisions.



     (b) The Borrower shall not alter, amend, change or modify the terms of any of the 2006
Puttable Senior Notes (i) to allow the maturity of any of the 2006 Puttable Senior Notes to be less
than five (5) years from the date of issue, (ii) to provide for payment of interest under any of
the 2006 Puttable Senior Notes more frequently than quarterly, (iii) to provide additional
circumstances pursuant to which holders of the 2006 Puttable Senior Notes may put their Notes to
the Parent or to increase the put rate available to such holders, other than as provided in the
2006 Indenture, or (iv) to permit the Parent to redeem the 2006 Puttable Senior Notes prior to
their maturity.



     SECTION 8.17. CHANGES IN BUSINESS. The Borrower will not, and will not permit any of its
Subsidiaries to, materially alter the character of the business of the Borrower and its
Subsidiaries from that conducted on the Restatement Effective Date.



     SECTION 8.18. ANTI-TERRORISM LAWS. Neither the Borrower nor any of its Subsidiaries shall
be in violation of any law, regulation, or list of any government agency (including, without
limitation, the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the USA
Patriot Act) that prohibits or limits the conduct of business with or the receiving of funds, goods
or services to or for the benefit of any Persons specified therein or that prohibits or limits any
Bank or Agent from making any advances or extensions of credit to the Borrower or from otherwise
conducting business with the Borrower.



ARTICLE IX

REPRESENTATIONS AND WARRANTIES




     Subject only to such exceptions, if any, as may be fully disclosed on Schedule 9.00 hereto
furnished by the Borrower to each Bank prior to the execution and delivery hereof, the Borrower
represents and warrants as follows:



     SECTION 9.01. EXISTENCE. The Borrower is a corporation duly organized and validly
existing in good standing under the laws of the State of Ohio and is duly qualified to transact
business and is in good standing as a foreign corporation in all jurisdictions (other than
jurisdictions in which the nature of the property owned or business conducted, when considered in
relation to the absence of serious penalties, renders qualification as a foreign corporation
unnecessary as a practical matter) where the nature of the property owned and business transacted
by the Borrower render such qualification necessary. Each of the Borrower’s Subsidiaries is duly
organized and existing in good standing in the jurisdiction of its incorporation or formation. The
Borrower and each of its Subsidiaries has full power, authority,



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and legal right to own and operate
its respective properties and to carry on the business in which it engages and intends to engage.




     SECTION 9.02. RIGHT TO ACT. No registration with or approval of any governmental agency
of any kind is required for the due execution and delivery or for the enforceability of this
Agreement and any Note issued pursuant to this Agreement. The Borrower has legal power and right
to execute and deliver this Agreement and any Note issued pursuant to this Agreement and to perform
and observe the provisions of this Agreement and any Note issued pursuant hereto and all such
actions have been duly authorized by all necessary corporate action of the Borrower. By executing
and delivering this Agreement and any Note issued pursuant to this Agreement and by performing and
observing the provisions of this Agreement and any Note issued pursuant hereto, the Borrower will
not violate any existing provision of its Articles of Incorporation, Code of Regulations or any
applicable law or violate or otherwise become in default under any existing contract, agreement,
indenture or other obligation binding upon the Borrower. The officers executing and delivering
this Agreement on behalf of the Borrower have been duly authorized to do so.



     SECTION 9.03. BINDING EFFECT. This Agreement constitutes a valid and binding agreement of
the Borrower, and the Guaranty constitutes a valid and binding agreement of the Parent, in both
cases enforceable in accordance with their respective terms, and the Notes, when executed and
delivered in accordance with this Agreement, will constitute valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms.



     SECTION 9.04. LITIGATION. No litigation or proceeding is pending or being threatened
against the Borrower, the Parent or any Subsidiary before any court or any administrative agency
which might, if successful, be expected to have a Material Adverse Effect on the Borrower or the
Parent. The Internal Revenue Service has not alleged any default by the Borrower, the Parent or
any Subsidiary in the payment of any tax or threatened to make any assessment in respect thereof.



     SECTION 9.05. EMPLOYEE RETIREMENT INCOME SECURITY ACT. No material Plan established or
maintained by the Borrower or any Domestic Subsidiary, which is subject to Part 3 of Subtitle B of
Title I of ERISA, had an accumulated funding deficiency (as such term is defined in Section 302 of
ERISA) as of the last day of the most recent fiscal year of such Plan ended prior to the date
hereof, or would have had an accumulated funding deficiency (as so defined) on such day if such
year were the first year of such Plan to which Part 3 of Subtitle B of Title I of that Act applied,
and no material liability to the PBGC, has been, or is expected by the Borrower or any Domestic
Subsidiary to be, incurred with respect to any such Plan by the Borrower or any Domestic
Subsidiary.



     SECTION 9.06. ENVIRONMENTAL COMPLIANCE. To the actual knowledge of the Borrower, the
Borrower and each Subsidiary are in compliance with any and all Environmental Laws including,
without limitation, all Environmental Laws in all jurisdictions in which the Borrower or any
Subsidiary owns or operates, or has owned or operated, a facility or site, arranges or has arranged
for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts or has accepted for transport any hazardous
substances, solid waste or other wastes or holds or has held any interest in real property or
otherwise, for which failure to comply is likely to result in claims, penalties or fines in excess
of $500,000 for any single claim of



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noncompliance or $5,000,000 in the aggregate for all such
claims and occurrences. No litigation or proceeding arising under, relating to or in connection
with any Environmental Law is pending or threatened against the Borrower or any Subsidiary, any
real property in which the Borrower or any Subsidiary holds or has held an interest or any past or
present operation of the Borrower or any Subsidiary. To the actual knowledge of the Borrower, no
release, threatened release or disposal of hazardous waste, solid waste or other wastes is
occurring, or has occurred, on, under, from, or to any real property in which the Borrower or any
Subsidiary holds any interest or performs any of its operations, in violation of any Environmental
Law that could reasonably be expected to result in claims of liability against the Borrower or any
Subsidiary in excess of $500,000 for any single claim or $5,000,000 in the aggregate for all such
claims. As used in this subsection, “litigation or proceeding” means any demand, claim, notice,
suit, suit in equity, action, administrative action, investigation or inquiry whether brought by
any governmental authority, private person or entity or otherwise.




     SECTION 9.07. SOLVENCY. The Borrower has received consideration which is the reasonable
equivalent value of the obligations and liabilities that the Borrower has incurred to the Banks.
The Borrower is not insolvent as defined in any applicable state or federal statute, nor will the
Borrower be rendered insolvent by the execution and delivery of this Agreement or any Note to the
Banks. The Borrower is not engaged or about to engage in any business or transaction for which the
assets retained by it shall be an unreasonably small capital, taking into consideration the
obligations to the Banks incurred hereunder. The Borrower does not intend to, nor does it believe
that it will, incur debts beyond its ability to pay them as they mature.



     SECTION 9.08. FINANCIAL STATEMENTS. The annual financial statements of the Borrower
prepared as of January 31, 2007, certified by the Borrower’s Chief Financial Officer and heretofore
furnished to each Bank, are true and complete, have been prepared in accordance with GAAP applied
on a basis consistent with those used by the Borrower during its immediately preceding full fiscal
year and fairly present its financial condition as of those dates and the results of its operations
for the periods set forth therein. Since January 31, 2007, there has been no change in the
Borrower’s financial condition, properties or business or in the financial condition, properties or
business of any Subsidiary, in each case that has had or could reasonably be expected to have a
Material Adverse Effect on the Parent or the Borrower and its Subsidiaries taken as a whole.



     SECTION 9.09. DEFAULTS. No Event of Default or Possible Default exists hereunder, nor
will any begin to exist immediately after the execution and delivery hereof.



     SECTION 9.10. OPERATIONS. The Borrower and its Subsidiaries have obtained and continue to possess all permits, licenses
and authorizations the absence of which would materially and adversely affect the Borrower’s or a
Subsidiary’s ability to carry on its business in the ordinary course.



     SECTION 9.11. TITLE TO PROPERTIES; PATENTS, TRADE MARKS, ETC. The Borrower and its
Subsidiaries have good and marketable title to all of their properties and assets, including,
without limitation, the properties and assets reflected in the financial statements referred to in
Section 9.08 (excepting, however, inventory and other immaterial assets, in each case sold or
otherwise disposed of in the ordinary course of business subsequent to the date of such financial
statements). There are no Liens of any nature whatsoever on any of the properties



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or assets of the
Borrower and its Subsidiaries other than such as are permitted under Section 8.05. The Borrower
and its Subsidiaries owns or possesses all the patents, trademarks, service marks, trade names,
copyrights, and licenses and rights with respect to the foregoing necessary for the conduct of
their respective businesses as now conducted, without any known conflict with the valid rights of
others which would be inconsistent with the conduct of its business substantially as now conducted
and as currently proposed to be conducted.




     SECTION 9.12. COMPLIANCE WITH OTHER INSTRUMENTS. The Borrower and, to the best of the
Borrower’s knowledge, each Subsidiary is not in default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions contained in any evidence
of Indebtedness or Contingent Obligations. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, nor compliance with the terms and
provisions hereof will violate the provisions of any applicable law or of any applicable order or
regulations of any governmental authority having jurisdiction over the Borrower or its
Subsidiaries, or will conflict with any material permit, license or authorization, 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 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 Subsidiary.



     SECTION 9.13. MATERIAL RESTRICTIONS. Neither the Borrower, nor the Parent nor any of
their respective Subsidiaries are a party to any agreement or other instrument or subject to any
other restriction which would have a Materially Adverse Effect on the Parent or the Borrower and
its Subsidiaries taken as a whole.



     SECTION 9.14. CORRECTNESS OF DATA FURNISHED. This Agreement and all schedules and
exhibits attached hereto do not contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained herein or therein not misleading; and there is no
fact not otherwise disclosed in writing to the Agent which, to the knowledge of the Borrower, would
have a Material Adverse Effect on the Borrower and its Subsidiaries.



     SECTION 9.15. TAXES. The Borrower, the Parent and each of their respective Subsidiaries has (a) timely filed all
returns required to be filed by it with respect to all taxes, (b) paid all taxes shown to have
become due pursuant to such returns, and (c) paid all other taxes for which a notice of assessment
or demand for payment has been received other than taxes that the Borrower, the Parent or such
Subsidiary is contesting in good faith with appropriate proceedings. All tax returns have been
prepared in accordance with all applicable laws and requirements and accurately reflect in all
material respects the taxable income (or other measure of tax) of the Borrower, the Parent or such
Subsidiary filing the same. The accruals for taxes contained in the financial statements referred
to in Section 9.08 are adequate under GAAP to cover all liabilities for taxes for all periods
ending on or before the date of such financial statements and include adequate provision for all
deferred taxes (including deferred federal taxes), and nothing has occurred subsequent to that date
to make any of such accruals inadequate. All taxes for periods beginning after the date of this
Agreement through and including the Restatement Effective Date have been paid or are adequately
reserved against on the books of the Borrower or the Parent, as applicable. The Borrower, the
Parent and each of their respective Subsidiaries has timely filed all information returns or
reports which are required to be filed and has accurately reported all information required to be
included on such returns or



-49-









 




reports. There are no proposed assessments of taxes against the
Borrower, the Parent or any of their respective Subsidiaries nor proposed adjustments to any tax
return filed that, individually or in the aggregate, would have a Material Adverse Effect on the
Borrower or the Parent.




