13.03.
NOTICES
85
SECTION 13.04.
COSTS, EXPENSES AND TAXES
85
SECTION 13.05.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
86
SECTION 13.06.
OBLIGATIONS SEVERAL; NO FIDUCIARY OBLIGATIONS
86
SECTION 13.07.
EXECUTION IN COUNTERPARTS
86
SECTION 13.08.
BINDING EFFECT; PARTICIPATIONS AND ASSIGNMENT
86
SECTION 13.09.
INDEMNIFICATION BY THE BORROWER
88
SECTION 13.10.
GOVERNING LAW
89
SECTION 13.11.
SEVERABILITY OF PROVISIONS; CAPTIONS
89
SECTION 13.12.
PURPOSE
89
SECTION 13.13.
CONSENT TO JURISDICTION
89
SECTION 13.14.
ENTIRE AGREEMENT
89
SECTION 13.15.
JURY TRIAL WAIVER
89
SECTION 13.16.
SURVIVAL
90
SECTION 13.17.
INDEPENDENCE OF COVENANTS
90
SECTION 13.18.
INTERPRETATION
90
SECTION 13.19.
GENERAL LIMITATION OF LIABILITY
90
SECTION 13.20.
USA PATRIOT ACT NOTIFICATION
91
(v)
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 ITEMS
9.00
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
9.18
ORGANIZATIONAL STRUCTURE
9.22
OUTSTANDING GUARANTEES
9.23
OUTSTANDING INDEBTEDNESS
(vi)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 29, 2010
(this "Agreement"), among FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio
corporation (the "Borrower"), the banking institutions from time to time party
hereto, together with their respective successors and permitted assigns
(collectively the "Banks" and individually a "Bank"), KEYBANK NATIONAL
ASSOCIATION, Cleveland, Ohio, as Administrative Agent for the Banks under this
Agreement (the "Agent"), PNC BANK, NATIONAL ASSOCIATION, as successor to
National City Bank, Cleveland, Ohio, as Syndication Agent for the Banks under
this Agreement (the "Syndication Agent"), and BANK OF AMERICA, N.A., as
Documentation Agent (the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, certain of the Banks party hereto on the date
hereof, the Agent, National City Bank, as Syndication Agent, and Bank of
America, N.A. and LaSalle Bank National Association, as Co-Documentation Agents,
previously entered into an Amended and Restated Credit Agreement, dated as of
June 6, 2007 (as amended to the date hereof, the "2007 Credit Agreement"); and
WHEREAS, the Borrower, the Banks party hereto on the date hereof, the
Agents (as defined below) and the Documentation Agent desire to amend and
restate the 2007 Credit Agreement in its entirety and the Banks, the Agents and
the Documentation Agent are willing to do so upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals herein and mutual
covenants and agreements contained herein, the parties hereto hereby amend and
restate the 2007 Credit Agreement in its entirety and covenant and agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"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 (other than
as a