UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 8-K
_____________________________________________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 17, 2015
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Forest City Enterprises, Inc.
(Exact name of registrant as specified in its charter)
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Ohio (State or other jurisdiction of incorporation) | | 1-4372 (Commission File Number) | | 34-0863886 (I.R.S. Employer Identification No.) |
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Terminal Tower, 50 Public Square Suite 1100, Cleveland, Ohio | | 44113 |
(Address of principal executive offices) | | (Zip Code) |
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Registrant’s telephone number, including area code: 216-621-6060 |
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Not Applicable |
(Former Name or Former Address, if Changed Since Last Report) |
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introduction
On October 20, 2015, in connection with Forest City Enterprises, Inc.’s (the “Company”) anticipated conversion to real estate investment trust status commencing with the taxable year ending December 31, 2016 (the “REIT Conversion”), the Company’s shareholders approved an Agreement and Plan of Merger, dated as of September 15, 2015 (the “Merger Agreement”), by and among the Company, Forest City Realty Trust, Inc., a Maryland corporation and a wholly-owned subsidiary of the Company (the “REIT”), FCILP, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the REIT (“FCILP”), and FCE Merger Sub, Inc., an Ohio corporation wholly owned in the aggregate by the REIT and FCILP (the “Merger Subsidiary”), whereby the Merger Subsidiary will be merged with and into the Company with the Company surviving as a wholly-owned subsidiary of the REIT owned directly and through the REIT’s interest in FCILP; the Company expects that the effective date of this merger will be on or about December 31, 2015 (the “Merger”). On November 18, 2015, the board of directors of the Company and the REIT approved multiple actions related to the REIT Conversion, as more fully set forth below.
Item 1.01 Entry into a Material Definitive Agreement.
Credit Facility
On November 17, 2015, the Company entered into a Credit Agreement with Bank of America, N.A. (“Bank of America”), as Administrative Agent, Bank of America and PNC Bank, National Association (“PNC”) as Swing Line Lenders and L/C Issuers, PNC as Syndication Agent, Citibank N.A., KeyBank National Association and The Bank of New York Mellon, as Co-Documentation Agents, and the various lenders from time to time party thereto (the “Credit Agreement”) in order to refinance certain indebtedness described below in Item 1.02 and for general corporate purposes. Merrill Lynch, Pierce, Fenner & Smith Incorporated and PNC Capital Markets LLC served as Joint Lead Arrangers and Joint Bookrunners. All amounts borrowed under the Credit Agreement are guaranteed by certain wholly-owned subsidiaries of the Company, and will also be guaranteed by the REIT following the expected REIT Conversion as described on the REIT’s Registration Statement on Form S-4 initially filed with the Securities and Exchange Commission (the “SEC”) on July 10, 2015.
The Credit Agreement provides for a $500.0 million senior unsecured revolving credit facility (the “Facility”) and includes the option to increase the revolving loan commitments to up to $750.0 million subject to satisfaction of certain conditions contained in the Credit Agreement. In addition, the Credit Agreement provides for a $150.0 million letter of credit sublimit and a $50.0 million swingline sublimit. The Facility has an initial maturity date of November 17, 2019, which may be extended at the option of the Company for two additional six month periods, subject to customary closing conditions, pursuant to the terms of the Credit Agreement (the “Maturity Date”). Borrowings under the Credit Agreement are required to be repaid on the Maturity Date.
Borrowings under the Facility bear interest at the applicable margin plus the applicable base rate or Eurodollar rate. The applicable margins, as of the closing date, are based on the Company’s maximum total leverage ratio, calculated as a ratio of total consolidated indebtedness to total asset value. The applicable margin ranges from 1.85% to 1.15% for Eurodollar rate loans and 0.85% to 0.15% for base rate loans. Upon the REIT obtaining an investment grade credit rating, established by certain debt rating agencies for the Company’s long term, senior, unsecured non-credit enhanced debt (the “Debt Ratings”), the applicable margin will, at the election of the Company, be based on the REIT’s then-current Debt Ratings.
The Company is subject to certain financial maintenance covenants under the Credit Agreement, including: (a) a maximum total leverage ratio of 65% on or prior to December 31, 2017 and 60% subsequent to December 31, 2017, (b) a maximum secured leverage ratio of 55% on or after March 31, 2016 and prior to January 1, 2019, and 50% subsequent to December 31, 2018, (c) a maximum secured recourse leverage ratio of 15% on or after March 31, 2016, (d) a minimum fixed charge coverage ratio of 1.50 to 1.00 on or after March 31, 2016, (e) a maximum unsecured leverage ratio of 60% on or after March 31, 2016 and (f) a minimum unencumbered interest coverage ratio of 1.50 to 1.00 on or after March 31, 2016 and prior to January 1, 2018, and 1.75 to 1.00 subsequent tot December 31, 2017.
The Credit Agreement also contains customary events of default provisions, including failure to pay indebtedness, breaches of covenants and bankruptcy or other insolvency events, which could result in the acceleration of all amounts and cancellation of all commitments outstanding under the Credit Agreement, as well as customary representations and warranties and affirmative and negative covenants.
The foregoing description of the Credit Agreement is not and does not purport to be complete and is qualified in its entirety by reference to the Credit Agreement, a copy of which is attached as Exhibit 10.1 to this current report on Form 8-K and is incorporated herein by reference.
On November 19, 2015, the Company issued a press release announcing the entry into the Credit Agreement. A copy of this press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Supplemental Indentures
On November 20, 2015, the Company, the REIT and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), entered into the following supplemental indentures (each a “Supplemental Indenture”, and collectively, the “Supplemental Indentures”):
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• | Second Supplemental Indenture to the Indenture dated as of October 26, 2009, with respect to the Company’s 5.00% Convertible Senior Notes due 2016 (the “5.00% Notes”), effecting, as of December 31, 2015, the REIT’s assumption of all of the Company’s obligations with respect to the 5.00% Notes. |
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• | Second Supplemental Indenture to the Indenture dated as of July 19, 2011, with respect to the Company’s 4.25% Convertible Senior Notes due 2018 (the “4.25% Notes”), effecting, as of December 31, 2015, the REIT’s assumption of all of the Company’s obligations with respect to the 4.25% Notes. |
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• | First Supplemental Indenture to the Indenture dated as of July 19, 2013, with respect to the Company’s 3.625% Convertible Senior Notes due 2020 (the “3.625% Notes”), effecting, as of December 31, 2015, the REIT’s assumption of all of the Company’s obligations with respect to the 3.625% Notes. |
The foregoing summary of the Supplemental Indentures does not purport to be complete, and is qualified in its entirety by reference to the Supplemental Indentures, which are included as Exhibits 4.1, 4.2 and 4.3 to this Current Report on Form 8-K and are incorporated into this Item 1.01 by reference.
Item 1.02 Termination of a Material Definitive Agreement.
Effective November 17, 2015 and in connection with the Credit Agreement described in Item 1.01 of this Current Report on Form 8-K, the Company terminated its then-existing credit agreement, dated as of February 21, 2013, among Forest City Rental Properties Corporation, a wholly-owned subsidiary of the Company, as borrower, KeyBank National Association as administrative agent, PNC Bank, National Association as syndication agent, Bank of America, National Association as documentation agent, and the various banks party thereto (the “Existing Credit Agreement”), and the related $500 million revolving commitments thereunder and the then-existing guaranty of payment of debt, dated as of February 21, 2013, entered into by the Company for the benefit of KeyBank National Association, PNC Bank National Association, Bank of America, N.A., and the various banks party thereto. In connection with such termination, the Company repaid all amounts due and outstanding under the Existing Credit Agreement.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
The information required by Item 2.03 is included in Item 1.01 above and is incorporated by reference herein.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(c) The current executive officers of the REIT, including David J. LaRue, President and Chief Executive Officer (Principal Executive Officer), Robert G. O’Brien, Executive Vice President and Chief Financial Officer (Principal Financial Officer), Charles D. Obert, Senior Vice President-Corporate Controller and Chief Accounting Officer (Principal Accounting Officer) will remain executive officers of the REIT following the Merger. In addition, Duane F. Bishop will serve as Executive Vice President and Chief Operating Officer (Principal Operating Officer) of the REIT, effective on January 1, 2016.
(d) The directors of the Company immediately prior to the effective time of the Merger will be the directors of the REIT following the Merger. The REIT’s directors will be subject to re-election at the REIT’s 2016 annual meeting of shareholders. In addition, following the Merger, the Company’s standing committees of the board (Audit, Compensation and Corporate Governance and Nominating) immediately prior to the effective time of the Merger will be the same standing committees of the REIT board, and the membership of each committee will remain unchanged.
(e)
Indemnification Agreements
On November 18, 2015, the board of directors of the REIT approved the form of indemnification agreement attached to this Current Report on Form 8-K as Exhibit 10.2 and incorporated into this Item 5.02 by reference. On the same date, the REIT entered into indemnification agreements with the directors and certain executive officers of the REIT, which provide for indemnification to such directors and executive officers to the fullest extent as permitted by law.
Employment Agreements and Death Benefit Agreements
On November 18, 2015, employment agreements were entered into by and between Forest City Employer, LLC, a Delaware limited liability company and subsidiary of the REIT (“FCE EmployerCo”), as employer, the REIT, as guarantor of FCE EmployerCo’s performance thereunder, and certain executive officers of the REIT, including David J. LaRue, Robert G. O’Brien, James A. Ratner, Executive Vice President-Development, and Ronald A. Ratner, Executive Vice President-Development (collectively, the “Employment Agreements”). The Employment Agreements become effective as of January 1, 2016 and will replace and supersede the employment agreements between such persons and the Company on that date.
The Employment Agreements and Death Benefit Agreements, as described and defined below, contain terms substantially similar to the existing employment agreements and death benefit agreements by and between the aforementioned executive officers and the Company. The terms of the Employment Agreements are described below.
Employment Agreements and Death Benefit Agreements with David J. LaRue and Robert G. O’Brien
Each of the Employment Agreements with David J. LaRue and Robert G. O’Brien is effective for a period of one year from January 1, 2016 and will continue for additional one-year periods until termination by FCE EmployerCo or the officer in accordance with the conditions designated in the Employment Agreement (including by death, disability, by the Company with or without cause, by the officer with or without good reason, or upon non-renewal of the then current employment term).
Under their Employment Agreements, Messrs. LaRue and O’Brien will receive initial base salaries of $675,000 and $566,500, respectively, subject to adjustments based upon the performance of the REIT, FCE EmployerCo and their affiliates (the “Forest City Group”), as well as industry standards. Messrs. LaRue and O’Brien remain eligible to participate in the executive versions of the short-term incentive plan (“STIP”) and the long-term incentive plan (“LTIP”) in accordance with the terms established by the board of directors or the compensation committee of the REIT.
Subject to certain limitations contained in their Employment Agreements, Messrs. LaRue and O’Brien will be eligible for severance payments and benefits upon termination. Following termination, each officer generally will be entitled to:
•The earned and unpaid portions of his annual base salary, incentive compensation under the STIP and LTIP for the last completed performance period prior to termination, and accrued and unused paid-time-off through the date of termination; and
•Any other amounts or benefits required to be paid, provided or which he is eligible to receive.
Furthermore, subject to the conditions set forth in their Employment Agreements, including the requirement to release all claims against the Forest City Group, following a termination due to disability, by FCE EmployerCo other than for cause or by the officer for good reason, Messrs. LaRue and O’Brien each generally will be entitled to:
•Two times the sum of (i) his then current annual base salary, (ii) the average of the annual incentives payable to him under the STIP for the previous three full fiscal years prior to the date of termination, (iii) an amount equal to 12 monthly long-term care premiums based on the level of coverage in effect for him immediately prior to the date of termination, and (iv) an amount equal to his annual health care subsidy payment as in effect immediately prior to the date of termination;
•The annual incentive that would have been payable to him under the STIP for the fiscal year during which his termination occurs, prorated through the date of termination and determined based on actual performance during the entire fiscal year;
•In the event termination occurs in the second half of a performance period under the LTIP, the long-term cash incentives and performance shares that would have been payable to him under the LTIP at the expiration of that performance period (determined based on actual performance during the entire performance period), prorated through the date of termination; and
•Accelerated vesting of any outstanding and unvested restricted shares, restricted share units and stock options held by him (excluding equity awards of which the number of shares earned depends upon performance), with any vested stock options remaining outstanding for the remainder of their term.
The Employment Agreements with Messrs. LaRue and O’Brien generally define “cause” for termination of employment as: (i) the officer’s conviction of (or guilty plea or plea of nolo contendere to) any felony or any other crime involving dishonesty with respect to the Forest City Group; or (ii) the officer’s material breach of (a) the Code of Legal and Ethical Conduct or other written Forest City Group policy, (b) his obligations under the Employment Agreement, or (c) any laws material to the conduct of the Forest City Group’s business.
Under the Employment Agreements with Messrs. LaRue and O’Brien, “good reason” generally means: (i) a material reduction in duties or responsibilities (including any change in officer status); (ii) a material reduction (defined as a reduction of more than 10% during the term of the Employment Agreement) of the officer’s base salary, target STIP or LTIP opportunity or total direct compensation opportunity; (iii) a material change (by more than 50 miles) in the geographic location of the officer’s principal work location; or (iv) a material breach of the agreement by FCE EmployerCo or the REIT.
Pursuant to their Employment Agreements, David J. LaRue and Robert G. O’Brien have agreed to certain non-solicitation and non-competition provisions applicable during the term of employment with FCE EmployerCo and for a two-year period thereafter. In addition, the Employment Agreements with Messrs. LaRue and O’Brien contain customary non-disparagement and confidentiality provisions applicable during and after the respective terms of their employment with FCE EmployerCo.
In addition, on November 18, 2015, death benefit agreements were entered into by and between FCE EmployerCo, as employer and provider of the benefits thereunder, the REIT, as guarantor of FCE EmployerCo’s performance thereunder, and each of David J. LaRue and Robert G. O’Brien (collectively, the “Death Benefit Agreements”). Each Death Benefit Agreement provides that if the executive dies while employed by FCE EmployerCo, FCE EmployerCo will pay a death benefit to his designated beneficiary (or estate). The death benefit will be paid, in quarterly installments, for five years after the executive’s death, and the amount of the death benefit payable for each such year will equal the executive’s annual salary at the time of death. The Death Benefit Agreements become effective as of January 1, 2016 and will replace and supersede the death benefit agreements between such persons and the Company on that date.
Employment Agreements with James A. Ratner and Ronald A. Ratner
Each of the Employment Agreements with James A. Ratner and Ronald A. Ratner is effective for a period of one year from January 1, 2016 and will continue for additional one-year periods until termination in accordance with the conditions designated in the Employment Agreement (including by death, by mutual consent, by FCE EmployerCo on account of conduct by the officer that injures the Forest City Group’s business, or upon non-renewal of the then current employment term). The Employment Agreements for James A. Ratner and Ronald A. Ratner provide for a minimum base salary of $500,000 and death benefits equivalent to those provided under the Death Benefit Agreements described above (base salary continuation for a period of five years after death while employed by FCE EmployerCo). In addition, each of the Employment Agreements with James A. Ratner and Ronald A. Ratner contains a non-compete provision.