     SECTION 9.16. COMPLIANCE WITH LAWS. The Borrower and, to the best of the Borrower’s
knowledge, the Parent and each of their respective Subsidiaries is in compliance in all material
respects with all material laws, rules, regulations, court orders and decrees, and orders of any
governmental agency which are applicable to the Borrower, the Parent or their respective
Subsidiaries or to their respective properties.



     SECTION 9.17. REGULATION U, ETC. The Borrower does not own, nor does it have any present
intention of acquiring, any “margin stock” within the meaning of Regulation U (12 CFR Part 221) of
the Board of Governors of the Federal Reserve System (herein called “margin stock”). The proceeds
of the Loans will not be used, directly or indirectly, by the Borrower for the purpose of
purchasing or carrying, or for the purpose of reducing or retiring any Indebtedness or other
liability which was originally incurred to purchase or carry, any margin stock or for any other
purpose which might cause the transactions contemplated hereby to be considered a “purpose credit”
within the meaning of said Regulation U, or which might cause this Agreement to violate Regulation
U, Regulation T, Regulation X or any other regulation of the Board of Governors of the Federal
Reserve System or the Securities Exchange Act of 1934. Upon request, the Borrower will promptly
furnish the Agent with a statement in conformity with the requirements of Federal Reserve Form U-1
referred to in said Regulation U.



     SECTION 9.18. [RESERVED].



     SECTION 9.19. SECURITIES ACT, ETC. Neither the registration of any security under the
Securities Act of 1933, as amended, or any other federal, state or local securities laws, nor the
qualification of the Agreement, the Notes and/or the Guaranty under the Trust Indenture Act of
1939, as amended, is required in connection with the Loans or the issuance and delivery of the
Notes pursuant hereto.



     SECTION 9.20. INVESTMENT COMPANY ACT. The Borrower is not, nor immediately after the
application by the Borrower of the proceeds of each Loan will the Borrower be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.



     SECTION 9.21. INDEBTEDNESS OF SUBSIDIARIES. No Subsidiary has any Indebtedness other than
(a) on terms that limit recourse for the payment thereof to the real property or other assets of
the Subsidiary securing such Indebtedness, provided, that the assets securing such
Indebtedness were acquired or developed with the proceeds of such Indebtedness, (b) such
Indebtedness that is owed by a SPE Subsidiary, or (c) Indebtedness permitted under Section 8.04,
8.06 or 8.07 of this Agreement.



     SECTION 9.22. GUARANTIES.(a) All outstanding guaranties, including, but not limited
to Completion Guaranties, issued by the Parent and the maximum amounts guaranteed pursuant to each
such guaranty are set forth on Schedule 9.22 attached hereto.



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     (b) With respect to each Completion Guaranty set forth on Schedule 9.22, the Parent has
received a budget for the relevant construction project and any interest reserve provided in
connection therewith is available to the construction lender only through project completion and
not through stabilization of the project.



     SECTION 9.23. INDEBTEDNESS. Schedule 9.23 attached hereto sets forth a complete and
accurate list of all Indebtedness, of each of the Parent and the Borrower (other than the Loans and
intercompany Indebtedness), not otherwise disclosed on the most recent financial statements
delivered by the Borrower to the Banks or by the Parent to the Banks, as applicable. All
intercompany Indebtedness of the Parent and the Borrower is subordinated in all respects to the
Borrower’s Debt to the Banks.



     SECTION 9.24. ANTI-TERRORISM LAW COMPLIANCE. Neither the Borrower nor any of its
Subsidiaries is in violation of any law, regulation, or list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control list, Executive Order No. 13224 or the
USA Patriot Act) that prohibits or limits the conduct of business with or the receiving of funds,
goods or services to or for the benefit of any Persons specified therein or that prohibits or
limits any Bank or Agent from making any advances or extensions of credit to the Borrower or from
otherwise conducting business with the Borrower.



ARTICLE X

EVENTS OF DEFAULT




     Each of the following shall constitute an event of default (each an “Event of Default”)
hereunder:



     SECTION 10.01. PAYMENTS. If all or any installment of the principal of, or interest on,
any Note, or any fee provided hereunder shall not be paid in full punctually when due and payable.



     SECTION 10.02. COVENANTS.(a) If the Borrower shall fail or omit to perform or observe
any agreement or other provision contained or referred to in Sections 7.13(a), 7.15, 7.16(a), 7.17
or Article 8 of this Agreement; or



     (b) If the Borrower shall fail or omit to perform or observe any agreement or other provision
(other than those referred to in Sections 10.01 or 10.02(a) hereof) contained or referred to in
this Agreement or any Related Writing that is on the Borrower’s part to be complied with, and the
Borrower shall not have corrected such failure or omission within thirty (30) days after the giving
of written notice thereof to the Borrower by the Agent or any Bank that the specified default is to
be remedied.



     SECTION 10.03. REPRESENTATIONS AND WARRANTIES. If any representation, warranty or
statement made in or pursuant to this Agreement or any Related Writing or any other material
information furnished by the Borrower to the Agents, the Banks or any thereof or any other holder
of any Note, shall be false or erroneous in any material respect.



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



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in
excess of $1,000,000, or, 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 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 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 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.




     SECTION 10.05. TERMINATION OF PLAN. If (a) any Reportable Event occurs and the Banks, in their sole determination, deem such
Reportable Event to constitute grounds (i) for the termination of any Plan by the PBGC or (ii) for
the appointment by the appropriate United States district court of a trustee to administer any Plan
and such Reportable Event shall not have been fully corrected or remedied to the full satisfaction
of the Banks within thirty (30) days after the giving of written notice of such determination to
the Borrower by the Banks or (b) any Plan shall be terminated within the meaning of Title IV of
ERISA or (c) a trustee shall be appointed by the appropriate United States district court to
administer any Plan, or (d) the PBGC shall institute proceedings to terminate any Plan or to
appoint a trustee to administer any Plan.



     SECTION 10.06. DOMESTIC SUBSIDIARY SOLVENCY. If (a) any Domestic Subsidiary shall (i)
generally not pay its debts as such debts become due, or (ii) make a general assignment for the
benefit of creditors, or (iii) apply for or consent to the appointment of a receiver, a custodian,
a trustee, an interim trustee or liquidator of itself or all or a substantial part of its assets,
or (iv) be adjudicated a debtor or have entered against it an order for relief under Title 11 of
the United States Code, as the same may be amended from time to time, or (v) file a voluntary
petition in bankruptcy or file a petition or an answer seeking reorganization or an arrangement
with creditors or seeking to take advantage of any other law (whether federal or state) relating to
relief of debtors, or admit (by answer, by default or otherwise) the material allegations of a
petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding
(whether federal or state) relating to relief of debtors, or (vi) suffer or permit to continue
unstayed and in effect for thirty (30) consecutive days any judgment, decree or order, entered by a
court of competent jurisdiction, which approves a petition seeking its reorganization or appoints a
receiver, custodian, trustee, interim trustee or liquidator of itself or of all or a substantial
part of its assets, or (vii) take or omit to take any other action in order thereby to effect any
of the foregoing or (viii) fail to pay and discharge all lawful taxes, assessments and governmental
charges or levies imposed upon it or its income, profits, or properties, and/or all lawful claims
for labor, materials and supplies, which, if unpaid, might become a lien or charge against such
properties, in all cases before the same shall become in default, or (ix) fail to comply with any
and all Environmental Laws applicable to such Domestic Subsidiary, its properties or activities, or
(x) fail to observe, perform or fulfill any of its obligations, covenants or conditions contained
in any evidence of Indebtedness or Contingent Obligations or other contract, decree, order,
judgment, or instrument to which such Domestic Subsidiary is a party or by which it or its assets
are bound, and (b) any such event or events described in (a) above shall in the reasonable judgment
of the Banks have a Material Adverse Effect on the Borrower.



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     SECTION 10.07. BORROWER’S SOLVENCY. If the Borrower shall (a) discontinue business, or
(b) generally not pay its debts as such debts become due, or (c) make a general assignment for the
benefit of creditors, or (d) apply for or consent to the appointment of a receiver, a custodian, a
trustee, an interim trustee or liquidator of all or a substantial part of its assets, or (e) be
adjudicated a debtor or have entered against it an order for relief under Title 11 of the United
States Code, as the same may be amended from time to time (the “Bankruptcy Code”), or (f) file a
voluntary petition under any chapter or provision of the Bankruptcy Code or file a petition or an
answer seeking reorganization or an arrangement with creditors or seeking to take advantage of any
other law (whether federal or state) relating to
relief of debtors, or admit (by answer, by default or otherwise) the material allegations of a
petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding
(whether federal or state) relating to relief of debtors, or (g) suffer or permit to continue
unstayed and in effect for thirty (30) consecutive days any judgment, decree or order entered by a
court or governmental commission of competent jurisdiction, which assumes custody or control of the
Borrower, approves a petition seeking reorganization of the Borrower or any other judicial
modification of the rights of its creditors, or appoints a receiver, custodian, trustee, interim
trustee or liquidator for the Borrower or of all or a substantial part of its assets, or (h) take
or omit to take any action in order thereby to effect any of the foregoing.



     SECTION 10.08. CHANGE OF OWNERSHIP; CHANGE OF MANAGEMENT EVENT. If a Change of Ownership
Event or a Change of Management Event shall occur.



     SECTION 10.09. JUDGMENTS. If one or more judgments or decrees shall be entered against
the Borrower involving a liability (not paid or fully covered by a reputable and solvent insurance
company) in excess of $10,000,000 for all such judgments or decrees and any such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal within sixty (60)
days from the entry thereof.



     SECTION 10.10. DEFAULT UNDER GUARANTY, SENIOR NOTES OR 2006 PUTTABLE SENIOR NOTES. If
the Parent defaults in the payment or performance of any obligation in the Guaranty or in the
performance of any other agreement, covenant, term or condition in the Guaranty, or 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).



     SECTION 10.11. DEFAULT UNDER SUBORDINATION AGREEMENT. If the Parent defaults in the
performance of any obligation in any Subordination Agreement or in the performance of any other
agreement, covenant, term or condition in any Subordination Agreement (which default shall only be
an Event of Default hereunder when the Agent provides written notice of such default to the Parent
and/or the Borrower).



