Exhibit 10.44
EXECUTION COPY
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of this 10th day of September, 2008,
but shall be effective as of July 31, 2008, by and among FOREST CITY RENTAL
PROPERTIES CORPORATION, an Ohio corporation (the "Borrower"), KEY BANK NATIONAL
ASSOCIATION, as Administrative Agent (the "Agent"), NATIONAL CITY BANK, as
Syndication Agent (the "Syndication Agent" and, together with the Agent, the
"Agents"), BANK OF AMERICA, N. A., as Documentation Agent, and the banks party
to the Credit Agreement (as hereinafter defined) as of the date hereof
(collectively, the "Banks" and individually a "Bank"). Capitalized terms not
otherwise defined herein shall have the respective meanings attributed to them
in the Credit Agreement, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agents have previously entered
into a certain Amended and Restated Credit Agreement, dated as of June 6, 2007
(the "Credit Agreement"); and
WHEREAS, in connection with the Credit Agreement, Forest City Enterprises,
Inc. (the "Parent") made and entered into a certain Amended and Restated
Guaranty of Payment of Debt in favor of the Agents and the Banks, dated as of
June 6, 2007, as amended by that certain First Amendment to Amended and Restated
Guaranty of Payment of Debt, dated as of the date hereof (as so amended, the
"Guaranty"); and
WHEREAS, the Borrower, the Banks and the Agents desire to make certain
amendments to the Credit Agreement to modify certain financial and legal
provisions, subject to the terms and conditions contained herein; and
WHEREAS, the Banks and the Agents are willing to amend the Credit
Agreement, on the terms and conditions set forth herein, and such terms and
conditions are agreeable to the Borrower and to the Parent.
NOW, THEREFORE, it is mutually agreed as follows:
1. AMENDMENT TO INTRODUCTORY PARAGRAPH. The introductory paragraph of the
Credit Agreement shall be amended by deleting it in its entirety and replacing
it with the following:
Amended and Restated Credit Agreement, dated as of June 6, 2007 (the
"Agreement"), among FOREST CITY RENTAL PROPERTIES CORPORATION, an Ohio
corporation (hereinafter sometimes called the "Borrower"), the banking
institutions from time to time party hereto (hereinafter sometimes collectively
called the "Banks" and individually a "Bank"), KEY BANK NATIONAL ASSOCIATION,
Cleveland, Ohio, as Administrative Agent for the Banks under this Agreement (the
"Agent"), NATIONAL CITY BANK, Cleveland, Ohio, as Syndication Agent for the
Banks under this Agreement (the "Syndication Agent") and BANK OF AMERICA, N.A.,
as Documentation Agent (the "Documentation Agent").
2. AMENDMENTS TO ARTICLE I OF THE CREDIT AGREEMENT. Article I of the Credit
Agreement shall be amended as follows:
(a) Amendment of Definition of "Debt". The definition of "Debt"
contained in Article I of the Credit Agreement shall be amended by deleting the
phrase "prepayment premium" contained therein and replacing it with the phrase
"LIBOR breakage compensation".
(b) Amendment of Definition of