The Employment Agreements and Death Benefit Agreements are attached to this Current Report on Form 8-K as Exhibits 10.3 through 10.8 and are incorporated into this Item 5.02 by reference.
Assignment and Assumption of Equity, Deferred Compensation and Cash Incentive Plans and Awards
In connection with the Merger, on November 20, 2015, the REIT and the Company entered into an assignment and assumption agreement, pursuant to which, effective at 11:59 on December 31, 2015, the Company will assign to the REIT, and the REIT will assume all equity compensation plans sponsored and maintained by Company, including all related award agreements, and all obligations of the Company thereunder, including the 1994 Stock Plan (as amended and restated as of March 17, 2013 and further amended on December 17, 2013), the 2005 Deferred Compensation Plan for Nonemployee Directors (as amended and restated effective January 1, 2008) (the “2005 Nonemployee Director Plan”), and the Deferred Compensation Plan for Nonemployee Directors (the “Nonemployee Director Plan”) (collectively, the “Equity Plans”), as well as the Employee Stock Purchase Plan for the Company’s employees and the Dividend Reinvestment and Stock Purchase Plan for the Company’s shareholders. The
amendments to the plans and award agreements reflect the REIT’s assumption of such plans and agreements and the obligations thereunder and the substitution of shares of REIT Class A Common Stock, par value $0.01 per share (“REIT Class A Common Stock”), for shares of Company Class A Common Stock, par value $0.33 1/3 per share (“Company Class A Common Stock”).
In addition, on November 20, 2015, FCE EmployerCo and the Company entered into an assignment and assumption agreement, pursuant to which, effective at 11:59 on December 31, 2015, the Company will assign to FCE EmployerCo, and FCE EmployerCo will assume all nonqualified deferred compensation plans sponsored and maintained by the Company, including the Deferred Compensation Plan for Executives, the 2005 Deferred Compensation Plan for Executives and the Unfunded Nonqualified Supplemental Retirement Plan for Executives (collectively, the “Deferred Compensation Plans”), all cash-based incentive plans sponsored and maintained by the Company, including the Executive Short-Term Incentive Plan, the Executive Long-Term Incentive Plan, the Senior Management Short-Term Incentive Plan and the Senior Management Long-Term Incentive Plan (collectively, the “Cash Incentive Plans”), and the Company’s 401(k) Employee Savings Plan & Plan (the “401(k) Plan”).
The assignment and assumption agreements and the amended and restated Equity Plans, Deferred Compensation Plans and Cash Incentive Plans, including the forms of the related award agreements, as applicable, and an amendment to the 401(k) Plan are included with this Current Report on Form 8-K as Exhibits 10.9 through 10.24, and are incorporated into this Item 5.02 by reference.
All descriptions in this Current Report on Form 8-K are not complete and are qualified in their entirety by reference to the full text of the exhibits attached hereto.
Forward-Looking Statements
This communication contains forward-looking statements, including the statements regarding the REIT Conversion. These forward-looking statements are based on assumptions and expectations that may not be realized and are inherently subject to numerous risks and uncertainties, which could cause actual results to differ materially from these statements. These risks and uncertainties include, among others, the inability to complete the REIT Conversion in a timely manner, the inability to complete the REIT Conversion due to the failure to satisfy any conditions to completion of the REIT Conversion, including receipt of required third-party consents, the failure of the REIT Conversion to close for any other reason, the effect of the announcements regarding the REIT Conversion on the market price of the Company’s common stock, the possibility that the anticipated benefits of the REIT Conversion will not be realized, or will not be realized within the expected time period, the inability to meet expectations regarding the accounting and tax treatments of the REIT Conversion, the possibility that the REIT Conversion may be more expensive to complete than anticipated, including as a result of unexpected factors or events, diversion of management’s attention from ongoing business operations and opportunities, the impact on us of complying with requirements to qualify as a real estate investment trust under the Internal Revenue Code (the “Code”), the impact of issuing equity, debt or both to satisfy the Code requirement to distribute pre-real estate investment trust earnings and profits and other costs incident to effectuating our plan to so qualify, the impact of the amount and timing of any future distributions by the Company and/or the REIT, the impact of covenants that could prevent us from satisfying the distribution requirements under the Code that must be met in order for us to so qualify, our lack of experience operating as an entity that so qualifies, legislative, administrative, regulatory or other actions affecting real estate investment trusts, including positions taken by the Internal Revenue Service, our ability to achieve our strategic goals, changes in the market price of the REIT’s common stock following the REIT Conversion, our ability to complete non-core asset dispositions, the impact to our deferred tax liability balance if we qualify as a real estate investment trust under the Code, the state of the economy and financial markets generally and the effect on our industry, and the market for our common stock. For additional information regarding factors that may cause actual results to differ materially from those indicated in our forward-looking statements, we refer you to the risk factors included in Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, as amended, as updated by annual, quarterly and other reports and documents that we file with the SEC. We caution investors not to place undue reliance on the forward-looking statements contained in this communication. These statements speak only as of the date of this communication, and we undertake no obligation to update or revise these statements, whether as a result of new information, future events or otherwise, except as may be required by law.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
The exhibits set forth in the Exhibit Index to this Current Report on Form 8-K are incorporated herein by reference.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| | FOREST CITY ENTERPRISES, INC. |
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Date: | November 23, 2015 | By: | /s/ ROBERT G. O'BRIEN |
| | Name: | Robert G. O’Brien |
| | Title: | Executive Vice President and Chief Financial Officer |
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EXHIBIT INDEX
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Exhibit No. | | Description |
4.1 | — | Second Supplemental Indenture to the Indenture dated as of October 26, 2009, with respect to Forest City Enterprises, Inc.’s (the “Company”) 5.00% Convertible Senior Notes due 2016 (the “5.00% Notes”), effecting, as of December 31, 2015, Forest City Realty Trust Inc.’s assumption of all of the Company’s obligations with respect to the 5.00% Notes. |
4. 2 | — | Second Supplemental Indenture to the Indenture dated as of July 19, 2011, with respect to Forest City Enterprises, Inc.’s (the “Company”) 4.25% Convertible Senior Notes due 2018 (the “4.25% Notes”), effecting, as of December 31, 2015, Forest City Realty Trust Inc.’s assumption of all of the Company’s obligations with respect to the 4.25% Notes. |
4.3 | — | First Supplemental Indenture to the Indenture dated as of July 19, 2013, with respect to Forest City Enterprises, Inc.’s (the “Company”) 3.625% Convertible Senior Notes due 2020 (the “3.625% Notes”), effecting, as of December 31, 2015, Forest City Realty Trust Inc.’s assumption of all of the Company’s obligations with respect to the 3.625% Notes. |
10.1 | — | Credit Agreement, dated as of November 17, 2015, by and among Forest City Enterprises, Inc., as Borrower, Bank of America, N.A., as Administrative Agent, Bank of America, N.A. and PNC Bank, National Association as Swing Line Lenders and L/C Issuers, PNC Bank, National Association as Syndication Agent, Citibank N.A., KeyBank National Association and The Bank of New York Mellon, as Co-Documentation Agents, and the various lenders party thereto. |
10.2 | — | Form of Indemnification Agreement. |
10.3 | — | David J. LaRue’s Employment Agreement, effective as of January 1, 2016. |
10.4 | — | Robert G. O’Brien’s Employment Agreement, effective as of January 1, 2016. |
10.5 | — | James A. Ratner’s Employment Agreement, effective as of January 1, 2016. |
10.6 | — | Ronald A. Ratner’s Employment Agreement, effective as of January 1, 2016. |
10.7 | — | David J. LaRue’s Death Benefit Agreement, effective as of January 1, 2016. |
10.8 | — | Robert G. O’Brien’s Death Benefit Agreement, effective as of January 1, 2016. |
10.9 | — | Assignment and Assumption Agreement, effective as of 11:59 p.m. on December 31, 2015, by and between Forest City Enterprises, Inc. (the “Company”) and Forest City Realty Trust Inc. (the “REIT”) regarding the REIT’s assumption of all equity compensation plans sponsored and maintained by the Company. |
10.10 | — | Assignment and Assumption Agreement, effective as of 11:59 p.m. on December 31, 2015, by and between Forest City Enterprises, Inc. (the “Company”) and Forest City Employer, LLC (“FCE EmployerCo”) regarding FCE EmployerCo’s assumption of nonqualified deferred compensation plans, cash-based incentive plans and 401(k) plan sponsored and maintained by the Company. |
10.11 | — | Forest City Realty Trust, Inc. 1994 Stock Plan. |
10.12 | — | Form of Stock Option Agreement. |
10.13 | — | Form of Restricted Stock Agreement. |
10.14 | — | Form of Performance Shares Agreement. |
10.15 | — | Forest City Realty Trust, Inc. Deferred Compensation Plan for Nonemployee Directors. |
10.16 | — | Forest City Realty Trust, Inc. 2005 Deferred Compensation Plan for Nonemployee Directors. |
10.17 | — | First Amendment to the 401(k) Plan (n/k/a Forest City Employer, LLC 401(k) Employee Savings Plan & Trust I). |
10.18 | — | Forest City Employer, LLC Deferred Compensation Plan for Executives. |
10.19 | — | Forest City Employer, LLC 2005 Deferred Compensation Plan for Executives. |
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10.20 | — | Forest City Employer, LLC Unfunded Nonqualified Supplemental Retirement Plan for Executives. |
10.21 | — | Forest City Employer, LLC Executive Short-Term Incentive Plan. |
10.22 | — | Forest City Employer, LLC Executive Long-Term Incentive Plan. |
10.23 | — | Forest City Employer, LLC Senior Management Short-Term Incentive Plan. |
10.24 | — | Forest City Employer, LLC Senior Management Long-Term Incentive Plan. |
99.1 | — | Press Release, dated November 19, 2015. |
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FOREST CITY ENTERPRISES, INC.,
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FOREST CITY REALTY TRUST, INC., |
AND |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee |
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SECOND SUPPLEMENTAL INDENTURE |
Dated as of November 20, 2015 |
TO |
INDENTURE |
Dated as of October 26, 2009 |
5.00% Convertible Senior Notes due 2016 |
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 20, 2015, among Forest City Enterprises, Inc., an Ohio corporation (“Forest City”), Forest City Realty Trust, Inc., a Maryland corporation and wholly-owned subsidiary of Forest City (“Forest City REIT”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee under the Indenture referred to below (the “Trustee”). Capitalized terms used herein and not defined shall have the meanings set forth in the Indenture.
WITNESSETH:
WHEREAS, Forest City and the Trustee are parties to that certain Indenture, dated as of October 26, 2009, as amended and supplemented by the First Supplemental Indenture, dated as of November 21, 2013, between Forest City and the Trustee (as amended and supplemented, the “Indenture”), pursuant to which Forest City issued $200 million in aggregate principal amount of 5.00% Convertible Senior Notes due 2016 (the “Notes”);
WHEREAS, Forest City, Forest City REIT, FCILP, LLC, a Delaware limited liability company and wholly-owned subsidiary of Forest City REIT (“FCILP”), and FCE Merger Sub, Inc., an Ohio corporation and direct corporate subsidiary of Forest City REIT and FCILP (“Merger Sub”), have entered into that certain Agreement and Plan of Merger, dated as of September 15, 2015 (the “Merger Agreement”), pursuant to which (i) Merger Sub will merge with and into Forest City (the “Merger”), with Forest City as the surviving corporation in the Merger (the “Surviving Company”), (ii) each outstanding share of Forest City Common Stock will be converted into the right to receive one share of Class A common stock, par value $0.01 per share, of Forest City REIT, and each outstanding share of Forest City Class B common stock, par value $0.33 1/3 per share, will be converted into the right to receive one share of Class B common stock, par value $0.01 per share, of Forest City REIT, (iii) the Surviving Company will become a wholly-owned subsidiary of Forest City REIT, and (iv) immediately following the Merger, the Surviving Company will convert into a limited partnership organized under the laws of Delaware;
WHEREAS, the Merger will be consummated effective as of December 31, 2015 (the “Effective Time”) pursuant to the Merger Agreement and the Certificate of Merger filed with the Secretary of State of the State of Ohio;
WHEREAS, the Merger constitutes a “Merger Event” under the Indenture;
WHEREAS, in accordance with Sections 10.01(a) and 13.06 of the Indenture, it is a condition precedent to the consummation of the Merger that Forest City and Forest City REIT execute and deliver to the Trustee a supplemental indenture that provides that Forest City REIT expressly assumes all the obligations of Forest City under the Notes and the Indenture;
WHEREAS, Section 9.01(b) of the Indenture provides, among other things, that Forest City and the Trustee may enter into a supplemental indenture to the Indenture without the consent of the holders of any of the outstanding Notes for the purpose of evidencing the assumption by a Successor
Company of the obligations of Forest City under the Indenture pursuant to Article 10 and to make a change that does not adversely affect the rights of any holder;
WHEREAS, the Board of Directors of each of Forest City and Forest City REIT has duly authorized this Supplemental Indenture by resolutions adopted on November 18, 2015, and the entry into this Supplemental Indenture by the parties hereto is permitted by the provisions of the Indenture;
WHEREAS, the amendments effected hereby do not adversely affect the rights of any holder;
WHEREAS, Forest City has requested that the Trustee execute and deliver this Supplemental Indenture; and
WHEREAS, in accordance with the Indenture, Forest City has heretofore delivered or is delivering contemporaneously herewith to the Trustee an Officer’s Certificate and an Opinion of Counsel.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
ASSUMPTION
Section 1.1 Assumption of Obligations. Effective as of the Effective Time, Forest City hereby assigns to Forest City REIT, and Forest City REIT expressly assumes by this Supplemental Indenture, all of the obligations of Forest City under the Notes and the Indenture, including the due and punctual payment of the principal of and accrued and unpaid interest (including Additional Interest, if any) on all of the Notes, the due and punctual settlement of the conversion of the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Company.
Section 1.2 Successor Corporation Substituted. Effective as of the Effective Time, Forest City REIT shall succeed to, and be substituted for (so that from and after the Effective Time, the provisions of the Indenture referring to the “Company” shall refer instead to Forest City REIT and not to Forest City, and the provisions of the Indenture referring to “Common Stock” shall refer instead to Class A common stock, par value $0.01 per share, of Forest City REIT and not to Common Stock of Forest City), and may exercise every right and power of, Forest City under the Indenture with the same effect as if Forest City REIT had been named as the Company therein.
Section 1.3 Effect of Supplemental Indenture; Timing of Amendments. Effective as of the Effective Time, the Indenture shall be amended and supplemented in accordance herewith, the terms and conditions of this Supplemental Indenture shall be part of the terms and conditions of the Indenture for any and all purposes, and all the terms and conditions of both shall be read together as though they constitute one and the same instrument, except that in the case of conflict, the
provisions of this Supplemental Indenture will control. In the event that the Merger is not consummated, this Supplemental Indenture shall be null and void and of no force or effect.
ARTICLE 2
MISCELLANEOUS
Section 2.1 Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 2.2 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.3 Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Issuer.
Section 2.4 Multiple Counterparts. The parties may sign multiple counterparts of this Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement.
Section 2.5 Headings. The headings of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date and year first above written.
FOREST CITY ENTERPRISES, INC.