ARTICLE XI

REMEDIES UPON DEFAULT




     Notwithstanding any contrary provision or inference herein or elsewhere, the Banks may take
any or all of the following actions if any Event of Default occurs and is continuing:



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     SECTION 11.01. OPTIONAL DEFAULTS. If any Event of Default referred to in Sections 10.01, 10.02(a), 10.02(b), 10.03, 10.04, 10.05,
10.06, 10.07 (other than Section 10.07 (e), (f), (g) or (h) (solely as it relates to Section
10.07(a), (b), (c) or (d)) and/or Section 10.08, 10.09, 10.10 (other than an Event of Default (as
defined in the Guaranty) under Section 10(g) or 10(h) of the Guaranty) or 10.11 shall occur, the
Required Banks shall have the right in their discretion, by directing the Agent, on behalf of the
Banks, to give written notice to the Borrower, and to



     (a) terminate the Commitments and the credits hereby established and any letter of credit
which may be terminated in accordance with its terms, in each case, if not theretofore terminated,
and forthwith upon such election the obligations of the Banks, and each thereof, to make any
further Loan or Loans and/or issue further letters of credit hereunder immediately shall be
terminated, and/or



     (b) accelerate the maturity of all of Borrower’s Debt to the Banks (if it is not already due
and payable), whereupon all of Borrower’s Debt to the Banks shall become and thereafter be
immediately due and payable in full without any presentment or demand and without any further or
other notice of any kind, all of which are hereby waived by the Borrower.



     SECTION 11.02. AUTOMATIC DEFAULTS. If any Event of Default referred to in Section
10.07(e), 10.07(f), 10.07(g), 10.07 (h) (solely as it relates to Section 10.07(e), (f) or (g)) or
10.10 (with regard to an Event of Default (as defined in the Guaranty) under Section 10(g) or 10(h)
of the Guaranty) hereof shall occur,



     (a) all of the Commitments and the credits hereby established shall automatically and
forthwith terminate, if not theretofore terminated, and no Bank thereafter shall be under any
obligation to grant any further Loan or Loans and/or issue further letters of credit hereunder, and



     (b) the principal of and interest on all Notes then outstanding, and all of Borrower’s Debt to
the Banks shall thereupon become and thereafter be immediately due and payable in full (if it is
not already due and payable), all without any presentment, demand or notice of any kind, all of
which are hereby waived by the Borrower.



     SECTION 11.03. REMEDIES RELATING TO LETTERS OF CREDIT. In the event the Commitments are
terminated and/or the Debt is accelerated pursuant to Section 11.01 or 11.02 above, the Borrower
shall immediately deposit with the Agent an amount of cash equal to the then aggregate amount of
the stated amounts of all letters of credit outstanding hereunder as security for reimbursement of
any drawings made on any such letters of credit and as collateral for repayment of the Debt or any
part thereof.



     SECTION 11.04. OFFSETS. If there shall occur or exist any Possible Default under Section
10.07 hereof or if the maturity of the Notes is accelerated pursuant to Section 11.01 or 11.02
hereof, each Bank shall have the right at any time to set off against, and to appropriate and apply
toward the payment of, any and all Debt then owing by Borrower to that Bank (including, without
limitation, any participation purchased or to be purchased pursuant to Section 12.12 hereof),
whether or not the same shall
then have matured, any and all deposit balances and all other Indebtedness then held or owing by
that Bank to or for the credit or account of the



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Borrower, all without notice to or demand upon the
Borrower or any other Person, all such notices and demands being hereby expressly waived by the
Borrower.




     SECTION 11.05. APPLICATION OF PAYMENTS. Notwithstanding any other provision of this
Agreement, upon the occurrence and during the continuance of an Event of Default, the Borrower
waives any right it may have to direct the application of any and all payments received by the
Agent or the Banks on account of the Debt and the Borrower agrees that the Agent and each Bank
shall have the right, in its sole and absolute discretion, to apply and re-apply any and all such
payments in such manner as the Agent or such Bank may deem advisable, subject to the Pro rata
sharing of any such payments among the Banks.



ARTICLE XII

THE AGENT




     SECTION 12.01. APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably designates and
appoints KeyBank National Association as the Agent of such Bank to act as specified in this
Agreement and each such Bank hereby irrevocably authorizes KeyBank National Association to take
such action as the Agent on its behalf and to exercise such powers and perform such duties
hereunder as are expressly delegated to the Agent by the terms of this Agreement or any Related
Writing, together with such other powers as are reasonably incidental thereto. The Agent agrees to
act as such upon the express conditions contained in this Article XII. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth in this Agreement, or any fiduciary relationship
with any Bank or participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into, created by or arise under this Agreement or any
Related Writing or otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the Related Writings with reference
to any Agent is not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative relationship between
independent contracting parties. Subject to the provisions of Sections 12.03 and 12.11, the Agent
shall administer the Loans in the same manner as it administers its own loans. The provisions of
this Article XII are solely for the benefit of the Agent and the Banks, and neither the Borrower,
the Parent nor any of their respective Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and duties under this
Agreement, the Agent shall act solely as agent of the Banks and the Agent does not assume and shall
not be deemed to have assumed any obligation or relationship of agency or trust with or for the
Borrower, the Parent or their respective Subsidiaries.



     SECTION 12.02. DELEGATION OF DUTIES. The Agent may execute any of its duties under this Agreement, the Notes or any Related Writing
by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties. The Agent shall not
be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it
in the absence of gross negligence or willful misconduct.



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     SECTION 12.03. LIABILITY OF AGENT. Neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by such Person under or in connection with this Agreement, the Notes
or the other Related Writings or the transactions contemplated hereby (except for its or such
Person’s own gross negligence or willful misconduct in connection with its duties expressly set
forth herein) or (b) responsible in any manner to any of the Banks or any participant for any
recitals, statements, representations or warranties made by the Borrower, the Parent, or any of
their respective Subsidiaries or any of their responsible officers, contained in this Agreement or
any Related Writing, or for any failure of the Borrower, the Parent or any of their respective
Subsidiaries or any of their respective officers, or any other party to this Agreement or any
Related Writing to perform its obligations hereunder or thereunder, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Related Writing.
Each Bank by its signature to this Agreement acknowledges and agrees that the Agent has made no
representation or warranty, express or implied, with respect to the creditworthiness, financial
condition or any other condition of Borrower, the Parent or any Subsidiary, or with respect to the
statements contained in any information memorandum furnished in connection herewith or in any other
oral or written communication between the Agent and such Bank. Each Bank represents that it has
made and shall continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of Borrower, the Parent and any Subsidiary in connection with the
extension of credit hereunder, and agrees that the Agent has no duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or other information with
respect thereto (other than such notices as may be expressly required to be given by Agent to the
Banks hereunder), whether coming into its possession before the granting of the first Loans or at
any time or times thereafter. The Agent shall not be under any obligation to any Bank or
participant to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any Related Writing, or to inspect the
properties, books or records of the Parent, the Borrower, any of their Subsidiaries or any
Affiliate of any of them.



     SECTION 12.04. RELIANCE BY AGENT. (a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, signature, notice, consent,
certificate, affidavit, letter, cablegram, facsimile transmission, telex or teletype message,
electronic mail message, statement, order or other document or conversation reasonably believed by
it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the Borrower or the Parent),
independent accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or the Notes or any
Related Writing unless it shall first receive such advice or concurrence of the Required Banks or
the Super Majority Banks, as it deems
appropriate, and, if it so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement, the Notes or the other Related Writings in
accordance with a request or consent of the Required Banks or the Super Majority Banks, as
applicable, and such request and any action or failure to act pursuant thereto shall be binding
upon all the Banks.



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     (b) For purposes of determining compliance with the conditions specified in Article VI, each
Bank that has signed this Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Bank unless the Agent shall have received written
notice from such Bank prior to the Restatement Effective Date or from an Additional Bank prior to
the applicable Additional Bank Assumption Effective Date, as applicable, specifying its objection
thereto.



     SECTION 12.05. RESIGNATION OR REMOVAL OF THE AGENT; SUCCESSOR AGENT. The Agent may resign
upon twenty (20) days’ notice to the Banks or the Agent may be removed by the vote of the Required
Banks (excluding the Agent). Upon the resignation or removal of the Agent, the Required Banks
shall appoint from among the Banks a successor Agent for the Banks subject to prior approval of the
Borrower so long as no Possible Default or Event of Default then exists (such approval not to be
unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Agent, and the term “Agent” shall include such successor agent effective
upon its appointment, and the resigning or removed Agent’s rights, powers and duties as the Agent
shall be terminated, without any other or further act or deed on the part of the former Agent or
any of the parties to this Agreement. After the resignation or removal of the Agent hereunder, the
provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. In the event no successor agent has been
appointed by the end of such twenty (20) day period in the case of a resignation or upon the
removal of the Agent by the Required Banks (excluding the Agent), the resignation or removal of the
Agent shall become effective and the Required Banks shall perform the duties of the Agent until a
successor agent is appointed.



     SECTION 12.06. NOTE HOLDERS. The Agent may deem and treat the payee of any Note as the
holder thereof for all purposes unless and until written notice of the assignment, transfer or
endorsement thereof, as the case may be, shall have been filed with the Agent. Any request,
authority or consent of any Person or entity who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent
holder, transferee, assignee or indorsee, as the case may be, of such Note or of any Note or Notes
issued in exchange therefor.



     SECTION 12.07. CONSULTATION WITH COUNSEL. (a) The Agent may consult with legal counsel reasonably selected by it and shall not be liable
for any action taken or suffered in good faith by it in accordance with the opinion of such
counsel.



     (b) Should the Agent (i) employ counsel for advice or other representation (whether or not any
suit has been or shall be filed) with respect to this Agreement, the Notes or any of the Related
Writings, or (ii) commence any proceeding or in any way seek to enforce its rights or remedies
under this Agreement, the Notes or any Related Writing, each Bank, upon demand therefor from time
to time, shall contribute its share (based on its Pro rata share) of the reasonable costs and/or
expenses of any such advice or other representation, enforcement or acquisition, including, but not
limited to, fees of receivers, court costs and fees and expenses of attorneys to the extent not
otherwise reimbursed by Borrower; provided, that the Agent shall not be entitled to
reimbursement of its attorneys’ fees and expenses incurred in connection with the resolution of
disputes between the Agent and the other Banks unless the Agent shall be the



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prevailing party in
any such dispute and, provided, further, that the Agent shall only be entitled to
such reimbursement from those Banks that were involved in the dispute with the Agent. Any loss of
principal and interest resulting from any Event of Default shall be shared by the Banks in
accordance with their respective Pro rata shares.




     SECTION 12.08. DOCUMENTS. The Agent shall not be under a duty to examine into or pass
upon the validity, effectiveness, genuineness or value of this Agreement, the Notes or any other
Related Writing furnished pursuant hereto or in connection herewith or the value of any collateral
obtained hereunder, and the Agent shall be entitled to assume that the same are valid, effective
and genuine and what they purport to be.



     SECTION 12.09. KNOWLEDGE OF DEFAULT. It is expressly understood and agreed that the Agent
shall not be deemed to have knowledge or notice of the occurrence of any Possible Default or Event
of Default hereunder (other than the failure to make available to the Agent any principal of or
interest on the Loans for the account of the Banks as required under this Agreement and the Notes),
unless the Agent has actually received written notice from a Bank or the Borrower describing such
Possible Default or Event of Default and stating that such notice is a “notice of default.” In the
event that the Agent receives such a notice, the Agent shall give prompt notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Banks; provided, that unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Possible Default or Event of
Default as it shall deem advisable or in the best interests of the Banks.



     SECTION 12.10. INDEMNIFICATION. Whether or not the transactions contemplated hereby are
consummated, the Banks agree to indemnify upon demand the Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the Borrower’s obligation to do so), Pro
rata according to the respective principal amounts of their Commitment from and against any and all
liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in its capacity as agent in any way relating to or arising out of this Agreement,
the Notes or any Related Writing, or the transactions contemplated hereby or thereby, or any action
taken or omitted to be taken by the Agent under or in connection with the foregoing,
provided, that no Bank shall be liable to the Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent determined in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from the Agent’s gross negligence, willful misconduct or from any
action taken or omitted by the Agent in any capacity other than as agent under this Agreement,
provided, that no action taken in accordance with the directions of the Required Lenders or
the Super Majority Lenders, as applicable, shall be deemed to constitute gross negligence or
willful misconduct for purposes of this Section 12.10. If any indemnity furnished to the Agent for
any purpose shall, in the reasonable opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this Section 12.10 shall
survive the termination of this Agreement, the payment of the Debt and the resignation of the
Agent. Without limitation of the foregoing, each Bank shall reimburse the Agent upon demand for
its Pro rata share of any costs or out-of-pocket expenses



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(including reasonable attorneys’ fees)
incurred by the Agent in connection with the preparation, negotiation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement, any Related Writing or any document contemplated by or referred to herein, to the extent
that the Agent is not reimbursed for such costs or expenses by or on behalf of the Borrower.




     SECTION 12.11. AGENTS IN THEIR INDIVIDUAL CAPACITIES. KeyBank National Association,
National City Bank and their respective Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally engage in any kind
of banking, trust, financial advisory, underwriting or other business with each of the Parent, the
Borrower and their respective Subsidiaries as though KeyBank National Association or National City
Bank, as applicable, were not an Agent and, without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, KeyBank National Association, National City Bank or
their respective Affiliates may receive information regarding the Parent, the Borrower or their
Subsidiaries (including information that may be subject to confidentiality obligations in favor of
the Parent, the Borrower or their Subsidiaries) and acknowledge that the Agents shall be under no
obligation to provide such information to them. With respect to its Loans, each of KeyBank
National Association and National City Bank and their respective Affiliates shall have the same
rights and powers under this Agreement as any other Bank and may exercise such rights and powers as
though it were not the Agent or the Syndication Agent, as the case may be, and the terms “Bank” and
“Banks” include KeyBank National Association and National City in their individual capacities.



     SECTION 12.12. EQUALIZATION PROVISION. Each Bank agrees with the other Banks that if it at any time shall obtain any Advantage over the
other Banks or any thereof in respect of Borrower’s Debt to the Banks including without limitation
in respect of the letters of credit described in Schedule 3.01 hereof (except as to Swing Loans
prior to the Agent’s giving of notice to participate and under Sections 4.06, 4.07, 4.08, 4.09,
4.10 and/or 4.11, hereof), it will purchase from the other Banks, for cash and at par, such
additional participation in Borrower’s Debt to the Banks as shall be necessary to nullify the
Advantage. If any said Advantage resulting in the purchase of an additional participation as
aforesaid shall be recovered in whole or in part from the Bank receiving the Advantage each such
purchase shall be rescinded, and the purchase price restored (but without interest unless the Bank
receiving the Advantage is required to pay interest on the Advantage to the Person recovering the
Advantage from such Bank) ratably to the extent of the recovery. Each Bank further agrees with the
other Banks that if it at any time shall receive any payment from or on behalf of Borrower on any
Indebtedness owing by the Borrower to that Bank by reason of offset of any deposit or other
Indebtedness, it will apply such payment first to any and all Debt owing by Borrower to that Bank
pursuant to this Agreement (including, without limitation, any participation purchased or to be
purchased pursuant to this Section 12.13) until Borrower’s Debt has been paid in full. The
Borrower agrees that any Bank so purchasing a participation from the other Banks pursuant to this
Section may exercise all its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Bank were a direct creditor of the Borrower in the amount of
such participation.



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     SECTION 12.13. NO RELIANCE ON AGENTS’ CUSTOMER IDENTIFICATION PROGRAMS. Each Bank
acknowledges and agrees that neither such Bank, nor any of its Affiliates, participants or
assignees may rely on the Agents, or either of them, to carry out such Bank’s, Affiliate’s,
participant’s or assignee’s customer identification program, or other obligations required or
imposed under or pursuant to the USA Patriot Act or the regulations thereunder or any other
Anti-Terrorism Law, including, without limitation, any identity verification procedures, any record
keeping, any comparisons with government lists, any customer notices or any other procedures
required under the USA Patriot Act, its regulations or any other Anti-Terrorism Law.



ARTICLE XIII

MISCELLANEOUS




     SECTION 13.01. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of the
Agent or any Bank in exercising any right, power or privilege hereunder and no omission or course
of dealing on the part of Agent, any Bank or the holder of any Note in exercising any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The remedies herein provided are cumulative and in
addition to any other rights, powers or privileges that the Agent or any Bank would otherwise have.
No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances or constitute a waiver of the rights of
the Agent or the Banks to any other or further action in any circumstances without notice or
demand.



     SECTION 13.02. AMENDMENTS, CONSENTS. No amendment, modification, termination, or waiver of any provision of this Agreement or of the
Notes or of the Guaranty, nor any consent to any variance therefrom, shall be effective unless the
same shall be in writing and signed by the Required Banks, the Super Majority Banks or all of the
Banks, as appropriate, under this Section 13.02, and any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given. Unanimous consent of
the Banks, or, if there is any borrowing hereunder, the holders of one hundred percent (100%) (by
outstanding principal amount) of the Notes (excluding the Swing Line Notes), shall be required with
respect to (a) an increase in any Commitment, an increase in the Maximum Swing Line Amount, the
extension of maturity of the Notes (other than the Swing Line Notes) or the payment date of
interest thereunder, (b) any reduction in the rate of interest on the Notes (other than the Swing
Line Notes), or in any amount of principal or interest due on any Note (other than the Swing Line
Notes) or in the amount of fees or other amounts due to the Banks (or any of them) hereunder or
under the Related Writings or any change in the manner of Pro rata application of any payment made
by the Borrower to the Banks hereunder, or any change in amortization schedules, or in the manner
of calculating fees or prepayment penalties, (c) any change in any percentage voting requirements
in this Agreement, (d) the release of all of the value of the Guaranty, or any material amendment
or modification thereto, or any other guarantee in favor of the Banks, provided, that only
the consent of the Required Banks will be required to increase the outstanding and unredeemed
principal amount of Indebtedness that may be incurred by the Parent under the Indenture and to
modify the provisions of, and definitions in the Guaranty related thereto, (e) any amendment to the
definitions of Required Banks, Super Majority Banks



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or Reference Banks set forth herein or to this
Section 13.02, or (f) any material amendment to any representation, warranty, covenant, Possible
Default, Event of Default or remedy provided herein or under any Related Writing. The consent of
the holders of eighty percent (80%) (by outstanding principal amount) of the Notes (excluding the
Swing Line Notes) (the “Super Majority Banks”) shall be required for any amendments, modifications
or other changes to Section 8.13 hereof or Section 9.14 of the Guaranty. Notice of amendments or
consents ratified by the Banks hereunder shall immediately be forwarded by the Agent to all Banks,
provided, that, notwithstanding anything contained herein to the contrary, the Agent and
the Swing Line Lenders shall have the right to decrease the interest rate on the Swing Loans,
extend the maturity of payments on the Swing Loans for ten (10) days beyond the applicable Swing
Loan Maturity Date and decrease the amount of payments on the Swing Loans, without the consent of
any other Banks, other than the other Swing Line Lender and any Bank that has purchased a
participation in such Swing Loans pursuant to Section 2.07(c) hereof. Each Swing Line Lender must
consent to any increase in the Maximum Swing Line Amount. Each Bank or other holder of a Note
shall be bound by any amendment, waiver or consent obtained as authorized by this Section 13.02,
regardless of its failure to agree thereto.




     By its signature hereto, each Bank consents to the terms and provisions of the Amended and
Restated Guaranty, dated as of the date hereof, and issued by the Parent to the Banks, the Agents,
and the Co-Documentation Agents.



     SECTION 13.03. NOTICES. Except as otherwise expressly provided herein, all notices,
requests, demands and other communications provided for hereunder shall be in writing (including
telegraphic, telex, facsimile, transmission or cable communication) and mailed, telexed,
telegraphed, facsimile
transmitted, cabled or delivered, if to the Borrower, addressed to it at the address specified on
the signature pages of this Agreement, if to a Bank, addressed to the address of such Bank
specified on the signature pages of this Agreement and if to the Agents, addressed to them at the
address of the Agent or the Syndication Agent, as applicable, specified on the signature pages of
this Agreement. All notices, statements, requests, demands and other communications provided for
hereunder shall be deemed to be given or made when delivered or forty-eight (48) hours after being
deposited in the mails with postage prepaid by registered or certified mail or delivered to a
telegraph company, addressed as aforesaid, except that notices from the Borrower to the Agent or
the Banks pursuant to any of the provisions hereof shall not be effective until received by the
Agent or the Banks.



     SECTION 13.04. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all costs
and expenses of the Banks and the Agents, and any expenses incurred in connection with the
preparation of this Agreement, the Notes and any Related Writings, including, without limitation
(i) administration and out-of-pocket expenses of the Agent in connection with the administration of
this Agreement, the Notes, the collection and disbursement of all funds hereunder and the other
instruments and documents to be delivered hereunder, (ii) extraordinary expenses of the Agents or
the Banks in connection with the administration of this Agreement,
the Notes and the other
instruments and documents to be delivered hereunder, (iii) the reasonable fees and out-of-pocket
expenses of Thompson Hine LLP, counsel to the Agent, in connection with the negotiation,
preparation, execution and delivery of this Agreement and related matters, and (iv) all costs and
expenses, including reasonable attorneys’ fees and out-of-pocket expenses, in connection with the
restructuring or enforcement of this Agreement,



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the Notes or any Related Writing. In addition, the
Borrower shall pay any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution and delivery of this Agreement or the Notes, and the other
instruments and documents to be delivered hereunder, and agrees to save the Agents and each Bank
harmless from and against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.