By: /s/ ROBERT G. O’BRIEN
Name: Robert G. O’Brien
Title: Executive Vice President and
Chief Financial Officer
FOREST CITY REALTY TRUST, INC.
By: /s/ ROBERT G. O’BRIEN
Name: Robert G. O’Brien
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By: /s/ LAWRENCE M. KUSCH
Name: Lawrence M. Kusch
Title: Vice President
[Signature Page to Supplemental Indenture]
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FOREST CITY ENTERPRISES, INC.,
|
FOREST CITY REALTY TRUST, INC., |
AND |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee |
|
SECOND SUPPLEMENTAL INDENTURE |
Dated as of November 20, 2015 |
TO |
INDENTURE |
Dated as of July 19, 2011 |
4.25% Convertible Senior Notes due 2018 |
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 20, 2015, among Forest City Enterprises, Inc., an Ohio corporation (“Forest City”), Forest City Realty Trust, Inc., a Maryland corporation and wholly-owned subsidiary of Forest City (“Forest City REIT”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee under the Indenture referred to below (the “Trustee”). Capitalized terms used herein and not defined shall have the meanings set forth in the Indenture.
WITNESSETH:
WHEREAS, Forest City and the Trustee are parties to that certain Indenture, dated as of July 19, 2011, as amended and supplemented by the First Supplemental Indenture, dated as of November 21, 2013, between Forest City and the Trustee (as amended and supplemented, the “Indenture”), pursuant to which Forest City issued $350 million in aggregate principal amount of 4.25% Convertible Senior Notes due 2018 (the “Notes”);
WHEREAS, Forest City, Forest City REIT, FCILP, LLC, a Delaware limited liability company and wholly-owned subsidiary of Forest City REIT (“FCILP”), and FCE Merger Sub, Inc., an Ohio corporation and direct corporate subsidiary of Forest City REIT and FCILP (“Merger Sub”), have entered into that certain Agreement and Plan of Merger, dated as of September 15, 2015 (the “Merger Agreement”), pursuant to which (i) Merger Sub will merge with and into Forest City (the “Merger”), with Forest City as the surviving corporation in the Merger (the “Surviving Company”), (ii) each outstanding share of Forest City Common Stock will be converted into the right to receive one share of Class A common stock, par value $0.01 per share, of Forest City REIT, and each outstanding share of Forest City Class B common stock, par value $0.33 1/3 per share, will be converted into the right to receive one share of Class B common stock, par value $0.01 per share, of Forest City REIT, (iii) the Surviving Company will become a wholly-owned subsidiary of Forest City REIT, and (iv) immediately following the Merger, the Surviving Company will convert into a limited partnership organized under the laws of Delaware;
WHEREAS, the Merger will be consummated effective as of December 31, 2015 (the “Effective Time”) pursuant to the Merger Agreement and the Certificate of Merger filed with the Secretary of State of the State of Ohio;
WHEREAS, the Merger constitutes a “Merger Event” under the Indenture;
WHEREAS, in accordance with Sections 10.01(a) and 13.06 of the Indenture, it is a condition precedent to the consummation of the Merger that Forest City and Forest City REIT execute and deliver to the Trustee a supplemental indenture that provides that Forest City REIT expressly assumes all the obligations of Forest City under the Notes and the Indenture;
WHEREAS, Section 9.01(b) of the Indenture provides, among other things, that Forest City and the Trustee may enter into a supplemental indenture to the Indenture without the consent of the holders of any of the outstanding Notes for the purpose of evidencing the assumption by a Successor
Company of the obligations of Forest City under the Indenture pursuant to Article 10 and to make a change that does not adversely affect the rights of any holder;
WHEREAS, the Board of Directors of each of Forest City and Forest City REIT has duly authorized this Supplemental Indenture by resolutions adopted on November 18, 2015, and the entry into this Supplemental Indenture by the parties hereto is permitted by the provisions of the Indenture;
WHEREAS, the amendments effected hereby do not adversely affect the rights of any holder;
WHEREAS, Forest City has requested that the Trustee execute and deliver this Supplemental Indenture; and
WHEREAS, in accordance with the Indenture, Forest City has heretofore delivered or is delivering contemporaneously herewith to the Trustee an Officer’s Certificate and an Opinion of Counsel.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
ASSUMPTION
Section 1.1 Assumption of Obligations. Effective as of the Effective Time, Forest City hereby assigns to Forest City REIT, and Forest City REIT expressly assumes by this Supplemental Indenture, all of the obligations of Forest City under the Notes and the Indenture, including the due and punctual payment of the principal of and accrued and unpaid interest (including Additional Interest, if any) on all of the Notes, the due and punctual settlement of the conversion of the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Company.
Section 1.2 Successor Corporation Substituted. Effective as of the Effective Time, Forest City REIT shall succeed to, and be substituted for (so that from and after the Effective Time, the provisions of the Indenture referring to the “Company” shall refer instead to Forest City REIT and not to Forest City, and the provisions of the Indenture referring to “Common Stock” shall refer instead to Class A common stock, par value $0.01 per share, of Forest City REIT and not to Common Stock of Forest City), and may exercise every right and power of, Forest City under the Indenture with the same effect as if Forest City REIT had been named as the Company therein.
Section 1.3 Effect of Supplemental Indenture; Timing of Amendments. Effective as of the Effective Time, the Indenture shall be amended and supplemented in accordance herewith, the terms and conditions of this Supplemental Indenture shall be part of the terms and conditions of the Indenture for any and all purposes, and all the terms and conditions of both shall be read together as though they constitute one and the same instrument, except that in the case of conflict, the
provisions of this Supplemental Indenture will control. In the event that the Merger is not consummated, this Supplemental Indenture shall be null and void and of no force or effect.
ARTICLE 2
MISCELLANEOUS
Section 2.1 Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 2.2 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.3 Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Issuer.
Section 2.4 Multiple Counterparts. The parties may sign multiple counterparts of this Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement.
Section 2.5 Headings. The headings of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date and year first above written.
FOREST CITY ENTERPRISES, INC.
By: /s/ ROBERT G. O’BRIEN
Name: Robert G. O’Brien
Title: Executive Vice President and
Chief Financial Officer
FOREST CITY REALTY TRUST, INC.
By: /s/ ROBERT G. O’BRIEN
Name: Robert G. O’Brien
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By: /s/ LAWRENCE M. KUSCH
Name: Lawrence M. Kusch
Title: Vice President
[Signature Page to Supplemental Indenture]
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FOREST CITY ENTERPRISES, INC.,
|
FOREST CITY REALTY TRUST, INC., |
AND |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee |
|
FIRST SUPPLEMENTAL INDENTURE |
Dated as of November 20, 2015 |
TO |
INDENTURE |
Dated as of July 19, 2013 |
3.625% Convertible Senior Notes due 2020 |
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 20, 2015, among Forest City Enterprises, Inc., an Ohio corporation (“Forest City”), Forest City Realty Trust, Inc., a Maryland corporation and wholly-owned subsidiary of Forest City (“Forest City REIT”), and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee under the Indenture referred to below (the “Trustee”). Capitalized terms used herein and not defined shall have the meanings set forth in the Indenture.
WITNESSETH:
WHEREAS, Forest City and the Trustee are parties to that certain Indenture, dated as of July 19, 2013, between Forest City and the Trustee (as amended and supplemented, the “Indenture”), pursuant to which Forest City issued $300 million in aggregate principal amount of 3.625% Convertible Senior Notes due 2020 (the “Notes”);
WHEREAS, Forest City, Forest City REIT, FCILP, LLC, a Delaware limited liability company and wholly-owned subsidiary of Forest City REIT (“FCILP”), and FCE Merger Sub, Inc., an Ohio corporation and direct corporate subsidiary of Forest City REIT and FCILP (“Merger Sub”), have entered into that certain Agreement and Plan of Merger, dated as of September 15, 2015 (the “Merger Agreement”), pursuant to which (i) Merger Sub will merge with and into Forest City (the “Merger”), with Forest City as the surviving corporation in the Merger (the “Surviving Company”), (ii) each outstanding share of Forest City Common Stock will be converted into the right to receive one share of Class A common stock, par value $0.01 per share, of Forest City REIT, and each outstanding share of Forest City Class B common stock, par value $0.33 1/3 per share, will be converted into the right to receive one share of Class B common stock, par value $0.01 per share, of Forest City REIT, (iii) the Surviving Company will become a wholly-owned subsidiary of Forest City REIT, and (iv) immediately following the Merger, the Surviving Company will convert into a limited partnership organized under the laws of Delaware;
WHEREAS, the Merger will be consummated effective as of December 31, 2015 (the “Effective Time”) pursuant to the Merger Agreement and the Certificate of Merger filed with the Secretary of State of the State of Ohio;
WHEREAS, the Merger constitutes a “Merger Event” under the Indenture;
WHEREAS, in accordance with Sections 10.01(a) and 13.06 of the Indenture, it is a condition precedent to the consummation of the Merger that Forest City and Forest City REIT execute and deliver to the Trustee a supplemental indenture that provides that Forest City REIT expressly assumes all the obligations of Forest City under the Notes and the Indenture;
WHEREAS, Section 9.01(b) of the Indenture provides, among other things, that Forest City and the Trustee may enter into a supplemental indenture to the Indenture without the consent of the holders of any of the outstanding Notes for the purpose of evidencing the assumption by a Successor Company of the obligations of Forest City under the Indenture pursuant to Article 10 and to make a change that does not adversely affect the rights of any holder;
WHEREAS, the Board of Directors of each of Forest City and Forest City REIT has duly authorized this Supplemental Indenture by resolutions adopted on November 18, 2015, and the entry into this Supplemental Indenture by the parties hereto is permitted by the provisions of the Indenture;
WHEREAS, the amendments effected hereby do not adversely affect the rights of any holder;
WHEREAS, Forest City has requested that the Trustee execute and deliver this Supplemental Indenture; and
WHEREAS, in accordance with the Indenture, Forest City has heretofore delivered or is delivering contemporaneously herewith to the Trustee an Officer’s Certificate and an Opinion of Counsel.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
ASSUMPTION
Section 1.1 Assumption of Obligations. Effective as of the Effective Time, Forest City hereby assigns to Forest City REIT, and Forest City REIT expressly assumes by this Supplemental Indenture, all of the obligations of Forest City under the Notes and the Indenture, including the due and punctual payment of the principal of and accrued and unpaid interest (including Additional Interest, if any) on all of the Notes, the due and punctual settlement of the conversion of the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Company.
Section 1.2 Successor Corporation Substituted. Effective as of the Effective Time, Forest City REIT shall succeed to, and be substituted for (so that from and after the Effective Time, the provisions of the Indenture referring to the “Company” shall refer instead to Forest City REIT and not to Forest City, and the provisions of the Indenture referring to “Common Stock” shall refer instead to Class A common stock, par value $0.01 per share, of Forest City REIT and not to Common Stock of Forest City), and may exercise every right and power of, Forest City under the Indenture with the same effect as if Forest City REIT had been named as the Company therein.
Section 1.3 Effect of Supplemental Indenture; Timing of Amendments. Effective as of the Effective Time, the Indenture shall be amended and supplemented in accordance herewith, the terms and conditions of this Supplemental Indenture shall be part of the terms and conditions of the Indenture for any and all purposes, and all the terms and conditions of both shall be read together as though they constitute one and the same instrument, except that in the case of conflict, the provisions of this Supplemental Indenture will control. In the event that the Merger is not consummated, this Supplemental Indenture shall be null and void and of no force or effect.
ARTICLE 2
MISCELLANEOUS
Section 2.1 Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of a Note heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 2.2 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.3 Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Issuer.
Section 2.4 Multiple Counterparts. The parties may sign multiple counterparts of this Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement.
Section 2.5 Headings. The headings of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date and year first above written.
FOREST CITY ENTERPRISES, INC.
By: /s/ ROBERT G. O’BRIEN
Name: Robert G. O’Brien
Title: Executive Vice President and
Chief Financial Officer
FOREST CITY REALTY TRUST, INC.
By: /s/ ROBERT G. O’BRIEN
Name: Robert G. O’Brien
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By: /s/ LAWRENCE M. KUSCH
Name: Lawrence M. Kusch
Title: Vice President
[Signature Page to Supplemental Indenture]
CREDIT AGREEMENT
Dated as of November 17, 2015
among
FOREST CITY ENTERPRISES, INC.,
as Borrower,
CERTAIN AFFILIATES OF
FOREST CITY ENTERPRISES, INC.
FROM TIME TO TIME PARTY HERETO,
as Subsidiary Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK OF AMERICA, N.A.