     SECTION 13.05. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Borrower made in or pursuant to this Agreement or in any certificate or other
Related Writing in connection herewith shall survive the closing hereof or the making of the Loans
or other transactions in connection with which given.



     SECTION 13.06. OBLIGATIONS SEVERAL; NO FIDUCIARY OBLIGATIONS. The obligations of the
Banks hereunder are several and not joint. Nothing contained in this Agreement and no action taken
by the Agents or the Banks pursuant hereto shall be deemed to constitute the Banks a partnership,
association, joint venture or other entity. No default by any Bank hereunder shall excuse the
other Banks from any obligation under this Agreement; but no Bank shall have or acquire any
additional obligation of any kind by reason of such default. The relationship among the Borrower
and the Banks with respect to this Agreement, any Note and any Related Writing is and shall be
solely that of debtor and creditor, respectively, and no Bank has any fiduciary obligation toward
the Borrower with respect to any such documents or the transactions contemplated thereby.



     SECTION 13.07. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.



     SECTION 13.08. BINDING EFFECT; ASSIGNMENT. (a) This Agreement shall become effective on
the date (the “Restatement Effective Date”) (i) when it shall have been executed by the Borrower,
the Agents and by each Bank and shall have been delivered to the Agent and (ii) when the conditions
set forth in Article VI are met to the satisfaction of, or waived in writing by, the Agent and the
Required Lenders, and thereafter shall be binding upon and inure to the benefit of the Borrower and
each of the Banks and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the prior written
consent of all of the Banks, which consent may be withheld in their sole discretion. Each Bank may
at any time grant participations in any of its rights hereunder or under its Note or Notes to
another commercial bank, financial institution, mutual fund or any institutional “accredited
investor” (as defined in Regulation D of the Securities Act of 1933, as amended), provided,
that in the case of any such participation, the participant shall not have any rights under this
Agreement, the Notes or any Related Writing (the participant’s rights against such Bank in respect
of any such participation to be those set forth in the agreement executed by such Bank in favor of
the participant relating thereto) and all amounts payable by such Bank hereunder shall be
determined as if such Bank had not sold such participation; and provided, further,
that no Bank shall transfer, assign or grant any participation under this Agreement under which the
participant shall have rights to approve any amendment to or waiver of this Agreement or any
Related Writing.



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     (b) Notwithstanding the foregoing, (i) any Bank may assign all or a portion of its Loans
and/or Commitments and its rights and obligations hereunder to an affiliate of such Bank and (ii)
with the consent of the Agent and the Borrower so long as no Possible Default or Event of Default
then exists (which consents shall not be unreasonably withheld or delayed), any Bank may assign all
or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or
more commercial banks, financial institutions (including one or more Banks), mutual funds or
institutional “accredited investors” (as defined in Regulation D of the Securities Act of 1933, as
amended), provided, that (A) any assignment of a Bank’s Loans shall include a ratable part
of such Bank’s Commitment, and (B) the consent of the Agent (which consent shall not be
unreasonably withheld or delayed) shall be required for any assignment of a Commitment to the
extent any letters of credit are outstanding. No assignment pursuant to subsection (ii) of the
immediately preceding sentence shall be in an aggregate amount less than Ten Million Dollars
($10,000,000). If any Bank so sells all or a part of its rights hereunder or under any Note, any
reference in this Agreement or such Note to such assigning Bank shall thereafter refer to such Bank
and to the respective assignee to the extent of their respective interests and the respective
assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same
rights and benefits as it would if it were such assigning Bank. Each assignment pursuant to
Section 13.08(b)(ii) shall be effected by the assigning Bank and the assignee Bank executing a Bank
Assignment and Assumption Agreement substantially in the form of Exhibit G (appropriately
completed). At the time of any such assignment pursuant to Section 13.08(b)(ii), (X) Exhibit A
shall be deemed to be amended to reflect the Commitments
of the respective assignee (which shall result in a corresponding reduction of the Commitment
of the assigning Bank) and of the other Banks (Y) if any such assignment occurs after the
Restatement Effective Date, the Borrower will issue new Notes to the respective assignee and to the
assigning Bank (upon delivery of the existing Note or Notes of such assigning Bank) in conformity
with the requirements of this Agreement and (Z) the Agent shall receive at the time of each such
assignment, from the assigning or assignee Bank, the payment of a nonrefundable assignment fee of
$3,000.



     (c) Notwithstanding any other provisions of this Section 13.08, no transfer or assignment of
the interests or obligations of any Bank hereunder or any grant of participations therein shall be
permitted if such transfer, assignment or grant would require the Borrower to file a registration
Statement with the Securities and Exchange Commission or to qualify the loans under the “Blue Sky”
laws of any State.



     (d) Notwithstanding any other provisions of this Section 13.08, so long as no Event of Default
has occurred and is continuing and the Administrative Agent or the Syndication Agent, as
applicable, has not resigned or been removed pursuant to the provisions of this Agreement, each
Agent agrees that it will not assign or transfer any of its Loans and/or Commitments to the extent
that the amount of the Loans and/or Commitments that such Agent would continue to hold following
such assignment or transfer would be less than ten percent (10%) of the aggregate Loans and/or
Commitments of all of the Banks.



     (e) Notwithstanding any other provision set forth in this Agreement, any Bank may at any time
pledge or assign all or any portion of its rights under this Agreement, the Guaranty and the other
documents executed and delivered in connection therewith (including, without limitation, the Notes
held by it) to any Federal Reserve Bank in accordance with Regulation A of



-63-









 




the Federal Reserve
Board without notice to, or the consent of, the Agents, the Borrower or the Parent,
provided, that no such pledge or assignment or enforcement thereof shall release a Bank
from any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as a
party hereto.




     SECTION 13.09. INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify and hold
harmless the Agents, the Banks and their respective directors, officers, employees and Affiliates
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever including,
without limitation, reasonable fees and disbursements of counsel and settlements costs, which may
be imposed on, incurred by, or asserted against the Agents, the Banks and their respective
directors, officers, employees and Affiliates in connection with any investigative, administrative
or judicial proceeding (whether the Agents and the Banks are or are not designated as a party
thereto) relating to or arising out of this Agreement, the Notes or the other Related Writings, the
transactions contemplated thereby, including, but not limited to, the Permitted Non-Affiliate
Loans, or any actual or proposed use of proceeds hereunder or thereunder, except that neither the
Agents and the Banks nor any directors, officers, employees and Affiliates thereof shall have the
right to be indemnified hereunder for their own gross negligence or willful misconduct. All
obligations under this Section 13.09 shall survive any termination of this Agreement.



     SECTION 13.10. GOVERNING LAW. This Agreement, each of the Notes and any Related Writing
shall be governed by and construed in accordance with the laws of the State of Ohio, without regard
to the principles of conflict of laws and the respective rights and obligations of the Borrower and
the Banks shall be governed by Ohio law.



     SECTION 13.11. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such provision in any
other jurisdiction. The several headings to Sections and subsections herein are inserted for
convenience only and shall be ignored in interpreting the provisions of this Agreement.



     SECTION 13.12. PURPOSE. Each of the Banks represents and warrants to the Borrower that it
is entering into this Agreement with the present intention of acquiring any Note issued pursuant
hereto solely in connection with such Bank’s commercial lending activities and not for the purpose
of distribution or resale, it being understood, however, that each Bank shall at all times retain
full control over the disposition of its assets.



     SECTION 13.13. CONSENT TO JURISDICTION. The Borrower agrees that any action or proceeding
to enforce or arising out of this Agreement may be commenced in the Court of Common Pleas for
Cuyahoga County, Ohio or in the District Court of the United States for the Northern District of
Ohio, and the Borrower waives personal service of process and agrees that a summons and complaint
commencing an action or proceeding in any such court shall be properly served and shall confer
personal jurisdiction over the Borrower if served to the Borrower at the address listed opposite
the signature of the Borrower at the end of this Agreement or as otherwise provided by the laws of
the State of Ohio or the United States.



-64-









 





     SECTION 13.14. ENTIRE AGREEMENT. This Agreement, the Notes, the Related Writings and any
other agreement, document or instrument attached hereto or referred to herein or executed on or as
of the date hereof integrate all the terms and conditions mentioned herein or incidental hereto and
supersede all oral representations and negotiations and prior writings with respect to the subject
matter hereof.



     SECTION 13.15. JURY TRIAL WAIVER. THE BORROWER 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 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 THIS AGREEMENT OR ANY NOTE OR 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.



     SECTION 13.16. SURVIVAL. All indemnities set forth herein shall survive the execution and
delivery of this Agreement and the making and repayment of the Loans and the satisfaction of all
other obligations under this Agreement.



     SECTION 13.17. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Possible Default or an Event
of Default if such action is taken or condition exists, and if a particular action or condition is
expressly permitted under any covenant, unless expressly limited to such covenant, the fact that it
would not be permitted under the general provisions of another covenant shall not constitute a
Possible Default or an Event of Default if such action is taken or condition exists.



     SECTION 13.18. INTERPRETATION. The Borrower, each Agent and each Bank acknowledges that
such party, either directly or through such party’s representatives, has participated in the
drafting of this Agreement, and any applicable rule of construction that ambiguities are to be
resolved against the drafting party shall not be applied in connection with the construction or
interpretation of this Agreement.



     SECTION 13.19. GENERAL LIMITATION OF LIABILITY. No claim may be made by the Borrower, the
Parent, any Subsidiary of the Parent, any Bank, the Agent, the Syndication Agent, any
Co-Documentation Agent or any other Person against the Agent, the Syndication Agent, any
Co-Documentation Agent or any other Bank or the Affiliates, directors, officers, employees,
attorneys or agents of any of them for any damages other than compensatory damages in respect of
any claim for breach of contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, the Notes, the Guaranty or any other Related Writing,
or any act, omission or event occurring in connection therewith; and the Borrower, each Bank, the
Agent, the Syndication Agent and each Co-Documentation Agent



-65-









 




hereby, to the fullest extent
permitted under applicable law, waives, releases and agrees not to sue or counterclaim upon any
such claim for any special, consequential or punitive damages, whether or not accrued and whether
or not known or suspected to exist in its favor.




     SECTION 13.20. USA PATRIOT ACT NOTIFICATION.


 Each Bank, each Agent (for itself and not on behalf of any Bank) and each Co-Documentation
Agent (for itself and not on behalf of any Bank) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act, such Bank, such Agent and such Co-Documentation Agent are
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender,
such Agent or such Co-Documentation Agent, as applicable, to identify the Borrower in accordance
with the USA Patriot Act.