and
PNC BANK, NATIONAL ASSOCIATION,
as Swing Line Lenders and L/C Issuers,
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent
CITIBANK, N.A.,
KEYBANK NATIONAL ASSOCIATION
and
THE BANK OF NEW YORK MELLON,
as Co-Documentation Agents
and
The Lenders Party Hereto
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Section | | Page |
ARTICLE I | DEFINITIONS AND ACCOUNTING TERMS | 1 |
1.01 | Defined Terms | 1 |
1.02 | Other Interpretive Provisions | 44 |
1.03 | Accounting Terms | 45 |
1.04 | Rounding | 45 |
1.05 | Times of Day; Rates | 46 |
1.06 | Letter of Credit Amounts | 46 |
ARTICLE II | THE COMMITMENTS AND CREDIT EXTENSIONS | 46 |
2.01 | Committed Loans | 46 |
2.02 | Borrowings, Conversions and Continuations of Committed Loans | 46 |
2.03 | Letters of Credit | 48 |
2.04 | Swing Line Loans | 58 |
2.05 | Prepayments | 61 |
2.06 | Termination or Reduction of Commitments | 62 |
2.07 | Repayment of Loans | 62 |
2.08 | Interest | 62 |
2.09 | Fees | 63 |
2.10 | Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate | 64 |
2.11 | Evidence of Debt | 64 |
2.12 | Payments Generally; Administrative Agent’s Clawback | 65 |
2.13 | Sharing of Payments by Lenders | 67 |
2.14 | Extension of Maturity Date | 68 |
2.15 | Increase in Facility | 69 |
2.16 | Cash Collateral | 71 |
2.17 | Defaulting Lenders | 72 |
ARTICLE III | TAXES, YIELD PROTECTION AND ILLEGALITY | 74 |
3.01 | Taxes | 74 |
3.02 | Illegality | 79 |
3.03 | Inability to Determine Rates | 80 |
3.04 | Increased Costs; Reserves on Eurodollar Rate Loans | 81 |
3.05 | Compensation for Losses | 83 |
3.06 | Mitigation Obligations; Replacement of Lenders | 84 |
3.07 | Survival | 84 |
ARTICLE IV | CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 84 |
4.01 | Conditions of Initial Credit Extension | 84 |
4.02 | Conditions to all Credit Extensions | 87 |
ARTICLE V | REPRESENTATIONS AND WARRANTIES | 87 |
5.01 | Existence, Qualification and Power | 87 |
5.02 | Authorization; No Contravention | 88 |
5.03 | Governmental Authorization; Other Consents | 88 |
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5.04 | Binding Effect | 88 |
5.05 | Financial Statements; No Material Adverse Effect | 88 |
5.06 | Litigation | 89 |
5.07 | No Default | 89 |
5.08 | Ownership of Property | 89 |
5.09 | Environmental Compliance | 90 |
5.10 | Insurance | 90 |
5.11 | Taxes | 90 |
5.12 | ERISA Compliance | 90 |
5.13 | Subsidiaries | 91 |
5.14 | Margin Regulations; Investment Company Act | 91 |
5.15 | Disclosure | 91 |
5.16 | Compliance with Laws | 92 |
5.17 | Taxpayer Identification Number | 92 |
5.18 | OFAC; Designated Jurisdictions | 92 |
5.19 | REIT Status; Stock Exchange Listing | 92 |
5.20 | Unencumbered Pool Properties | 92 |
5.21 | Anti-Money Laundering Laws; Anti-Corruption Laws | 92 |
ARTICLE VI | AFFIRMATIVE COVENANTS | 93 |
6.01 | Financial Statements | 93 |
6.02 | Certificates; Other Information | 94 |
6.03 | Notices | 96 |
6.04 | Payment of Taxes | 97 |
6.05 | Preservation of Existence, Etc. | 97 |
6.06 | Maintenance of Properties | 97 |
6.07 | Maintenance of Insurance | 97 |
6.08 | Compliance with Laws | 97 |
6.09 | Books and Records | 97 |
6.10 | Inspection Rights | 98 |
6.11 | Use of Proceeds | 98 |
6.12 | Additional Unencumbered Pool Properties and Guarantors | 98 |
6.13 | Compliance with Environmental Laws | 100 |
6.14 | Further Assurances | 100 |
6.15 | Maintenance of REIT Status; New York Stock Exchange | 101 |
6.16 | Anti-Corruption Laws | 101 |
ARTICLE VII | NEGATIVE COVENANTS | 101 |
7.01 | Indebtedness | 101 |
7.02 | Fundamental Changes; Dispositions | 101 |
7.03 | Minimum Unencumbered Property Condition | 102 |
7.04 | Restricted Payments | 102 |
7.05 | Change in Nature of Business | 102 |
7.06 | Transactions with Affiliates | 102 |
7.07 | Burdensome Agreements | 103 |
7.08 | Use of Proceeds | 103 |
7.09 | Financial Covenants | 103 |
7.10 | Accounting Changes | 104 |
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7.11 | Amendments of Organization Documents | 104 |
7.12 | Sanctions; Anti-Money Laundering Laws; Anti-Corruption Laws | 104 |
ARTICLE VIII | EVENTS OF DEFAULT AND REMEDIES | 105 |
8.01 | Events of Default | 105 |
8.02 | Remedies Upon Event of Default | 108 |
8.03 | Application of Funds | 108 |
ARTICLE IX | ADMINISTRATIVE AGENT | 110 |
9.01 | Appointment and Authority | 110 |
9.02 | Rights as a Lender | 110 |
9.03 | Exculpatory Provisions | 110 |
9.04 | Reliance by Administrative Agent | 111 |
9.05 | Delegation of Duties | 112 |
9.06 | Resignation of Administrative Agent | 112 |
9.07 | Non-Reliance on Administrative Agent and Other Lenders | 113 |
9.08 | No Other Duties, Etc. | 114 |
9.09 | Administrative Agent May File Proofs of Claim | 114 |
9.10 | Guaranty Matters | 115 |
9.11 | Lender Derivatives Contracts and Lender Cash Management Agreements | 115 |
ARTICLE X | CONTINUING GUARANTY | 115 |
10.01 | Guaranty | 115 |
10.02 | Rights of Lenders | 116 |
10.03 | Certain Waivers | 116 |
10.04 | Obligations Independent | 117 |
10.05 | Subrogation | 117 |
10.06 | Termination | 117 |
10.07 | Subordination | 118 |
10.08 | Stay of Acceleration | 118 |
10.09 | Condition of the Obligors | 118 |
10.10 | Contribution | 118 |
10.11 | Keepwell | 119 |
ARTICLE XI | MISCELLANEOUS | 120 |
11.01 | Amendments, Etc | 120 |
11.02 | Notices; Effectiveness; Electronic Communications | 122 |
11.03 | No Waiver; Cumulative Remedies; Enforcement | 124 |
11.04 | Expenses; Indemnity; Damage Waiver | 124 |
11.05 | Payments Set Aside | 127 |
11.06 | Successors and Assigns | 127 |
11.07 | Treatment of Certain Information; Confidentiality | 133 |
11.08 | Right of Setoff | 135 |
11.09 | Interest Rate Limitation | 135 |
11.10 | Counterparts; Effectiveness | 135 |
11.11 | Survival of Representations and Warranties | 136 |
11.12 | Severability | 136 |
11.13 | Replacement of Lenders | 136 |
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11.14 | Governing Law; Jurisdiction; Etc. | 137 |
11.15 | Waiver of Jury Trial | 138 |
11.16 | No Advisory or Fiduciary Responsibility | 138 |
11.17 | Electronic Execution of Assignments and Certain Other Documents | 139 |
11.18 | USA PATRIOT Act | 139 |
11.19 | Releases of Subsidiary Guarantors; Re-Designation of Unencumbered Pool Properties | 140 |
11.20 | ENTIRE AGREEMENT | 144 |
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SCHEDULES | | |
1.01 | Existing Letters of Credit | |
2.01 | Commitments and Applicable Percentages | |
5.13 | Subsidiaries; Jurisdiction of Incorporation/Organization | |
11.02 | Administrative Agent’s Office; Certain Addresses for Notices | |
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EXHIBITS | | |
Form of | | |
A | Committed Loan Notice | |
B | Swing Line Loan Notice | |
C | Note | |
D | Compliance Certificate | |
E-1 | Assignment and Assumption | |
E-2 | Administrative Questionnaire | |
F | Joinder Agreement | |
G | U.S. Tax Compliance Certificates | |
H | Solvency Certificate | |
I | Designation Notice | |
J | Prepayment Notice | |
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CREDIT AGREEMENT
This CREDIT AGREEMENT (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of November 17, 2015, among FOREST CITY ENTERPRISES, INC., an Ohio corporation, certain affiliates of the Borrower from time to time party hereto, as Guarantors, each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A. (together with its successors, “Bank of America”), as Administrative Agent, and Bank of America and PNC BANK, NATIONAL ASSOCIATION (together with its successors, “PNC”), as Swing Line Lenders and L/C Issuers.
The Borrower has requested that the Lenders provide a senior unsecured revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article I. DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Act” has the meaning specified in Section 11.18.
“Additional Obligations” means all obligations arising under Lender Derivatives Contracts or Lender Cash Management Agreements.
“Adjusted EBITDA” means, for any period, (a) EBITDA for such period minus (b) the aggregate Capital Reserves for all Properties during such period.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate Deficit Amount” has the meaning specified in Section 10.10.
“Aggregate Excess Amount” has the meaning specified in Section 10.10.
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Facility represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.17. If the commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments made in accordance with the terms of this Agreement. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or New Lender Joinder Agreement pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, for any day, with respect to any Eurodollar Rate Loan, Base Rate Loan, Letter of Credit Fee and Facility Fee, as the case may be:
(a) until the Investment Grade Pricing Effective Date, the applicable rate per annum set forth below, based upon the range into which the Total Leverage Ratio then falls in accordance with the following table (the “Leverage-Based Applicable Rate”):
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Pricing Level | Total Leverage Ratio | Facility Fee | Eurodollar Rate Loan and Letter of Credit Fee | Base Rate Loan |
Category 1 | <40% | 0.20% | 1.15% | 0.15% |
Category 2 | >40% - <45% | 0.20% | 1.20% | 0.20% |
Category 3 | >45% - <50% | 0.25% | 1.25% | 0.25% |
Category 4 | >50% - <55% | 0.30% | 1.30% | 0.30% |
Category 5 | >55% - <60% | 0.35% | 1.55% | 0.55% |
Category 6 | > 60% | 0.35% | 1.85% | 0.85% |
The Total Leverage Ratio shall be determined as of the end of each fiscal quarter based on the financial statements and related Compliance Certificate delivered pursuant to Section 6.01 and Section 6.02(a), respectively, in respect of such fiscal quarter, and each change in rates resulting from a change in the Total Leverage Ratio shall be effective from and including the first Business Day immediately following the date when the Administrative Agent receives such financial statements and related Compliance Certificate indicating such change but excluding the effective date of the next such change. Notwithstanding the foregoing, if either the financial statements or related Compliance Certificate are not delivered when due in accordance with Section 6.01 and Section 6.02(a), respectively, then the highest pricing (at Pricing Level Category 6) shall apply as of the first Business Day after the date on which such financial statements and related Compliance Certificate were required to have been delivered and shall continue to apply until the first Business Day immediately following the date such financial statements and related Compliance Certificate are delivered in accordance with Section 6.01 and Section 6.02(a), respectively, whereupon the Applicable Rate shall be adjusted based upon the calculation of the Total Leverage Ratio contained
in such Compliance Certificate. The Applicable Rate in effect from the Closing Date through the first Business Day immediately following the date financial statements and a Compliance Certificate are required to be delivered pursuant to Section 6.01 and Section 6.02(a), respectively, for the fiscal quarter ending December 31, 2015 shall be determined based upon the Total Leverage Ratio as set forth in the Pro Forma Closing Date Compliance Certificate. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b); or
(b) at all times on and after the Investment Grade Pricing Effective Date, the applicable rate per annum set forth below, based upon such Debt Ratings as set forth below applicable on such date (the “Ratings-Based Applicable Rate”):
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Pricing Level | Debt Ratings (S&P / Moody's): | Facility Fee | Eurodollar Rate and Letter of Credit Margin | Base Rate Margin |
Category 1 | ≥ A- / A3 | 0.125% | 0.85% | 0.00% |
Category 2 | BBB+ / Baa1 | 0.150% | 0.90% | 0.00% |
Category 3 | BBB / Baa2 | 0.200% | 1.00% | 0.00% |
Category 4 | BBB- / Baa3 | 0.250% | 1.20% | 0.20% |
Category 5 | < BBB- / Baa3 (or unrated) | 0.300% | 1.55% | 0.55% |
For purposes hereof, the term “Debt Rating” refers to the long term, unsecured, senior, non-credit enhanced debt rating (regardless of watch status) of the Parent by S&P or Moody’s (collectively, the “Debt Ratings”); provided that if at any time after the Investment Grade Pricing Effective Date, (i) the Parent has two (2) Debt Ratings, and such Debt Ratings are not equivalent, then: (A) if the difference between such Debt Ratings is one ratings category (e.g. Baa2 by Moody's and BBB- by S&P), the Applicable Rate shall be determined based on the higher of the Debt Ratings; and (B) if the difference between such Debt Ratings is two ratings categories (e.g. Baa1 by Moody's and BBB- by S&P) or more, the Applicable Rate shall be determined based on the Debt Rating that is one higher than the lower Debt Rating and (ii) the Parent has no Debt Ratings, then the Applicable Rate shall be at Pricing Level Category 5. Initially, the Ratings-Based Applicable Rate shall be determined based upon the Debt Ratings specified in the certificate delivered pursuant to clause (ii) of the definition of “Investment Grade Pricing Effective Date.” Thereafter, each change in the Ratings-Based Applicable Rate resulting from a publicly announced change in a Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to Section 6.03(e) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and PNC Capital Markets LLC, each in its capacity as a joint lead arranger and joint bookrunner.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
“Audited Financial Statements” means the audited consolidated financial statements for the year ended December 31, 2014 (consisting of a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations, changes in shareholders’ equity, and cash flows), including the notes thereto, and the unaudited Pro Rata Consolidation Method financial statements for the year ended December 31, 2014 (consisting of a balance sheet of the Borrower, its Subsidiaries and its Unconsolidated Affiliates as at the end of such fiscal year, and the related statements of operations).
“Availability Period” means the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Facility pursuant to Section 2.06, and (iii) the date of termination of the commitment of all of the Lenders to make Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
“Bank of America” has the meaning specified in the introductory paragraph hereto.
“Bankruptcy Plan” has the meaning specified in Section 11.06(g)(iii).
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%; and if Base Rate shall be less than zero, such rate shall be deemed zero. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such
prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Borrower” means Forest City Enterprises, Inc., an Ohio corporation; provided that upon and following consummation of the conversion of Forest City Enterprises, Inc. into Forest City Enterprises, L.P., a Delaware limited partnership, in connection with the consummation of the REIT Conversion, all references to the “Borrower” or to “Forest City Enterprises, Inc.” herein and in any of the other Loan Documents shall be deemed to be references to Forest City Enterprises, L.P., a Delaware limited partnership.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.
“Capital Reserves” means, for any period, and with respect to any Property, determined based on the Pro Rata Consolidation Method, an amount equal to (a) for any commercial Property which is not an apartment Property (i) the aggregate square footage of all completed space of such Property multiplied by (ii) $0.20 and (b) for any apartment Property (i) the number of apartment units located on such Property multiplied by (ii) $200.
“Capitalization Rate” means (a) 6.00% for office Properties located in the following cities: New York City (including Brooklyn), San Francisco, Los Angeles, and Boston (including, for this purpose, Cambridge) and 6.50% for all other office Properties, (b) 6.00% for the retail Properties known as Short Pump Town Center (Richmond, VA), Victoria Gardens (Rancho Cucamonga, CA) and San Francisco Center (San Francisco, CA) and 6.50% for all other retail Properties and (c) 6.00% for multifamily apartment Properties.
“Capitalized Lease Obligation” means obligations under a lease (or other arrangement conveying the right to use property) to pay rent or other amounts that are required to be capitalized for financial reporting purposes in accordance with GAAP. For purposes hereof, the amount of a Capitalized Lease Obligation of any Person is the capitalized amount of such obligation as would be required to be reflected on a consolidated balance sheet of such Person prepared in accordance with the Pro Rata Consolidation Method.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash
or deposit account balances or, if the Administrative Agent and the L/C Issuer benefitting from such collateral shall agree in their sole discretion, other credit support, in each case, pursuant to documentation in form and substance satisfactory to the Administrative Agent and such L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means the following:
(a) securities issued, guaranteed or insured by the United States, any state, district or territory of the United States or any of their respective agencies with maturities of not more than one (1) year from the date acquired;
(b) banker’s acceptances and certificates of deposit with maturities of not more than one (1) year from the date acquired issued by a United States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $250,000,000 and which bank or its holding company has a short term commercial paper rating of at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s;
(c) reverse repurchase agreements with terms of not more than seven (7) days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above;
(d) commercial paper issued by any Person organized under the laws of the United States or any state, district or territory thereof or by any foreign country recognized by the United States and rated at least P-2 (or the then equivalent grade) by Moody's or at least A-2 or the equivalent thereof by S&P (or reasonably equivalent ratings of another internationally recognized rating agency), in each case, with maturities of not more than one (1) year from the date acquired;
(e) Indebtedness issued by Persons with a rating of at least A-2 by Moody’s or A by S&P (or reasonably equivalent ratings of another internationally recognized rating agency), in each case, with maturities not exceeding one (1) year from the date of acquisition; and
(f) investments in money market funds registered under the Investment Company Act of 1940, as amended, which have net assets of at least $250,000,000 and at least eighty-five percent (85%) of whose assets consist of securities and other obligations of the type described in clauses (a) through (e) above.