[Remainder
of page intentionally left blank; signature pages follow]





-66-










 








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



	 	 	 	 	 
	Address:	 	FOREST CITY RENTAL
PROPERTIES CORPORATION
	1100 Terminal Tower	 	 
	Cleveland, Ohio 44113
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ THOMAS G. SMITH
	 

	 	 	 	 
	 

	 	 	 	Name: Thomas G. Smith
	 

	 	 	 	Title: Vice President and Assistant
Secretary
	 
	 	 	 	 
	Address:	 	KEYBANK NATIONAL ASSOCIATION
	127 Public Square	 	individually and as Agent
	Cleveland, Ohio 44114
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ JOSHUA MAYERS
	 

	 	 	 	 
	 

	 	 	 	Name: Joshua Mayers
	 

	 	 	 	Title: Assistant Vice President
	 
	 	 	 	 
	Address:	 	NATIONAL CITY BANK individually and as
	1900 East Ninth Street	 	Syndication Agent
	Cleveland, Ohio 44114
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ RONALD J. MAJKA
	 

	 	 	 	 
	 

	 	 	 	Name: Ronald J. Majka
	 

	 	 	 	Title: Senior Vice President
	 
	 	 	 	 
	Address:	 	THE HUNTINGTON NATIONAL BANK
	917 Euclid Avenue
	 	 	 	 
	Mailcode – CM17
	 	 	 	 
	Cleveland, Ohio 44115

	 	By:
	 	/s/ RYAN J. TERRANO
	 

	 	 	 	 
	 

	 	 	 	Name: Ryan J. Terrano
	 

	 	 	 	Title: Vice President






[Signature page to Amended and Restated Credit Agreement]




 









 








	 	 	 	 	 
	Address:	 	U.S. BANK NATIONAL ASSOCIATION
	Attn: Dennis J. Redpath, SVP
	 	 	 	 
	Real Estate Banking Group
	 	 	 	 
	209 South LaSalle Street, Suite 410
	 	 	 	 
	Chicago, Illinois 60604

	 	By:
	 	/s/ DENNIS J. REDPATH
	 

	 	 	 	 
	 

	 	 	 	Name: Dennis J. Redpath
	 

	 	 	 	Title: Senior Vice President
	 
	 	 	 	 
	Address:	 	COMERICA BANK
	500 Woodward Ave., 7th Floor
	 	 	 	 
	MC 3256
	 	 	 	 
	Detroit, Michigan 48226

	 	By:
	 	/s/ CHARLES WEDDELL
	 

	 	 	 	 
	 

	 	 	 	Name: Charles Weddell
	 

	 	 	 	Title: Account Officer
	 
	 	 	 	 
	Address:	 	FIRST MERIT BANK
	101 West Prospect Avenue
	 	 	 	 
	Suite 350
	 	 	 	 
	Cleveland, Ohio 44115

	 	By:
	 	/s/ MICHAEL J. MASON
	 

	 	 	 	 
	 

	 	 	 	Name: Michael J. Mason
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	Address:	 	LASALLE BANK NATIONAL ASSOCIATION
	Institutional Real Estate
	 	 	 	 
	135 South LaSalle Street,
	 	 	 	 
	Suite 1225
	 	 	 	 
	Chicago, Illinois 60603
	 	 	 	 
	 

	 	By:
	 	/s/ MARILYN M. TOMFORDHE
	 

	 	 	 	 
	 

	 	 	 	Name: Marilyn M. Tomfordhe
	 

	 	 	 	Title: Senior Vice President
	 
	 	 	 	 
	Address:	 	MANUFACTURERS AND TRADERS TRUST COMPANY
	One Fountain Plaza
	 	 	 	 
	Buffalo, New York 14203-1495
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ JON WERBITSKY
	 

	 	 	 	 
	 

	 	 	 	Name: Jon Werbitsky
	 

	 	 	 	Title: Vice President






[Signature page to Amended and Restated Credit Agreement]





 









 








	 	 	 	 	 
	Address:	 	FIFTH THIRD BANK
	600 Superior Avenue East
	 	 	 	 
	Cleveland, Ohio 44114
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ ROY C. LANCTOT
	 

	 	 	 	 
	 

	 	 	 	Name: Roy C. Lanctot
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	Address:	 	BANK OF AMERICA, N.A.
	One Federal Street
	 	 	 	 
	Mail Code: MA5-503-04-16
	 	 	 	 
	Boston, Massachusetts 02110
	 	 	 	 
	 

	 	By:
	 	/s/ JAMES J. MAGALDI
	 

	 	 	 	 
	 

	 	 	 	Name: James J. Magaldi
	 

	 	 	 	Title: Senior Vice President
	 
	 	 	 	 
	Address:	 	CHARTER ONE BANK, N.A.
	Attn: Florentina Djulvezan, V.P.
	 	 	 	 
	Commercial Real Estate
	 	 	 	 
	1215 Superior Avenue, 6th Floor
	 	 	 	 
	Cleveland, Ohio 44114
	 	 	 	 
	 

	 	By:
	 	/s/ FLORENTINA DJULVEZAN
	 

	 	 	 	 
	 

	 	 	 	Name: Florentina Djulvezan
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	Address:	 	BMO Capital Markets Financing, Inc.
	Attn: Virginia Neale,
	 	 	 	 
	Vice President
	 	 	 	 
	111 West Monroe Street
	 	 	 	 
	10th Floor West
	 	 	 	 
	Chicago, Illinois 60603
	 	 	 	 
	 

	 	By:
	 	/s/ VIRGINIA NEALE
	 

	 	 	 	 
	 

	 	 	 	Name: Virginia Neale
	 

	 	 	 	Title: Vice President






[Signature page to Amended and Restated Credit Agreement]







 









 








	 	 	 	 	 
	Address:	 	CALYON NEW YORK BRANCH
	1301 Avenue of the Americas
	 	 	 	 
	New York, New York 10019
	 	 	 	 
	 

	 	By:
	 	/s/ DANIEL J. REDDY
	 

	 	 	 	 
	 

	 	 	 	Name: Daniel J. Reddy
	 

	 	 	 	Title: Director
	 
	 	 	 	 
	 

	 	By:
	 	/s/ PAUL T. RAGUSIN
	 

	 	 	 	 
	 

	 	 	 	Name: Paul T. Ragusin
	 

	 	 	 	Title: Director






[Signature page to Amended and Restated Credit Agreement]





 









 





EXHIBIT A




COMMITMENTS




	 	 	 	 	 
	Bank	 	Maximum Amount	 
	 
	 	 	 	 
	KeyBank National Association
	 	$	70,000,000	 
	 
	 	 	 	 
	National City Bank
	 	$	70,000,000	 
	 
	 	 	 	 
	Bank of America, N.A.
	 	$	55,000,000	 
	 
	 	 	 	 
	LaSalle Bank National Association
	 	$	55,000,000	 
	 
	 	 	 	 
	U.S. Bank National Association
	 	$	50,000,000	 
	 
	 	 	 	 
	Fifth Third Bank
	 	$	45,000,000	 
	 
	 	 	 	 
	Manufacturers and Traders Trust Company
	 	$	45,000,000	 
	 
	 	 	 	 
	The Huntington National Bank
	 	$	45,000,000	 
	 
	 	 	 	 
	Charter One Bank, N.A.
	 	$	40,000,000	 
	 
	 	 	 	 
	BMO Capital Markets Financing, Inc.
	 	$	35,000,000	 
	 
	 	 	 	 
	Calyon New York Branch
	 	$	35,000,000	 
	 
	 	 	 	 
	Comerica Bank
	 	$	30,000,000	 
	 
	 	 	 	 
	First Merit Bank
	 	$	25,000,000	 
	 
	 	 	 
	 
	 	 	 	 
	TOTAL
	 	$	600,000,000	 






 









 





EXHIBIT B




FORM OF GUARANTY




The Amended and Restated Guaranty of Payment of Debt is attached as Exhibit No. 10.2 to this

Form 8-K filing.




 









 





EXHIBIT C




OUTSTANDING LETTERS OF CREDIT




Intentionally Omitted




 









 





EXHIBIT D-1




FORM OF REVOLVING LOAN NOTE




AMENDED AND RESTATED REVOLVING LOAN NOTE

(Holder)




	 	 	 	 	 	 	 
	$

	 	 	 	 
	 	Cleveland, Ohio
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






     FOR VALUE RECEIVED, the undersigned, FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio
corporation (the “Borrower”), hereby promises to pay to the order of [Name of Holder] (the
“Holder”), in lawful money of the United States of America, at the main office of KeyBank National
Association, Administrative Agent, 127 Public Square, Cleveland, Ohio 44114, the principal sum of
[                                        ] DOLLARS ($[                    ]), or, if lesser, the aggregate unpaid principal amount of
all Revolving Loans evidenced by this Note (as hereinafter defined) made by the Holder to the
Borrower pursuant to Section 2.03 of the Credit Agreement (as hereinafter defined). The unpaid
principal balance outstanding on this Amended and Restated Revolving Loan Note (this “Note”) from
time to time and interest thereon shall be determined by the ledgers and records of the Holder as
accurately maintained.



     This Note is one of the Revolving Loan Notes defined and referred to in, and is entitled to
the benefits of, a certain Amended and Restated Credit Agreement dated as of June 6, 2007, by and
among the Borrower, the Banks named therein, KeyBank National Association, as Administrative Agent,
National City Bank, as Syndication Agent and Bank of America, N.A. and LaSalle Bank National
Association, as Co-Documentation Agents (as so amended, and as it may be further amended, amended
and restated or otherwise modified from time to time, the “Credit Agreement”). A statement of the
rights of the Holder and the duties and obligations of the Borrower in relation thereto is made by
reference to the Credit Agreement, but neither this reference to the Credit Agreement nor any
provision thereof shall affect or impair the absolute and unconditional obligation of the Borrower
to pay the principal of and interest on this Note when due. Capitalized terms used in this Note
but not defined herein shall have the respective meanings ascribed to them in the Credit Agreement.



     This Note amends, restates and replaces in its entirety the Revolving Loan Note dated as of
June 30, 2006 by the Borrower in favor of the Holder (the “Original Note”) and is not intended as,
and shall not be deemed to be, a repayment, cancellation, refinancing or replacement of the
Indebtedness created by the Original Note, but rather as a consolidation and continuation of such
Indebtedness on the terms set forth in the Credit Agreement.



     The principal of this Note shall be due and payable on the Termination Date, or earlier as
provided in the Credit Agreement. The Borrower also promises to pay interest on the unpaid
principal amount of this Note from time to time outstanding from the date of this Note until the
payment in full thereof at the rates per annum determined in accordance with the Credit



 









 






Agreement. Interest shall be payable on each date provided for in or determined in accordance
with the provisions of the Credit Agreement; provided, that interest on any principal not paid
when due shall be due and payable on demand.



     Interest on this Note shall be calculated on the basis of a 360 day year for the actual number
of days elapsed.