For purposes hereof, the amount of Cash Equivalents owned by any Person at any time shall be the amount of Cash Equivalents owned by such Person as reflected on a consolidated balance sheet of the applicable Person prepared in accordance with the Pro Rata Consolidation Method.
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements; provided, further, that for any of the foregoing to be included as a “Lender Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank must have delivered to the Administrative Agent on or prior to the time of such determination a Designation Notice that has been acknowledged in writing by the Borrower.
“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of any Lender, in its capacity as a party to such Cash Management Agreement, whether or not such Person subsequently ceases to be a Lender or an Affiliate of any Lender.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means an event or series of events by which:
(a) prior to the consummation of the REIT Conversion, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934), other than Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of fifty percent (50%) or more of the Equity Interests of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; and:
(b) upon and following the consummation of the REIT Conversion:
(i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934), other than Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of fifty percent (50%) or more of the Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis; or
(ii) the Parent ceases to be the sole general partner of the Borrower; or
(iii) the Parent ceases to own, directly or indirectly, fifty percent (50%) or more of the Equity Interests in the Borrower, free and clear of all Liens other than Permitted Equity Encumbrances.
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption or New Lender Joinder Agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Committed Loan” has the meaning specified in Section 2.01.
“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Completion Guaranty” means a guarantee of performance by the Borrower or the Parent 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.
“Compliance Certificate” means a certificate, substantially in the form of Exhibit D or otherwise reasonably satisfactory to the Administrative Agent, (a) certifying that the Reporting Entity is in compliance with the provisions of Section 7.09 and the Minimum Unencumbered Property Condition, and including reasonably detailed back-up calculations thereof, including a calculation of the Unencumbered Pool Value as of the last day of the fiscal period covered by such Compliance Certificate, (b) accompanied by (i) a list of all Unencumbered Pool Properties as of the last day of the fiscal period covered by such Compliance Certificate, (ii) a quarterly and year-to-date summary report of Unencumbered NOI attributable to each Unencumbered Pool Property
for the fiscal quarter or year covered by such Compliance Certificate, prepared on a basis consistent with the Audited Financial Statements and otherwise reasonably satisfactory to the Administrative Agent, together with a certification by the chief financial officer of the Reporting Entity that the information contained in the financial statements to which such certificate relates fairly presents Net Operating Income attributable to each Property and Unencumbered NOI attributable to each Unencumbered Pool Property for such periods and (iii) a statement of Funds From Operations.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Group” means the Reporting Entity and its Subsidiaries.
“Consolidated Party” means a member of the Consolidated Group.
“Construction-in-Process” means construction in process, including the portion of the land related to such Construction-in-Process, that is owned by the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates, determined in accordance with the Pro Rata Consolidation Method.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Creditor Parties” means, collectively, the Administrative Agent, the Lenders (including the Swing Line Lenders), the L/C Issuers, the Hedge Banks, the Cash Management Banks and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons to whom the Obligations are owing.
“Customary Recourse Exceptions” means, with respect to any Nonrecourse Indebtedness, exclusions from the exculpation provisions with respect to such Nonrecourse Indebtedness for fraud, misapplication of funds, environmental claims or indemnities, breach of representations or warranties, incurrence of impermissible liens, filing of a voluntary bankruptcy petition, collusive involuntary bankruptcy, impermissible transfers or dispositions, non-compliance with “separateness covenants,” failure to pay taxes and insurance, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financings of real estate.
“Debt Rating” has the meaning specified in the definition of “Applicable Rate.”
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees and Eurodollar Rate Loans, an interest rate equal to (i) the Base Rate, plus (ii) the Applicable Rate then applicable for Base Rate Loans, plus (iii) 2.00% per annum, (b) when used with respect to a Eurodollar Rate Loan, an interest rate equal to (i) the Eurodollar Rate, plus (ii) the Applicable Rate then applicable for Eurodollar Rate Loans, plus (iii) 2.00% per annum and (c) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate then applicable for Letter of Credit Fees, plus 2.00% per annum.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit, Swing Line Loans or amounts payable pursuant to Section 11.04(c)) within two (2) Business Days of the date when required to be funded or paid, (b) has notified the Borrower, the Administrative Agent, any L/C Issuer or any Swing Line Lender in writing that it does not intend or expect to comply with any of its funding obligations hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within two (2) Business Days after written request by the Administrative Agent or the Borrower acting in good faith, to provide a certification in writing from an authorized officer of such Lender to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder and is financially able to meet such obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such certification in form and substance reasonably satisfactory to the Administrative Agent by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuers, the Swing Line Lenders and each other Lender promptly following such determination.
“Derivatives Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Derivatives Obligation” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Derivatives Contracts (which may include a Lender or any Affiliate of a Lender).
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself, or its government, is the subject of any sanctions under any sanctions, prohibitions or requirements imposed by any executive order or by any sanctions program administered by OFAC or the United States Treasury.
“Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit I.
“Development Property” means, on any date, a Property under development or redevelopment on such date which (as determined in good faith by the Borrower or the Parent) (a) has not achieved, does not or will not maintain an Occupancy Rate of 80% or more or, subject to the last sentence of this definition, on which the improvements (other than tenant improvements on unoccupied space) related to the development or redevelopment have not been completed and (b) the Borrower or the Parent has elected to classify as a Development Property. A Development Property shall cease to be a Development Property at such time as either (i) all improvements (other than tenant improvements on unoccupied space) related to the development of such Property have been substantially completed for at least four (4) full fiscal quarters (notwithstanding the fact that such Property may not have achieved an Occupancy Rate of at least 80%) or (ii) the Borrower or the Parent irrevocably elects to no longer treat such Property as a Development Property.
“Direct Owner” has the meaning specified in the definition of “Eligible Property.”
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Institution” means, on any date and subject to the provisions of Section 11.06(g), (a) any Person that is specifically identified by name by the Borrower in a list generally available to the Lenders on the Closing Date (including by posting such notice to the Platform), which list may be updated from time to time after the Closing Date for competitors (and their Affiliates in accordance with clause (b) below) of the Parent, the Borrower or their respective Subsidiaries (but no such update shall apply retroactively to a Person that already acquired and continues to hold (or has and remains committed to acquire, without giving retroactive effect to any such commitment) an assignment or participation interest in any Loan or Commitment); provided that any such Person that holds (or has and remains committed to acquire, without giving retroactive effect to any such commitment) an assignment or participation interest in any Loan or Commitment shall not be permitted to acquire an additional assignment of Loans or Commitments or participations or other interests in any Loan or Commitment and shall not be a Disqualified Institution except if such Person acquires any Loans or Commitments or participations or other interests in any Loan or Commitment after such update, and (b) in the case of clause (a), any of the Affiliates of such identified entities that are either (i) identified to the Administrative Agent in writing by the Borrower from time to time (for distribution to the Lenders (including by posting such notice to the Platform)) or (ii) clearly identifiable on the basis of such Affiliate’s name.
“Disqualified Institutions List” has the meaning set forth in Section 11.06(g)(iv).
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
“EBITDA” means, with respect to the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates, determined in accordance with the Pro Rata Consolidation Method, for any period and without duplication, net earnings (loss) for such period excluding the following amounts (but only to the extent deducted in calculating net earnings (loss) for such period): (a) depreciation and amortization expense and asset write-downs and write-offs; (b) Interest Expense for such period; (c) income tax expense in respect of such period; (d) gains, losses, charges or expenses resulting from extraordinary or non-recurring transactions during such period, including, without limitation, non-recurring severance payments, gain/loss on sale of assets, early extinguishment or restructuring of Indebtedness (including prepayment premiums), REIT Conversion costs, write-offs and forgiveness of debt; (e) one-time costs and expenses related to the effectiveness of this Agreement and the other Loan Documents and the transactions related hereto and thereto; (f) proceeds of rent loss insurance and business interruption insurance; (g) acquisition closing costs that are capitalized per FASB ASC 805; and (h) other non-cash charges (including impairment charges or expenses) excluding non-cash charges that constitute an accrual of a reserve for future cash payments.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“Eligible Ground Lease” means a ground lease with respect to a Property executed by the Borrower or a Wholly Owned Subsidiary of the Borrower (or in the case of the Property identified as One MetroTech Center, a non-Wholly Owned Subsidiary that satisfies all requirements applicable to Direct Owners that are set forth in clause (iii) of the proviso to the definition of Eligible Property), as lessee, as to which no default or event of default has occurred or with the passage of time or the giving of notice would occur, and that contains terms and conditions customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease and in any event containing the following terms and conditions: (a) a remaining term (inclusive of any unexercised extension options) of twenty-five (25) years or more from the date the Property is included as an Unencumbered Pool Property or, in the case of a shorter term, the leasehold interest of the Borrower or applicable Subsidiary Guarantor therein reverts to a fee interest of the Borrower or such Subsidiary Guarantor without requirement that any Consolidated Party pay any consideration for such reversion other than consideration that is nominal or reasonably estimated by the Borrower or the Parent to be less than twenty percent (20%) of the Fair Market Value of such Property; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosure, and fails to do so; and (d) reasonable transferability of the lessee’s interest under such lease, including the ability to sublease. Notwithstanding the foregoing, in the case of a surface parking lot or structure ancillary to a Property subject to a ground lease, the requirements of this definition shall not be required to be satisfied
with respect to such surface parking lot or structure if the rights associated therewith are not material to the profitable operation of such Property.
“Eligible Property” means a Property that meets and continues to satisfy each of the following criteria:
(a) such Property is an office, retail or multifamily apartment Property that is occupied or available to be occupied;
(b) such Property is Wholly Owned by a Subsidiary of the Borrower (each Subsidiary that directly owns or ground leases an interest in such Property being referred to herein as a “Direct Owner”) that is a Wholly Owned Subsidiary of the Borrower;
(c) each Subsidiary of the Borrower that owns an Equity Interest in a Direct Owner of such Property ((whether directly or through ownership of Equity Interests in other Subsidiaries) (each an “Indirect Owner”)), is a Wholly Owned Subsidiary of the Borrower;
(d) (i) prior to the Investment Grade Release, each Subsidiary of the Borrower that is a Direct Owner of such Property or an Indirect Owner of any such Direct Owner is a Guarantor and (ii) following the Investment Grade Release, each Subsidiary of the Borrower that is a Direct Owner of such Property or an Indirect Owner of any such Direct Owner and is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Unsecured Indebtedness is a Guarantor;
(e) such Property is located in a state of the United States or in the District of Columbia;
(f) each Direct Owner of such Property and each Indirect Owner of any such Direct Owner is organized under the laws of a state within the United States;
(g) the Equity Interests of each Direct Owner of such Property and each Indirect Owner of any such Direct Owner, and the right to any income therefrom, are not subject to any Lien (other than Permitted Equity Encumbrances) or any Negative Pledge;
(h) such Property, and the right to any income therefrom, is not subject to any ground lease (other than an Eligible Ground Lease), Lien (other than Permitted Property Encumbrances) or any Negative Pledge;
(i) such Property is free of all structural defects or major architectural deficiencies, title defects, environmental conditions or other adverse matters that would materially impair the profitable operation of such Property;
(j) (i) prior to the REIT Conversion, neither any Direct Owner of such Property nor any Indirect Owner of any such Direct Owner is subject to any proceedings under any Debtor Relief Law and (ii) following the REIT Conversion, neither any Direct Owner of such Property nor any Indirect Owner of any such Direct Owner is subject to any proceedings
under any Debtor Relief Law (in the case of the Borrower, to the extent an Event of Default would result therefrom); and
(k) neither any Direct Owner of such Property nor any Indirect Owner of any such Direct Owner is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Indebtedness for borrowed money (other than (i) Indebtedness under the Facility, (ii) other Unsecured Indebtedness so long as such Person is also a Guarantor or the Borrower, (iii) Indebtedness owed to the Mortgage Subsidiary, so long as there is no default in respect of such Indebtedness, and (iv) in the case of an Indirect Owner, unsecured guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions);
provided that,
(i) in the case of the Property identified as One Pierrepont Plaza, so long as such Property otherwise qualifies as an Eligible Property, the MAF Obligation shall not cause such Property to fail to be an Eligible Property,
(ii) in the case of any Property other than the Property identified as One MetroTech Center, so long as such Property otherwise qualifies as an Eligible Property the failure of such Property to comply with clauses (b) or (c) of the definition of Eligible Property solely as the result of a Direct Owner or an Indirect Owner of any such Direct Owner not being a Wholly Owned Subsidiary shall not cause such Property to fail to be an Eligible Property if (x) with respect to each such non-Wholly Owned Subsidiary that is a Direct Owner or an Indirect Owner of any such Direct Owner, the Reporting Entity Controls each such non-Wholly Owned Subsidiary (including the right to exercise exclusive control over any disposition, refinancing and operating activity of such Property (including the making of Restricted Payments on a ratable basis to the owners thereof), without the consent of any other Person (other than the Borrower or any Subsidiary of the Borrower, as long as such Subsidiary does not need the consent of any minority equity holder thereof to consent to any such disposition, refinancing or operating activity (including the making of Restricted Payments on a ratable basis to the owners thereof)) and (y) the Loan Party Pro Rata Share of such Property is at least ninety-five percent (95%), and
(iii) in the case of the Property identified as One MetroTech Center, so long as such Property otherwise qualifies as an Eligible Property the failure to comply with clauses (b) or (c) of the definition of Eligible Property solely as the result of any Direct Owner or an Indirect Owner of any such Direct Owner not being a Wholly Owned Subsidiary shall not cause such Property to fail to be an Eligible Property if (x) with respect to each such non-Wholly Owned Subsidiary that is a Direct Owner or an Indirect Owner of any such Direct Owner, the Reporting Entity Controls each such non-Wholly Owned Subsidiary (including the right to exercise exclusive control over any disposition, refinancing and operating activity of such Property (including the making of Restricted Payments on a ratable basis to the owners thereof), without the consent of any other Person (other than the Borrower or any Subsidiary of the Borrower, as long as such Subsidiary does not need the consent of any minority equity holder thereof to consent to any such disposition, refinancing or operating activity (including the making of Restricted Payments on a ratable basis to the owners
thereof)) and (y) the Loan Party Pro Rata Share of such Property is at least seventy-eight and three-eighths percent (78.375%).
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetland, flora and fauna.
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, settlement agreements or governmental restrictions relating to pollution or the protection of the Environment or human health (to the extent related to exposure to Hazardous Materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.
“Environmental Liability” means any liability (including any liability for damages, costs of environmental remediation, fines or penalties), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) obligations incurred under any contract, agreement or other consensual arrangement pursuant to which liability is incurred or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Loan Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of a Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate; or (i) a failure by a Loan Party or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by a Loan Party or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.
“Eurodollar Illegality Event” has the meaning specified in Section 3.02.