     Reference is hereby made to the Credit Agreement, which contains provisions for the
acceleration of the maturity hereof upon the happening of certain stated events and for voluntary
prepayments hereon. The term “Holder” includes the successors and assigns, if any, of the Holder
named in the first paragraph hereof.



     If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse of
time or by operation of any provision for acceleration of maturity contained in the Credit
Agreement, the principal hereof and the unpaid interest thereon shall bear interest, until paid, at
a rate(s) equal to the rate(s) otherwise in effect pursuant to the Credit Agreement plus two
percent (2%) per annum. All payments of principal and interest on this Note shall be made in
immediately available funds.



     The Borrower waives demand, presentment for payment, notice of dishonor, protest, notice of
protest, and diligence in collection and bringing suit, and agrees that the Holder may extend the
time for payment, accept partial payment, take security therefor or exchange or release any
collateral, without discharging or releasing the Borrower.



     This Note was executed in Cleveland, Cuyahoga County, Ohio. The construction, validity and
enforceability of this Note shall be governed by and interpreted according to the laws of the State
of Ohio.



     The Borrower authorizes any attorney at law to appear before any court of record, whether
state or Federal, in the county where this Note was executed or where the Borrower resides or may
be found, after the unpaid principal balance of this Note becomes due, either by lapse of time or
by operation of any provision for acceleration of maturity contained in the Credit Agreement, and
waive the issuance and service of process, admit the maturity of this Note, by reason of
acceleration or otherwise, and confess judgment against the Borrower in favor of the Holder of this
Note for the amount then appearing due on this Note, together with interest thereon and costs of
suit, and thereupon to release all errors and waive all rights of appeal and stays of execution.
The Borrower expressly authorizes any attorneys or agents for the Holder to receive compensation
from the Holder for services rendered in exercising the foregoing warrant of attorney and in the
enforcement of any judgment obtained against the Borrower in favor of the Holder on this Note, and
the Borrower expressly waives any conflict of interest to which any attorneys for the Holder may be
subject that may arise in connection with such attorneys exercising any of the rights and/or powers
of the Holder provided for herein or the enforcement of any judgment hereon in favor of the Holder.
The foregoing warrant of attorney shall survive any judgment and may be used from time to time
without exhausting the right to further use the warrant of attorney and, if any judgment be vacated
for any reason, the Holder of this Note nevertheless may use the foregoing warrant of attorney to
obtain an additional judgment or judgments against the Borrower.



-2-









 




“WARNING — BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO
NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE
POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.”




	 	 	 	 	 
	 	FOREST CITY RENTAL PROPERTIES

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-3-









 





	 	 	 	 	 



EXHIBIT D-2




FORM OF SWING LINE NOTE




AMENDED AND RESTATED SWING LINE NOTE

(Holder)




	 	 	 	 	 	 	 
	$

	 	 	 	 
	 	Cleveland, Ohio
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






     FOR VALUE RECEIVED, the undersigned, FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio
corporation (the “Borrower”), hereby promises to pay to the order of                                                             (the
“Holder”), in lawful money of the United States of America at the main office of KeyBank National
Association, Administrative Agent, 127 Public Square, Cleveland, Ohio 44114, the principal sum of
                                                             DOLLARS ($               
     ), or, if lesser, the aggregate unpaid principal
amount of all Swing Loans evidenced by this Amended and Restated Swing Line Note (this “Note”) made
by the Holder to the Borrower pursuant to Section 2.07 of the Credit Agreement (as hereinafter
defined). The unpaid principal balance outstanding on this Note from time to time and interest
thereon shall be determined by the ledgers and records of the Holder as accurately maintained.



     This Note is one of the Swing Line Notes defined and referred to in, and is entitled to the
benefits of, a certain Amended and Restated Credit Agreement dated as of June 6, 2007, by and among
the Borrower, the Banks named therein, KeyBank National Association, as Administrative Agent,
National City Bank, as Syndication Agent and Bank of America, N.A. and LaSalle Bank National
Association, as Co-Documentation Agents (as so amended, and as it may be further amended, amended
and restated, or otherwise modified from time to time, the “Credit Agreement”). A statement of the
rights of the Holder and the duties and obligations of the Borrower in relation thereto is made by
reference to the Credit Agreement, but neither this reference to the Credit Agreement nor any
provision thereof shall affect or impair the absolute and unconditional obligation of the Borrower
to pay the principal of and interest on this Note when due. Capitalized terms used in this Note
but not defined herein shall have the respective meanings ascribed to them in the Credit Agreement.



     This Note amends, restates and replaces in its entirety the Swing Line Note dated as of April
7, 2005, by the Borrower in favor of the Holder (the “Original Note”) and is not intended as, and
shall not be deemed to be, a repayment, cancellation, refinancing or replacement of the
Indebtedness created by the Original Note, but rather as a consolidation and continuation of such
Indebtedness on the terms set forth in the Credit Agreement.



     The principal of this Note shall be due and payable on the earlier of the Swing Loan Maturity
Date applicable thereto and the Termination Date. The Borrower also promises to pay interest on
the unpaid principal amount of this Note from time to time outstanding from the date of this Note
until the payment in full thereof at the rates per annum determined in accordance with Section 2.07
of the Credit Agreement. Interest shall be payable on each date provided for in or determined in
accordance with the provisions of the Credit Agreement; provided, that interest on any principal
not paid when due shall be due and payable on demand.



 









 





     Interest on this Note shall be calculated on the basis of a 360 day year for the actual number
of days elapsed.



     Reference is hereby made to the Credit Agreement, which contains provisions for the
acceleration of the maturity hereof upon the happening of certain stated events and for voluntary
prepayments hereon. The term “Holder” includes the successors and assigns, if any, of the Holder
named in the first paragraph hereof.



     If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse of
time or by operation of any provision for acceleration of maturity contained in the Credit
Agreement, the principal hereof and the unpaid interest thereon shall bear interest, until paid, at
a rate(s) equal to the rate(s) otherwise in effect pursuant to the Credit Agreement plus two
percent (2%) per annum. All payments of principal and interest on this Note shall be made in
immediately available funds.



     The Borrower waives demand, presentment for payment, notice of dishonor, protest, notice of
protest, and diligence in collection and bringing suit, and agrees that the Holder may extend the
time for payment, accept partial payment, take security therefor or exchange or release any
collateral, without discharging or releasing the Borrower.



     This Note was executed in Cleveland, Cuyahoga County, Ohio. The construction, validity and
enforceability of this Note shall be governed by and interpreted according to the laws of the State
of Ohio.



     The Borrower authorizes any attorney at law to appear before any court of record, whether
state or Federal, in the county where this Note was executed or where the Borrower resides or may
be found, after the unpaid principal balance of this Note becomes due, either by lapse of time or
by operation of any provision for acceleration of maturity contained in the Credit Agreement, and
waive the issuance and service of process, admit the maturity of this Note, by reason of
acceleration or otherwise, and confess judgment against the Borrower in favor of the Holder of this
Note for the amount then appearing due on this Note, together with interest thereon and costs of
suit, and thereupon to release all errors and waive all rights of appeal and stays of execution.
The Borrower expressly authorizes any attorneys or agents for the Holder to receive compensation
from the Holder for services rendered in exercising the foregoing warrant of attorney and in the
enforcement of any judgment obtained against the Borrower in favor of the Holder on this Note, and
the Borrower expressly waives any conflict of interest to which any attorneys for the Holder may be
subject that may arise in connection with such attorneys exercising any of the rights and/or powers
of the Holder provided for herein or the enforcement of any judgment hereon in favor of the Holder.
The foregoing warrant of attorney shall survive any judgment and may be used from time to time
without exhausting the right to further use the warrant of attorney and, if any judgment be vacated
for any reason, the Holder of this Note nevertheless may use the foregoing warrant of attorney to
obtain an additional judgment or judgments against the Borrower.



 









 





     “WARNING — BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF
YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND
THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST
THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.”



	 	 	 	 	 
	 	FOREST CITY RENTAL PROPERTIES

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 





	 	 	 	 	 



EXHIBIT E




FORM OF LETTER OF CREDIT REQUEST




No. ______1      Dated ____________2



KeyBank National Association, as Administrative Agent

under the Amended and Restated Credit Agreement (as so amended, and as it may be further amended,
amended and restated or otherwise modified from time to time, the “Credit Agreement”), dated as of
June 6, 2007, among Forest City Rental Properties Corporation, the Banks from time to time party
thereto, KeyBank National Association, as Administrative Agent, National City Bank, as Syndication
Agent and Bank of America, N.A. and LaSalle Bank National Association, as Co-Documentation Agents

127 Public Square

Cleveland, Ohio 44114




	 	 	 
	Attention:
	 	 
	 

	 	 






Dear Sirs:



We hereby request that KeyBank National Association, in its capacity as Administrative Agent, issue
a Letter of Credit for the account of the undersigned on                     3 (the “Date of
Issuance”) in the aggregate stated amount of                     4. The requested Letter of
Credit shall be denominated in U.S. dollars.



For purposes of this Letter of Credit Request, unless otherwise defined herein, all capitalized
terms used herein shall have the respective meanings provided in the Credit Agreement.






 




			
	 	 	1Letter of Credit Request Number.
	 
	 	 	2Date of Letter of Credit Request.
	 
	             3Date of Issuance which shall be at least five
Cleveland Banking Days after the date of this Letter of Credit Request (or such
shorter period as is acceptable to KeyBank National Association).
	 
	 	 	4Aggregate initial stated amount of Letter of
Credit.




 









 








The beneficiary of the requested Letter of Credit will be                                         5, and such
Letter of Credit will be in support of                                         6 and will have a stated
expiration date of                     7.




We hereby certify that:





     (1) the representations and warranties contained in the Credit Agreement and the
Related Writings will be true and correct in all material respects on the Date of Issuance,
both before and after giving effect to the issuance of the Letter of Credit requested hereby
(it being understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all material
respects only as of such specified date); and




     (2) no Possible Default or Event of Default has occurred and is continuing nor, after
giving effect to the issuance of the Letter of Credit requested hereby, would such a
Possible Default or an Event of Default occur.


Copies of all relevant documentation with respect to the supported transaction, as required by the
Credit Agreement, are attached hereto.




	 	 	 	 	 
	 	FOREST CITY RENTAL PROPERTIES
CORPORATION

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	 	 	5Insert name and address of beneficiary.
	 
	             6Insert description of the Indebtedness and
describe obligation to which it relates or a description of the commercial
transaction which is being supported, as applicable.
	 
	 	 	7Insert last date upon which drafts may be
presented which may not be later than the Termination Date.




 









 









EXHIBIT F




FORM OF NOTICE OF BORROWING




___________ ___, 200_




KeyBank National Association, as Administrative Agent under the

Credit Agreement (referred to below)

127 Public Square

Cleveland, Ohio 44114




Attention:




Ladies and Gentlemen:



The undersigned, Forest City Rental Properties Corporation (the “Borrower”), hereby gives you
notice, irrevocably, pursuant to Section 5.01 of the Amended and Restated Credit Agreement, dated
as of June 6, 2007 (as so amended, and as it may be further amended, amended and restated or
otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used
herein as so defined), among the Borrower, various Banks from time to time party thereto, National
City Bank, as Syndication Agent, Bank of America, N.A. and LaSalle Bank National Association, as
Co-Documentation Agents and you, as Administrative Agent for such Banks, that the undersigned
requests a Loan under the Credit Agreement and for that purpose sets forth below the information
relating to such Loan (the “Proposed Loan”):





     (i) The proposed borrowing is to be a [Revolving Loan] [Swing Loan].



     (ii) The aggregate principal amount of the Proposed Loan is $                                        .



     (iii) The Cleveland Banking Day of the Proposed Loan is                                         .1



     (iv) The Proposed Loan, if a Revolving Loan, shall be initially maintained subject to
the [Base Rate Option] [the LIBOR Rate Option].



     (v) The initial Interest Period for the Proposed Loan (if subject to the LIBOR Rate
Option) is                      month(s).





 




			
	             1Shall be a Cleveland Banking Day at least one
Cleveland Banking Day in the case of Loans subject to the Base Rate Option and
two Cleveland Banking Days in the case of Loans subject to the LIBOR Rate
Option, in each case, after the date hereof and may be the same day as the date
hereof if a Swing Loan.




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The undersigned hereby certifies that the following statements are true and correct on the date
hereof, and will be true and correct on the date of the Proposed Loan:





     (A) the representations and warranties contained in the Credit Agreement and the
Related Writings are and will be true and correct in all material respects, both before and
after giving effect to the Proposed Loan and to the application of the proceeds thereof, as
though made on such date (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true and correct
in all material respects only as of such specified date); and




     (B) no Possible Default or Event of Default has occurred and is continuing, or would
result from such Proposed Loan or from the application of the proceeds thereof.



	 	 	 	 	 
	 	FOREST CITY RENTAL PROPERTIES

CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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EXHIBIT G




FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT





     This Assignment and Assumption Agreement
(this “Assignment Agreement”) between                                        
(the “Assignor”) and
                    
(the “Assignee”) is dated as of                     .



W I T N E S S E T H:




     WHEREAS, the Assignor is a party to a certain Amended and Restated Credit Agreement, dated as
of June 6, 2007, by and among Forest City Rental Properties Corporation, an Ohio corporation (the
“Borrower”), the Banks named therein, KeyBank National Association, as Administrative Agent
(hereinafter referred to as the “Agent”), National City Bank, as Syndication Agent and Bank of
America, N.A. and LaSalle Bank National Association, as Co-Documentation Agents (as so amended, and
as it may be further amended, amended and restated or otherwise modified from time to time, the
“Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement; and



     WHEREAS, the Assignor is willing to sell and assign to the Assignee, and the Assignee is
willing to purchase and assume from the Assignor, all or a portion of the Assignor’s Loans and/or
Commitments under the Credit Agreement;



     NOW, THEREFORE, it is mutually agreed as follows:



     1. The Assignor hereby sells and assigns (without recourse) to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, as of the date hereof, all or a portion of the
Assignor’s Revolving Loans, which amount shall not be less than Ten Million Dollars ($10,000,000)
to the extent that the Assignee is not an Affiliate of the Assignor, and the pro-rata share of the
Assignor’s Commitment as each specified on Schedule 1 attached hereto and the Assignor’s
corresponding rights and obligations under the Credit Agreement. After giving effect to such sale
and assignment, the Assignee’s Commitment and the amount of the Revolving Loans owing to the
Assignee will be as set forth in Item 2(C) and Item 2(F) of Schedule 1 respectively.



     2. The effective date of this Assignment Agreement (the “Effective Date”) shall be the date
specified in Item 3 of Schedule 1. In no event will the Effective Date occur if the assignment
fees required to be paid to the Agent under Section 3 hereof are not paid on or prior to
the proposed Effective Date, unless otherwise agreed to in writing by the Agent. The Assignor will
(i) no later than three (3) Business Days prior to the proposed Effective Date, notify the Agent of
the proposed Effective Date; (ii) if the Assignor and the Assignee are not affiliated entities,
obtain consents of this assignment from the Agent and the Borrower, if required, prior to the
proposed Effective Date, which consent shall not be unreasonably withheld or delayed, and (iii) to
the extent any letters of credit are outstanding, obtain consents of this assignment from the Agent
prior to the proposed Effective Date, which consent shall not be unreasonably withheld or delayed.
Upon such acceptance and recording by the Agent, as of the



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Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment Agreement, have the same rights and obligations thereunder as it would
if it were the Assignor; and (ii) the Assignor shall relinquish its rights and be released from its
corresponding obligations under the Credit Agreement with respect to the rights and obligations
assigned to the Assignee hereunder.



     3. The Agent shall be paid a nonrefundable assignment fee by [the Assignor] [the Assignee] in
the amount of $3,000 on or prior to the Effective Date. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments of principal, interest and fees
with respect to the interest assigned hereby. In consideration for the sale and assignment of
Loans hereunder, the Assignee shall pay the Assignor, on or prior to the Effective Date, an amount
equal to $                    . The Assignee will promptly remit to the Assignor (i) the portion of any
principal payments assigned hereunder and received from the Agent with respect to any such Loan
prior to the Effective Date and (ii) any amounts of interest on Loans and fees received from the
Agent which relate to the portion of the Loans assigned to the Assignee hereunder for periods prior
to the Effective Date and not previously paid by the Assignee to the Assignor. In the event that
either party hereto receives any payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall promptly remit it to the other
party hereto.



     4. Upon such acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Revolving Loan Notes in respect of
the interest assigned hereby (including, without limitation, all payments of principal, interest
and commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the Revolving Loan Notes for
periods prior to the Effective Date directly between themselves.



     5. If any reduction in the Revolving Loans occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest specified in Item 2(B) of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated based on the reduced
Revolving Loan amount.



     6. The Assignor (i) represents and warrants that (A) it is the legal and beneficial owner of
the interest being assigned by it hereunder, (B) such interest is free and clear of any adverse
claim, and (C) no Possible Default or Event of Default exists; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition or the creditworthiness of the
Borrower or the performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches
the Revolving Loan Note or Revolving Loan Notes held by the Assignor and requests that the Agent
exchange such Revolving Loan Note or Revolving Loan Notes for a new Revolving Loan Note or
Revolving Loan Notes payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit



-2-









 






Agreement, respectively, as specified on Schedule 1. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor and that the Assignor
makes no other representation or warranty of any kind to the Assignee.



     7. The Assignee (i) represents and warrants that it is a commercial bank, financial
institution, mutual fund or institutional “accredited investor” (as defined in Regulation D of the
Securities Act of 1933, as amended); (ii) confirms that it has received a copy of the Credit
Agreement and each of the other Related Writings, together with copies of the financial statements
requested by the Assignee and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment Agreement; (iii) agrees
that it will, independently and without reliance upon any Agent, the Assignor or any other Bank and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Credit Agreement; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms of all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi) if the Assignee is organized under the
laws of a jurisdiction outside the United States, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee’s status for purposes of
determining exemption from United States withholding taxes with respect to all payments to be made
to the Assignee under the Credit Agreement and the Revolving Loan Notes or such other documents as
are necessary to indicate that all such payments are subject to such taxes at a rate reduced by an
applicable tax treaty; and (vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are “plan assets” as defined
under ERISA and that its rights, benefits and interests in and under the Credit Agreement and
Related Writings will not be “plan assets” under ERISA.



     8. The Assignor and the Assignee agree to indemnify and hold the Agent harmless against any
and all losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) and
liabilities incurred by the Agent in connection with or arising in any manner from this assignment.



     9. After the Effective Date, the Assignee shall have the right pursuant to Section 13.08 of
the Credit Agreement to assign the rights which are assigned to the Assignee hereunder to any
qualified entity as provided in Section 13.08 of the Credit Agreement, provided that (i) any such
subsequent assignment does not violate any of the terms and conditions of the Credit Agreement or
Related Writings or any law, rule, regulation, order, writ, judgment, injunction or decree and that
any consent required under the terms of the Credit Agreement or Related Writings has been obtained
and (ii) unless the prior written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder.



     10. Each party to this Assignment Agreement agrees to pay its own fees and expenses incurred
by it in connection with the negotiation, preparation and execution of this Assignment Agreement.



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     11. This Assignment Agreement and any amendments, waivers, consents or supplements may be
executed in counterparts, each of which when so executed and delivered shall be deemed an original,
but all of which together shall constitute but one and the same instrument.



     12. This Assignment Agreement together with attached Schedule 1 embody the entire agreement
and understanding between the parties hereto and supersede all prior agreements and understandings
between the parties hereto relating to the subject matter hereof.



     13. This Assignment Agreement shall be governed by the internal law, and not the law of
conflicts, of the State of Ohio.



     14. Notices shall be given under this Assignment Agreement in the manner set forth in the
Credit Agreement. For the purpose hereof, the addresses of the parties hereto (until notice of a
change is delivered) shall be the address set forth in the Credit Agreement or the attached
Schedule 1, if a different address is therein provided.



     IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement by their duly
authorized officers as of the date first above written.



	 	 	 	 	 
	 	(Assignor Bank)

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	(Assignee Bank)

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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SCHEDULE 1

to Assignment and Assumption Agreement





	1.	 	Date of Assignment and Assumption Agreement:
	 
	2.	 	Amounts (as of the date of Item 1 above unless indicated otherwise):





	 	 	 	 	 	 	 
	A.

	 	Assignor’s Commitment
	 	 	$	 
	 
	 	 	 	 	 	 
	B.

	 	Percentage of Assignor’s Commitment assigned
	 	 	%	 
	 
	 	 	 	 	 	 
	C.

	 	Amount of Assignor’s Commitment Assigned
to Assignee (A * B)
	 	 	$	 
	 
	 	 	 	 	 	 
	D.

	 	Amount of Assignor’s Commitment retained
after Effective Date (A-C)
	 	 	$	 
	 
	 	 	 	 	 	 
	E.

	 	Assignor’s aggregate outstanding principal amount of
Revolving Loans
	 	 	$	 
	 
	 	 	 	 	 	 
	F.

	 	Aggregate outstanding principal amount of Revolving
Loans assigned to Assignee
	 	 	$	 
	 
	 	 	 	 	 	 
	G.

	 	Assignor’s aggregate principal amount of Revolving Loans
Retained after Effective Date (E-F)
	 	 	$	 
	 
	 	 	 	 	 	 
	H.

	 	Aggregate outstanding amount of accrued interest and fees
assigned
	 	 	$	 







	3.	 	Effective Date:
	 
	4.	 	Address of Assignee:






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