“Eurodollar Rate” means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page the daily fixings appearing on BBAL for US Dollar (or on any successor or substitute page) on such screen (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that day; and
(c) if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
“Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Derivatives Obligation” means, with respect to any Guarantor, any Derivatives Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of such Derivatives Obligation (or any Guarantee thereof) is or becomes illegal or not permitted under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Derivatives Obligations by other Obligors) at the time the Guarantee of such Guarantor becomes effective with respect to such Derivatives Obligation. If a Derivatives Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Derivatives Obligation that is attributable to swaps for which such Guarantee is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), profits or gains, franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Existing Credit Facility” means the credit facilities provided pursuant to that certain Fourth Amended and Restated Credit Agreement, dated as of February 21, 2013, by and among Forest City Rental Properties Corporation, an Ohio corporation, as borrower, the banking institutions from time to time party thereto, KeyBank National Association, Cleveland, Ohio, as Administrative Agent, PNC Bank, National Association, as Syndication Agent, and Bank of America, N.A., as Documentation Agent, as in effect on the Closing Date.
“Existing Letters of Credit” means the letters of credit issued pursuant to the terms of the Existing Credit Facility that are outstanding on the Closing Date and described on Schedule 1.01.
“Extension Notice” has the meaning specified in Section 2.14(a).
“Facility” means, at any time, the aggregate amount of the Lenders’ Commitments at such time. On the Closing Date, the Facility is $500,000,000.
“Facility Fee” has the meaning specified in Section 2.09(a).
“Fair Market Value” means, (a) with respect to a security listed on a national securities exchange or the NASDAQ National Market, the price of such security as reported on such exchange or market by any widely recognized reporting method customarily relied upon by financial institutions and (b) with respect to any other property, the price determined in good faith by the Board of Directors or senior management of the Parent which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“Federally Assisted Housing Property” means, residential housing receiving various forms of subsidies from the Department of Housing and Urban Development.
“Fee Letter” means the letter agreement, dated October 14, 2015, among the Borrower, the Arrangers, Bank of America and PNC.
“Foreign Lender” means a Lender that is not a U.S. Person.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuers, such Defaulting Lender’s Applicable Percentage of the Outstanding Amount of all outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lenders, such Defaulting Lender’s Applicable Percentage of the Outstanding Amount of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funds From Operations” means, with respect to a Person and for a given period determined in accordance with the Pro Rata Consolidation Method, Funds from Operations (as defined from time to time by NAREIT) of such Person for such period.
“GAAP” means, subject to Section 1.03(b), generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means, with respect to a Person, the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank, in each case, with competent jurisdiction over such Person).
“Gross Revenues” means, with respect to any Property, all revenues of any kind derived from owning or operating such real estate property determined in accordance with the Pro Rata Consolidation Method.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith;
provided that the amount of any Specified Guarantee shall be the actual (as opposed to contingent) liability thereunder. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning specified in Section 10.01.
“Guarantors” means (a) the Subsidiary Guarantors, (b) each other Person, including the Parent, that joins as a Guarantor pursuant to Section 6.12 or otherwise, and (c) with respect to the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Derivatives Obligations under Lender Derivatives Contracts and all obligations under Lender Cash Management Agreements, the Borrower.
“Guaranty” means the Guaranty made by the Guarantors under Article X in favor of the Creditor Parties.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.
“Hedge Bank” means any Person in its capacity as a party to a Derivatives Contract that, at the time it enters into a Derivatives Contract not prohibited under Article VI or VII, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Derivatives Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceases to be a Lender); provided, in the case of a Lender Derivatives Contract with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Lender Derivatives Contract; provided, further, that for any of the foregoing to be included as a “Lender Derivatives Contract” on any date of determination by the Administrative Agent, the applicable Hedge Bank must have delivered to the Administrative Agent prior to such date of determination a Designation Notice that has been acknowledged in writing by the Borrower.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.
“Impacted Loans” has the meaning specified in Section 3.03.
“Increase Effective Date” has the meaning specified in Section 2.15(b).
“Indebtedness” means, as to any Person at a particular time, all of the following (without duplication), whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guarantees, surety bonds and similar instruments;
(c) net obligations of such Person under any Derivatives Contract not entered into as a hedge against existing interest rate risk in respect of Indebtedness;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (x) trade accounts payable in the ordinary course of business and, in each case, either (i) not past due for more than ninety (90) days or (ii) being contested in good faith by appropriate proceedings diligently conducted, or (y) accruals or bank drafts arising in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned by such Person (including indebtedness arising under conditional sales or other title retention agreements or similar agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) the amount of Capitalized Lease Obligations and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;
(h) all Off-Balance Sheet Arrangements of such Person; and
(i) all Guarantees of such Person in respect of any of the foregoing, excluding Guarantees of Nonrecourse Indebtedness for which recourse is limited to liability for Customary Recourse Exceptions and contingent obligations under Tax Indemnity Agreements.
For all purposes hereof, (1) the amount of Indebtedness of any Person is the amount of such obligation as would be required to be reflected on a consolidated balance sheet of such Person prepared in accordance with the Pro Rata Consolidation Method and (2) the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person; provided that notwithstanding any of the foregoing, Indebtedness shall not include (t) current expenses and intercompany liabilities, (u) prepaid or deferred revenues arising in the ordinary course of business, including prepaid rent, (v) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller
of such asset, (w) earn-out obligations until such obligations become a liability on the balance sheet of such person in accordance with GAAP, (x) security deposits, (y) artificial financing obligations treated as liability under GAAP related to sales of real estate accounted for under FASB ASC 360-20 under financing or deposit method and (z) artificial financing obligations treated as liability under GAAP related to sale leaseback transactions that do not meet the requirements to account for the sale leaseback under FASB ASC 840-40. The amount of any net obligation under any Derivatives Contract on any date shall be deemed to be the Derivatives Termination Value thereof as of such date. The amount of any Capitalized Lease Obligation or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding anything in this definition to the contrary, for purposes of determining compliance with any covenant (including the computation of any financial covenant), Indebtedness shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Obligor under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning specified in Section 11.04(b).
“Indirect Owner” has the meaning specified in the definition of “Eligible Property.”
“Information” has the meaning specified in Section 11.07.
“Initial Maturity Date” means November 17, 2019.
“Interest Expense” means, for any period, all interest expense of the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates (whether paid or accrued) determined in accordance with the Pro Rata Consolidation Method, including all letter of credit fees and all interest expense with respect to any Indebtedness in respect of which any Consolidated Party or Unconsolidated Affiliate is wholly or partially liable whether pursuant to any repayment, interest carry, performance guarantee or otherwise (excluding (i) non-cash charges including, but not limited to, the amortization of debt issue costs, premiums, discounts, intangible assets, or intangible liabilities, or any non-cash charges or write-offs related to the restructuring, modification or extinguishment of debt in accordance with FASB ASC 470-50 or FASB ASC 470-60 and (ii) one-time cash payments including, but not limited to, debt issue costs, pre-payment penalties, defeasance, letter of credit issuance costs, yield maintenance, legal costs).
“Interest Payment Date” means, as to any Loan, the first Business Day of each month and the Maturity Date.
“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one (1), three (3) or six (6) months thereafter (in each case, subject to availability), as selected by the Borrower in its Committed Loan Notice, or such other period that is less than six (6) months and requested by the Borrower and consented to by all of the Lenders; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
Notwithstanding the foregoing, any Interest Period pertaining to a Eurodollar Rate Loan that begins on a day that is not the first Business Day of a calendar month shall end on the first Business Day of (i) the next succeeding calendar month when a one (1) month Interest Period is elected, (ii) the third succeeding calendar month when a three (3) month Interest Period is elected and (iii) the sixth succeeding calendar month when a six (6) month Interest Period is elected.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or other securities of another Person, (b) a loan, advance, other extension of credit or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or all or a substantial part of the business of, such Person or (d) the purchase, acquisition or other investment in any real property or real property-related assets (including, without limitation, mortgage loans and other real estate-related debt investments, investments in land holdings, and costs to construct real property assets under development). For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Investment Grade Credit Rating” means a Debt Rating of BBB- (without regard to watch status) or better from S&P or Baa3 (without regard to watch status) or better from Moody’s.
“Investment Grade Pricing Effective Date” means the first Business Day following the date on which (a) the Borrower has obtained an Investment Grade Credit Rating and (b) the Borrower has delivered to the Administrative Agent an Officer’s Certificate (i) certifying that an Investment Grade Credit Rating has been obtained and is in effect (which certification shall also set forth the Debt Rating(s) received, if any, from each of S&P and Moody’s as of such date) and (ii) notifying the Administrative Agent that the Borrower has irrevocably elected to have the Ratings-Based Applicable Rate apply to the pricing of the Facility.
“Investment Grade Release” has the meaning specified in Section 11.19(a).
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an L/C Issuer and the Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
“Land Inventory” means land comprising a Property on which no development (other than improvements that are not material and are temporary in nature) has occurred.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case, whether or not having the force of law.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Draw Notice” has the meaning specified in Section 2.03(c)(i).
“L/C Issuer” means any of Bank of America, PNC and such other Lenders as may be designated in writing by the Borrower and consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) that agree in writing to act as an issuer of Letters of Credit in accordance with the terms hereof pursuant to a writing in form and substance reasonably satisfactory to the Administrative Agent, in each case in such Person’s capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder; provided that for so long as any Existing Letter of Credit remains outstanding hereunder, the issuer of such Existing Letter of Credit shall continue to be the L/C Issuer with respect to such Existing Letter of Credit.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including (without duplication) all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“L/C Reimbursement Date” has the meaning specified in Section 2.03(c)(i).
“Lender” has the meaning specified in the introductory paragraph hereto and, unless the context requires otherwise, includes each Swing Line Lender.
“Lender Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Obligor and any Cash Management Bank.
“Lender Derivatives Contract” means any interest rate Derivatives Contract not prohibited by Article VI or VII that is entered into by and between any Obligor and any Hedge Bank.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify in writing the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letters of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.
“Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.03(h).
“Letter of Credit Sublimit” means an amount equal to $150,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Facility.
“Leverage-Based Applicable Rate” has the meaning specified in the definition of “Applicable Rate.”
“LIBOR” has the meaning specified in the definition of “Eurodollar Rate.”
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing). For the avoidance of doubt, a precautionary filing in respect of an operating lease shall not constitute a Lien.
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.16 of this Agreement and the Fee Letter.
“Loan Parties” means, collectively, the Parent, the Borrower, each Direct Owner of an Unencumbered Pool Property and each Indirect Owner of such Direct Owner, and each Wholly Owned Subsidiary.
“Loan Party Pro Rata Share” means, with respect to any Property at any time, the percentage interest held at such time by the Borrower and its Wholly Owned Subsidiaries, in the aggregate, in the Direct Owners of such Property determined by calculating the percentage of the Equity Interests of such Direct Owners owned directly or indirectly by the Borrower and/or one or more of its Wholly Owned Subsidiaries.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“MAF Obligation” means, with respect to the Property identified as One Pierrepont Plaza, the obligation to repay the Municipal Assistance Corporation of New York City up to $4,000,000 that was advanced as a grant and is only required to be paid from the net proceeds of the sale or refinancing of One Pierrepont Plaza.
“Major Tenant” means a tenant of a Consolidated Party or Unconsolidated Affiliate under a lease of Property which entitles it to occupy 15,000 square feet or more of the net rentable area of such Property.
“Management Fees” means, with respect to any Property for a given period, determined in accordance with the Pro Rata Consolidation Method, an amount equal to the greater of (a) actual management, advisory or similar fees payable with respect thereto and (b) three percent (3.0%) per annum of the Gross Revenues, adjusted to eliminate the straight lining of rents and the impact of non-cash adjustments of above and below market lease amortization, and lease incentive amortization, derived from the operation of such Property.
“Market Disruption Event” has the meaning specified in Section 3.03.
“Marketable Securities” means: (a) common or Preferred Equity Interests of Persons located in, and formed under the laws of, any state of the United States or the District of Columbia, which Equity Interests are subject to price quotations (quoted at least daily) on The NASDAQ Stock Market’s National Market System or shall have trading privileges on the New York Stock Exchange, the American Stock Exchange or another recognized national United States securities exchange and (b) securities evidencing Indebtedness issued by Persons located in, and formed under the laws of,
any state of the United States or the District of Columbia, which Persons have an Investment Grade Rating.
“Material Acquisition” means any acquisition by a Consolidated Party in which the assets acquired exceed 5.0% of the Total Asset Value determined in accordance with the Pro Rata Consolidation Method as of the last day of the then most recently ended fiscal quarter of the Reporting Entity for which financial statements are publicly available.
“Material Adverse Effect” means (a) a material adverse effect on the operations, business, assets, liabilities (actual or contingent), or financial condition of the Borrower and its Subsidiaries (taken as a whole); (b) a material adverse effect on the rights and remedies of the Administrative Agent or any Lender under any Loan Document (other than as a result of circumstances specific to the Administrative Agent or such Lender), or of the ability of the Obligors (taken as a whole) to perform their obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Obligor of any Loan Document to which it is a party.
“Material Subsidiary” means any Person that (a) is a Subsidiary and (b) either (i) has assets with a Fair Market Value equal to or greater than 7.5% of Total Asset Value or (ii) had gross revenues for the most recently completed period of four fiscal quarters for which financial statements of the Parent are publicly available equal to or greater than 7.5% of the gross revenues of the Consolidated Group. A group of Subsidiaries (a “Material Group”) each of which is not otherwise a Material Subsidiary (as defined in the foregoing sentence) shall constitute a Material Subsidiary if the group taken as a single entity would constitute a Material Subsidiary. Unless otherwise specified, all references herein to a “Material Subsidiary” shall refer to a Material Subsidiary of (i) the Borrower at all times prior to consummation of the REIT Conversion and (ii) the Parent at all times upon and following consummation of the REIT Conversion (other than the Borrower).
“Maturity Date” means the later of (a) the Initial Maturity Date and (b) if the Initial Maturity Date is extended pursuant to Section 2.14, such extended maturity date as determined pursuant to Section 2.14; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Maximum Rate” has the meaning specified in Section 11.09.
“Merger Agreement” means the agreement and plan of merger by and among Forest City Enterprises, Inc., Forest City Realty Trust, Inc., its newly formed Wholly Owned Subsidiary, FCILP, LLC, a Delaware limited liability company, and FCE Merger Sub, Inc., a Delaware corporation.
“Military Housing Property” means military family housing and military unaccompanied housing on or near military installations of the United States which are ground leased from the United States under the U.S. Navy’s and U.S. Air Force’s Public-Private Venture.
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 102% of the Fronting Exposure of
the applicable L/C Issuer with respect to Letters of Credit issued by it that are outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.16(a)(i), (a)(ii) or (a)(iii), an amount equal to 102% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the applicable L/C Issuer(s) in their sole discretion.
“Minimum Unencumbered Property Condition” means, as of any date of determination that, (a) the Unencumbered Pool Value is at least equal to the Facility on such date and (b) there are at least five (5) Unencumbered Pool Properties.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument made by a Person owning an interest in a Property granting a Lien on such interest as security for the payment of Indebtedness.
“Mortgage Receivable” means a promissory note secured by a Mortgage of which a Consolidated Party or an Unconsolidated Affiliate is the holder and retains the rights of collection of all payments thereunder.
“Mortgage Subsidiary” means Whiteacres Loan Acquisition LLC, so long as (a) such Person is (i) a Wholly Owned Subsidiary, (ii) a Guarantor, (iii) organized under the laws of a state within the United States and (iv) not subject to any proceedings under any Debtor Relief Law, (b) such Person does not (i) directly or indirectly, conduct or engage in any business or make any Investments other than in connection with the making of loans and advances to Wholly Owned Subsidiaries of the Parent that are secured by one or more Properties of such Wholly Owned Subsidiaries, (ii) own any material assets other than loan receivables and related mortgages described in clause (b)(i) or (iii) have any material liabilities, and (c) neither the Equity Interests of such Person nor any of its assets are subject to any Lien (other than Permitted Equity Encumbrances) or any Negative Pledge.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“NAREIT” means the National Association of Real Estate Investment Trusts (and any successor thereto).
“Negative Pledge” means, with respect to a given asset, any provision of a document, instrument or agreement (other than this Agreement or any Loan Document) that prohibits or purports to prohibit the creation or assumption of any lien on such asset; provided, however, that (i) an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not
generally prohibit the encumbrance of its assets, or the encumbrance of specific assets and (ii) Permitted Pari Passu Provisions, in each case, shall not constitute a “Negative Pledge.”
“Net Operating Income” means, for any Property for a given period (without duplication), determined in accordance with the Pro Rata Consolidation Method, (a) rents and other revenues derived from the operation of such Property (including proceeds of rent loss insurance and business interruption insurance), but excluding prepaid rents and revenues and security deposits, except to the extent applied in satisfaction of tenants’ obligations for rent, minus (b) the sum of all expenses incurred in connection with and directly attributable to the ownership and operation of such Property for such period, including, without limitation, property taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and administrative expenses with respect to such Property (but excluding acquisition costs, general overhead expenses of the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates, any interest expense or other debt service charges and any non-cash charges such as depreciation or amortization of financing costs), minus (c) the applicable Capital Reserves minus (d) any rental income from any leases to Major Tenants in any bankruptcy proceedings, to the extent the relevant leases have been rejected pursuant to such bankruptcy proceedings during the subject period, minus (e) for purposes of determining (i) Total Asset Value, actual management, advisory or similar fees payable with respect thereto and (ii) Unencumbered Pool Value, Management Fees.
“New Lender Joinder Agreement” has the meaning specified in Section 2.15(a).
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Nonrecourse Indebtedness” means, with respect to any Person, Indebtedness of such Person in respect of which recourse for payment is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.
“Non-Stabilized Properties” means, for any Property, (a) the Occupancy Rate for such Property is below 80% and (b) such Property is designated in writing by the Borrower or the Parent as a Non-Stabilized Property and has not previously been designated as such. Once designated as a Non-Stabilized Property, such Property shall cease to be a Non-Stabilized Property upon the earlier of (i) the request of the Borrower or the Parent or (ii) the second anniversary of the designation by the Borrower or the Parent of such Property as a Non-Stabilized Property.
“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C.
“Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Obligor arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, (b) all Additional Obligations with respect to any Obligor and (c) all costs and
expenses incurred in connection with enforcement and collection of the foregoing, including the documented and out of pocket fees, charges and disbursements of outside counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Obligor or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that Obligations of an Obligor shall exclude any Excluded Derivatives Obligations with respect to such Obligor.
“Obligors” means the Borrower and each Guarantor.
“Occupancy Rate” means, with respect to any Property at any time, the ratio (expressed as a percentage) of (a) (i) in the case of an apartment Property, the number of units leased to Qualified Tenants that are not Affiliates of the Reporting Entity pursuant to binding written leases and (ii) in the case of any other Property, the total amount of rentable space in such Property leased to Qualified Tenants that are not affiliated with the Reporting Entity pursuant to binding written leases, to (b) the aggregate number of units or rentable space, as applicable, of such Property.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Off-Balance Sheet Arrangement” means any transaction, agreement or other contractual arrangement to which an entity unconsolidated with the Reporting Entity is a party, under which a Consolidated Party has:
(a) any obligation under a guarantee contract that has any of the characteristics identified in FASB ASC 460-10-15-4;
(b) a retained or contingent interest in assets transferred to an unconsolidated entity or similar arrangement that serves as credit, liquidity or market risk support to such entity for such assets;
(c) any obligation, including a contingent obligation, under a contract that would be accounted for as a derivative instrument, except that it is both indexed to the Reporting Party’s own stock and classified in stockholders’ equity in the Reporting Party’s statement of financial position, as described in FASB ASC 815-10-15-74; or
(d) any obligation, including a contingent obligation, arising out of a variable interest (as defined in the FASB ASC Master Glossary) in an unconsolidated entity that is held by, and material to, the Consolidated Group, where such entity provides financing, liquidity, market risk or credit risk support to, or engages in leasing, hedging or research and development services with, one or more Consolidated Parties.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
“Outstanding Amount” means (a) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
“Parent” means, upon and following consummation of the REIT Conversion, Forest City Realty Trust, Inc., a Maryland real estate investment trust.
“Pari Passu Obligations” means Unsecured Indebtedness (exclusive of the Indebtedness under the Facility) of any Consolidated Party (other than the Borrower or the Parent) owing to a Person that is not a Consolidated Party or a Person Controlled by the Reporting Entity.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of
the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Permitted Equity Encumbrances” means:
(a) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(b) Liens for taxes not yet due or Liens for taxes which are being contested in good faith and by appropriate proceedings diligently conducted, and for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; and
(c) Permitted Pari Passu Provisions.
“Permitted Holder” means (i) any of Samuel H. Miller, Albert B. Ratner, Charles A. Ratner, James A. Ratner, Ronald A. Ratner or any spouse (or former spouse) or lineal descendant 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 or winding up of RMS Limited Partnership receives a distribution of Equity Interests in the Parent or (iii) any group (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) that contains any of the Persons that are specified in clauses (i) and (ii).
“Permitted Pari Passu Provisions” means provisions that are contained in documentation evidencing or governing Pari Passu Obligations which provisions are the result of (a) limitations on the ability of any Consolidated Party to make Restricted Payments or transfer property to the Borrower or any Guarantor which limitations are not, taken as a whole, materially more restrictive than those contained in this Agreement or any other Loan Document, (b) limitations on the creation of any Lien on any assets of a Person that are not, taken as a whole, materially more restrictive than those contained in this Agreement or any other Loan Document or (c) any requirement that Pari Passu Obligations be secured on an “equal and ratable basis” to the extent that the Obligations are secured.
“Permitted Property Encumbrances” means:
(a) Liens pursuant to any Loan Document;
(b) easements, zoning restrictions, rights of way and similar encumbrances on real property imposed by law or arising in the ordinary course of business or other title and survey exceptions disclosed in the applicable title insurance policies, in any such case that do not secure any monetary obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
(c) mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not yet overdue for a period of more than thirty (30) days or are being contested in good faith and by appropriate proceedings diligently conducted (which proceedings have the effect of preventing the forfeiture or sale of the property of assets subject to any such Lien), if adequate reserves with respect thereto are maintained on the books of the applicable Person;
(d) any interest of a lessee of a Property under leases entered into in the ordinary course of business;
(e) rights of lessors under Eligible Ground Leases;
(f) Liens for taxes not yet due or Liens for taxes which are being contested in good faith and by appropriate proceedings diligently conducted, and for which adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(g) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(h) Liens securing assessments or charges payable to a property owner association or similar entity, which assessments are not yet due and payable or that are being contested in good faith by appropriate proceedings diligently conducted, and for which reserves in accordance with GAAP or otherwise reasonably acceptable to the Administrative Agent have been provided; and
(i) Permitted Pari Passu Provisions.
“Person” means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, limited liability partnership, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of a Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” has the meaning specified in Section 6.02.
“PNC” has the meaning specified in the introductory paragraph hereto.
“Preferred Dividends” means, for any period and without duplication, all Restricted Payments paid during such period on Preferred Equity Interests issued by a Consolidated Party.
Preferred Dividends shall not include dividends or distributions (a) paid or payable solely in Equity Interests (other than mandatorily redeemable stock) payable to holders of such class of Equity Interests, (b) paid or payable to any Consolidated Party or (c) constituting balloon, bullet or similar redemptions in full of Preferred Equity Interests.
“Preferred Equity Interest” means, with respect to any Person, Equity Interests in such Person which are entitled to preference or priority over any other Equity Interest in such Person in respect of the payment of dividends or distribution of assets upon liquidation or both.
“Pro Forma Basis” means, for purposes of calculating compliance with Section 7.09 or determining the Leverage-Based Applicable Rate (as defined in the definition of Applicable Rate) in respect of a proposed Pro Forma Transaction, such transaction shall be deemed to have occurred as of the first day of the four (4) fiscal-quarter period ending as of the most recent fiscal quarter end preceding the date of such transaction with respect to which the Administrative Agent has received the Required Financial Information (such period, the “Measuring Period”). As used herein, “Pro Forma Transaction” means (a) any incurrence or assumption of Indebtedness, (b) any removal of a Property from the list of Unencumbered Pool Properties (including a release of any Subsidiary Guarantor that is a Direct or Indirect Owner of an Unencumbered Pool Property from its obligations under the Guaranty) or any direct or indirect Disposition of any Person or Property (including through a merger, dissolution, liquidation or consolidation thereof), or (c) the making of any Investment or any other acquisition of any Person (including by merger) or property (including any property for which a ground lease was entered into). In connection with any calculation relating to Section 7.09 upon giving effect to a Pro Forma Transaction on a Pro Forma Basis for the applicable Measuring Period, in each case to the extent applicable and in a manner reasonably satisfactory to the Administrative Agent:
(i) any Indebtedness (x) that is to be incurred in connection with such Pro Forma Transaction, and the aggregate amount of all other Indebtedness incurred since the last day of such Measuring Period, shall be included and deemed to have been incurred as of the first day of the applicable period, and (y) that is to be retired or repaid in connection with such Pro Forma Transaction, and the aggregate amount of all other Indebtedness retired or repaid since the last day of such Measuring Period, shall be excluded and deemed to have been retired as of the first day of such Measuring Period;
(ii) income statement items (whether positive or negative) attributable to (x) any Person or Property being directly or indirectly Disposed of or removed in connection with such Pro Forma Transaction, and all other Persons and Properties directly or indirectly Disposed of or removed since the last day of such Measuring Period, shall be excluded and (y) any Person or Property being acquired in connection with such Pro Forma Transaction, and all other Persons and Properties acquired since the last day of such Measuring Period, shall be included as of the first day of such Measuring Period;
(iii) Total Asset Value shall (x) exclude the portion of Total Asset Value attributable to any Person or Property being directly or indirectly Disposed of or removed in connection with such Pro Forma Transaction and all other Persons and Properties directly or indirectly Disposed of or removed since the last day of such Measuring Period, and (y)
include, as of the first day of such Measuring Period, the acquisition price of any Person or Property being acquired in connection with such Pro Forma Transaction and the acquisition price paid for all other Persons and Properties acquired since the last day of such Measuring Period;
(iv) Unencumbered NOI shall (x) exclude the portion of Unencumbered NOI attributable to any Unencumbered Pool Property being directly or indirectly Disposed of or removed in connection with such Pro Forma Transaction and all other Unencumbered Pool Properties directly or indirectly Disposed of or removed since the last day of such Measuring Period, and (y) include, as of the first day of such Measuring Period, the acquisition price of any Property being acquired in connection with such Pro Forma Transaction (to the extent such property will be an Unencumbered Pool Property upon the acquisition thereof) and the acquisition price paid for all other Unencumbered Pool Properties acquired since the last day of such Measuring Period; and
(v) to the extent any other pro forma adjustments are to be included in connection with any such calculation, such adjustments are (A) directly attributable to such Pro Forma Transaction and (B) factually supportable.
“Pro Forma Closing Date Compliance Certificate” has the meaning specified in Section 4.01(a)(ix).
“Pro Rata Consolidation Method” shall mean the pro rata method of consolidation as fully reconciled to GAAP and as reported by the Reporting Entity to the Securities and Exchange Commission. For the avoidance of doubt, any reference herein to “the Borrower, its Subsidiaries and its Unconsolidated Affiliates,” “the Parent, its Subsidiaries and its Unconsolidated Affiliates,” “the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates” or any similar reference used herein in connection with a determination of assets, liabilities, earnings, income, charges or expenses shall refer to a determination made in accordance with the Pro Rata Consolidation Method and shall include the Reporting Entity’s pro rata share of the assets, liabilities, earnings, income, charges and expenses of such Person’s Subsidiaries and Unconsolidated Affiliates as fully reconciled to GAAP and as reported by the Reporting Entity, to the Securities and Exchange Commission.
“Property” means, as to any Person, any parcel of real property (whether owned in fee or subject to a lease), together with any building, facility, structure, equipment or other improvement or asset located on such parcel of real property, in each case owned or leased by such Person. Unless otherwise specified, all references herein to a “Property” or to “Properties” shall refer to a Property or Properties owned or ground leased, as applicable, by a Consolidated Party or an Unconsolidated Affiliate.
“Proposed Subsidiary Guarantor” has the meaning specified in Section 6.12.
“Public Lender” has the meaning specified in Section 6.02.
“Qualified ECP Guarantor” means, at any time, each Obligor with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity
Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Tenants” means a tenant that is party to a lease of all or a portion of a Property and is not in default under such lease for a period of ninety (90) days or more and not subject to any proceeding under any Debtor Relief Law.
“Ratings-Based Applicable Rate” has the meaning specified in the definition of “Applicable Rate.”
“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Obligor hereunder.
“Recourse Indebtedness” means Indebtedness that is not Nonrecourse Indebtedness; provided that personal recourse for Customary Recourse Exceptions or under Specified Guarantees shall not, alone, cause such Indebtedness to be characterized as Recourse Indebtedness.
“Register” has the meaning specified in Section 11.06(c).
“Registration Statement” means the Registration Statement on Form S-4 of Forest City Enterprises, Inc. initially filed with the Securities and Exchange Commission on July 10, 2015, as amended on August 21, 2015, and as may be further amended from time to time; provided that any such amendment modifying the definition of REIT Conversion or relating to the terms of the Merger Agreement shall be reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned).
“REIT Conversion” has the meaning assigned to it in the Registration Statement.
“REIT Status” means, with respect to any Person, (a) the qualification of such Person as a real estate investment trust under the provisions of Sections 856 et seq. of the Code and (b) the applicability to such Person and its shareholders of the method of taxation provided for in Sections 857 et seq. of the Code.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, auditors (including internal auditors), attorneys and representatives of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility.
“Release Notice” has the meaning specified in Section 11.19(b).
“Relevant Payment” has the meaning specified in Section 10.10.
“Removal Effective Date” has the meaning specified in Section 9.06(b).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“Reporting Entity” means, (i) prior to consummation of the REIT Conversion, the Borrower and (ii) upon and following consummation of the REIT Conversion, the Parent.
“Repurchase Right” means, with respect to any Indebtedness, the right to require the prepayment, repurchase, redemption or defeasance of such Indebtedness (including any obligation to prepay, repurchase, redeem or defease such Indebtedness).
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Financial Information” means, with respect to each fiscal period or quarter of the Borrower (a) the financial statements required to be delivered to the Administrative Agent pursuant to Section 6.01(a) or Section 6.01(b) and (b) the Compliance Certificate and other calculations required to be delivered to the Administrative Agent pursuant to Section 6.02(a).
“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders or, if the commitment of each Lender to make loans and the obligation of the Issuing Banks to make L/C Credit Extensions have been terminated, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this computation). The Total Credit Exposure of, and Total Outstandings held by, any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or the applicable Issuing Bank, as the case may be, in making such determination.
“Resignation Effective Date” has the meaning specified in Section 9.06(a).
“Responsible Officer” means the chief executive officer, president, chief financial officer, or any vice president of an Obligor, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of an Obligor and, solely for purposes of notices given pursuant to Article II, any other officer of the applicable Obligor so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Obligor designated in or pursuant to an agreement between the applicable Obligor and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of an Obligor shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Obligor and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Obligor.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any Subsidiary thereof, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
“S&P” means Standard & Poor's Financial Services LLC, a division of McGraw Hill Financial, Inc. and any successor thereto.
“Sanction(s)” means any Laws imposed, administered or enforced by the United States Government (including without limitation, OFAC) that prohibit or restrict transactions with disqualified Persons, countries or territories.
“Sanctioned Person” means (a) a Person (i) listed in the annex to, or otherwise subject to the provisions of, any executive order imposing any sanctions, prohibitions or requirements, (ii) named on the list of “Specially Designated Nationals and Blocked Persons” or “Sectoral Sanctions Identifications” maintained by OFAC, (iii) in which any Person described in clause (a)(ii) has 50% or greater ownership interest or that is otherwise controlled by a Person described in clause (a)(ii), or (iv) that is otherwise the subject of any sanctions, prohibitions or requirements imposed by any executive order or by any sanctions program administered by OFAC or the United States Treasury or (b) an agency of the government of a Designated Jurisdiction, an organization controlled by a Designated Jurisdiction, or a Person resident in a Designated Jurisdiction.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Indebtedness” means, with respect to any Person, any Indebtedness that is secured in any manner by any Lien on any property.
“Secured Recourse Indebtedness” means, for any Person, Recourse Indebtedness that is Secured Indebtedness.
“Solvency Certificate” means a solvency certificate of the chief financial officer or the chief accounting officer of the Borrower, substantially in the form of Exhibit H.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Guarantee” means a Completion Guaranty or a Tax Indemnity Agreement, as applicable.
“Specified Loan Party” means any Obligor that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.11).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly or indirectly, through one or more intermediaries. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Reporting Entity.
“Subsidiary Guarantor” means (a) at all times prior to an Investment Grade Release, (i) each Wholly Owned Subsidiary that is or becomes liable with respect to Unsecured Indebtedness other than under the Facility (whether as borrower, guarantor or otherwise), but only for so long as such Wholly Owned Subsidiary is liable on such Unsecured Indebtedness and (ii) each Direct Owner of an Unencumbered Pool Property and each Indirect Owner of each such Direct Owner, and (b) upon and at all times following an Investment Grade Release, each Wholly Owned Subsidiary (if any) that is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Unsecured Indebtedness (other than Indebtedness under the Facility), but only for so long as such Subsidiary remains obligated in respect of such Unsecured Indebtedness, in each case under clauses (a) and (b), together with their successors and permitted assigns, in each case, to the extent such Subsidiary has not been released from its obligations hereunder in accordance with Section 11.19.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Lender” means each of Bank of America and PNC in its capacity as a provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Facility. The Swing Line Sublimit is part of, and not in addition to, the Facility.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as indebtedness of such Person (without regard to accounting treatment).
“Tax Indemnity Agreement” means an agreement whereby the Borrower or the Parent indemnifies, on an after-tax or “grossed up” basis, a Person that is (x) not an Affiliate of the Reporting Entity and (y) either an equity owner in a Consolidated Party or an equity owner in a lender to a Consolidated Party (each, a “Tax Credit Beneficiary”), against the failure of such Tax Credit Beneficiary to directly or indirectly receive, or the direct or indirect loss by such Tax Credit Beneficiary of, tax credits and/or tax losses that were directly or indirectly allocated to such Tax Credit Beneficiary.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Total Asset Value” means, on any date of determination, the sum (without duplication) of all of the following of the Reporting Entity and its Subsidiaries determined in accordance with the Pro Rata Consolidation Method: (a) Unrestricted Cash; plus (b) the quotient of (i) the Net Operating Income for each Property owned, or leased as lessee under a ground lease (other than a Property the value of which is included in the determination of Total Asset Value under any of the immediately following clauses of this definition), for the period of four full fiscal quarters ended on such date (or if such date of determination is not the last day of a fiscal quarter, the period of four full fiscal quarters then most recently ended) divided by (ii) the applicable Capitalization Rate; plus (c) the undepreciated book value of Properties acquired during the period of four full fiscal quarters ended on such date (or if such date of determination is not the last day of a fiscal quarter, the period of four full fiscal quarters then most recently ended), provided that the Reporting Entity may irrevocably elect that the value of an acquired Property not yet owned for a period of four full fiscal quarters as of such date of determination be determined in accordance with the preceding clause (b); plus (d) all Construction-in-Process for Development Properties (including, for the avoidance of doubt, the land related to such Development Property owned by the Borrower or a Subsidiary or an Unconsolidated Affiliate thereof); plus (e) the undepreciated book value of Non-Stabilized Properties; plus (f) the value of Land Inventory; plus (g) Marketable Securities, valued at the lower of cost or Fair Market Value (to the extent that the Fair Market Value of such Marketable Securities is reasonably capable of being verified or is otherwise acceptable to the Administrative Agent); plus (h) the aggregate book value of Mortgage Receivables; plus (i) the product of (x) the Net Operating Income for each Federally Assisted Housing Property for the fiscal quarter ended on such date (or if such date of determination is not the last day of a fiscal quarter, the fiscal quarter then most
recently ended), annualized on a basis reasonably acceptable to the Administrative Agent multiplied by (y) 4; plus (j) the product of (x) the Net Operating Income for each Military Housing Property, for the fiscal quarter ended on such date (or if such date of determination is not the last day of a fiscal quarter, the fiscal quarter then most recently ended), annualized on a basis reasonably acceptable to the Administrative Agent multiplied by (y) 7.
Properties disposed of during the fiscal quarter ended on any date of determination (or if such date is not the last day of a fiscal quarter, the fiscal quarter then most recently ended) shall not be included in the calculation of Total Asset Value. In addition, to the extent that (i) the amount of Total Asset Value attributable to (A) Construction-in-Process would exceed 15%, (B) Non-Stabilized Properties would exceed 15%, (C) Land Inventory would exceed 5%, (D) Mortgage Receivables would exceed 10%, and (E) Federally Assisted Housing Properties and Military Housing Properties would exceed 5%, such excess shall in each case be excluded from Total Asset Value and (ii) the aggregate amount of Total Asset Value attributable to Construction-in-Process, Non-Stabilized Properties, Land Inventory and Mortgage Receivables would exceed 30% of Total Asset Value, such excess shall be excluded from Total Asset Value.
“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.
“Total Fixed Charges” means, for any period, the sum of (a) Interest Expense for such period, (b) all regularly scheduled principal payments made with respect to Indebtedness of the Reporting Entity and its Subsidiaries during such period, other than any balloon, bullet or similar principal payment which repays any such Indebtedness in full and (c) all Preferred Dividends paid during such period. For the avoidance of doubt, Total Fixed Charges of any Person does not include common dividends declared and/or paid during such period and will be determined in accordance with the Pro Rata Consolidation Method.
“Total Indebtedness” means, as of any date of determination, the then aggregate outstanding amount of all Indebtedness of the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates determined in accordance with the Pro Rata Consolidation Method.
“Total Leverage Ratio” means the ratio (expressed as a percentage) of (a) Total Indebtedness minus Unrestricted Cash in excess of $40,000,000 to (b) Total Asset Value minus Unrestricted Cash in excess of $40,000,000.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Total Secured Indebtedness” means, as of any date of determination, Total Indebtedness that is Secured Indebtedness.
“Total Secured Recourse Indebtedness” means, as of any date of determination, Total Indebtedness that is Secured Recourse Indebtedness.
“Trade Date” has the meaning specified in Section 11.06(g)(i).
“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
“UCC” means the Uniform Commercial Code as in effect in the State of New York.
“Unconsolidated Affiliate” means any Person (x) in which any Consolidated Party, directly or indirectly, holds an Equity Interest, which investment is accounted for in the consolidated financial statements of the Reporting Entity on an equity basis of accounting and (y) whose financial results are not consolidated with the financial results of the Parent under GAAP.
“Unencumbered NOI” means, for any period, the Loan Party Pro Rata Share of the aggregate Net Operating Income for such period of all Unencumbered Pool Properties, determined in accordance with the Pro Rata Consolidation Method.
“Unencumbered Pool Properties” means, at any time, all Eligible Properties at such time designated by the Reporting Entity to be included as “Unencumbered Pool Properties.”
“Unencumbered Pool Value” means, on any date of determination, the sum (without duplication) of all of the following of the Reporting Entity, its Subsidiaries and its Unconsolidated Affiliates determined in accordance with the Pro Rata Consolidation Method: (a) the quotient of (i) Unencumbered NOI of all Unencumbered Pool Properties (excluding Unencumbered NOI from any Unencumbered Pool Property the value of which is included in the determination of Unencumbered Pool Value under any of the immediately following clauses of this definition) for the period of four full fiscal quarters ended on such date (or if such date of determination is not the last day of a fiscal quarter, the period of four full fiscal quarters then most recently ended) divided by (ii) the applicable Capitalization Rate; plus (b) the undepreciated book value of all Eligible Properties acquired during the period of four full fiscal quarters ended on such date (or if such date of determination is not the last day of a fiscal quarter, the period of four full fiscal quarters then most recently ended), provided that the Reporting Entity may irrevocably elect that the value of an acquired Eligible Property not yet owned for a period of four full fiscal quarters as of such date of determination be determined in accordance with the preceding clause (a) minus (c) if the Property known as One Pierrepont Plaza is included as an Eligible Property in such calculation, an amount equal to the MAF Obligations as of such date of determination. Eligible Properties disposed of during the fiscal quarter ended on any date of determination (or if such date is not the last day of a fiscal quarter, the fiscal quarter then most recently ended) shall not be included in the calculation of Unencumbered Pool Value.
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
“Unrestricted Cash” means, at any time all cash and cash equivalents that is not labeled as “restricted cash” (other than cash escrowed in respect of indebtedness) listed on the then most recent publicly available balance sheet of the Reporting Entity determined in accordance with the Pro Rata Consolidation Method. For the avoidance of doubt, “restricted cash” shall not include cash held in a bond fund.
“Unsecured Indebtedness” means, with respect to any Person, Indebtedness which is not Secured Indebtedness.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).
“Wholly Owned” means, with respect to the ownership by any Person of any Property, that one hundred percent (100%) of the title to such Property is held in fee simple directly or indirectly by, or one hundred percent (100%) of such Property is ground leased pursuant to an Eligible Ground Lease directly or indirectly by, such Person.
“Wholly Owned Subsidiary” means, with respect to any Person on any date, any corporation, partnership, limited liability company or other entity of which one hundred percent (100%) of the Equity Interests and one hundred percent (100%) of the ordinary voting power are, as of such date, owned and Controlled, directly or indirectly, by such Person. Unless otherwise specified, all references herein to a “Wholly Owned Subsidiary” or to “Wholly Owned Subsidiaries” shall refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of the Reporting Entity.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, amendments and restatements, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of any Consolidated Party shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Changes in GAAP. If at any time any change in GAAP (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (A) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (B) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested by the Administrative Agent hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.
(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Consolidated Group or to the determination of any amount for the Consolidated Group on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.
1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any comparable or successor rate thereto.
1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower from time to time, on any Business Day during the Availability Period for the Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to any Borrowing, (i) the Total Outstandings shall not exceed the Facility at such time and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment. Subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan Notice; provided that any telephone notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three (3) Business Days (or such shorter period as shall have been agreed to by the Administrative Agent and the Lenders) prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans; provided, however, that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one (1), three (3) or six (6) months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine
whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three (3) Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a minimum principal amount of $1,000,000. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall be in a minimum principal amount of $500,000. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Loans from one Type to the other, or a continuation of Committed Loans as Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date a Committed Loan Notice with respect to a Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to Committed Loans.
(f) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent, and such Lender.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit issued by it; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or any of its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Facility at such time, (x) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the Outstanding Amount of the L/C Obligations with respect to Letters of Credit issued by any L/C Issuer shall not exceed 50% in the aggregate of the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit if, subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve (12)
months after the date of issuance or last extension, unless the Administrative Agent and such L/C Issuer have approved such expiry date; provided that in no event will any Letter of Credit have an expiry date that is later than the first anniversary of the Maturity Date.
(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with competent jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B) the issuance of the Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated amount less than $250,000;
(D) the Letter of Credit is to be denominated in a currency other than Dollars; or
(E) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Defaulting Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuers with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuers.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the applicable L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the modifications to be effectuated by the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless an L/C Issuer has received written notice from any Lender, the Administrative Agent or any Obligor, at least one (1) Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 4.02 (and, if such Letter of Credit is issued in connection with the initial Credit Extension, Section 4.01) shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or applicable Subsidiary thereof or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by an L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the first anniversary of the Maturity Date; provided, however, that no L/C Issuer shall permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing such L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by an L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits an L/
C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each such case, directing such L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(vi) If the expiry date of any Letter of Credit would occur after the Maturity Date (giving effect to any pending Extension Notice that has been delivered pursuant to Section 2.14 and for which the conditions precedent to the extension requested therein are then satisfied), the Borrower hereby agrees that it will at least thirty (30) days prior to such Maturity Date (or, in the case of a Letter of Credit issued or extended on or after thirty (30) days prior to the Maturity Date, on the date of such issuance or extension, as applicable) Cash Collateralize such Letter of Credit in an amount equal to 102% of the L/C Obligations arising or expected to arise in connection with such Letter of Credit.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof (such notification provided by the L/C Issuer to the Borrower and the Administrative Agent being referred to herein as an “L/C Draw Notice”). If an L/C Draw Notice with respect to a Letter of Credit is received by the Borrower (x) on or prior to 11:00 a.m. on the date of any payment by the applicable L/C Issuer under such Letter of Credit (each such date a payment is made by an L/C Issuer under a Letter of Credit being referred to herein as an “Honor Date”), then, not later than 12:00 p.m. on the Honor Date, the Borrower shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing or (y) after 11:00 a.m. on the Honor Date, then, not later than 11:00 a.m. on the first Business Day following the Honor Date, the Borrower shall reimburse the applicable L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing (such date on which the Borrower, pursuant to clauses (x) and (y) of this sentence, are required to reimburse an L/C Issuer for a drawing under a Letter of Credit is referred to herein as the “L/C Reimbursement Date”); provided, however, that if the L/C Reimbursement Date for a drawing under a Letter of Credit is the Business Day following the Honor Date pursuant to clause (y) of this sentence, the Unreimbursed Amount shall accrue interest from and including the Honor Date until such time as the applicable L/C Issuer is reimbursed in full therefor (whether through payment
by the Borrower and/or through a Committed Loan or L/C Borrowing made in accordance with paragraph (ii) or (iii) of this Section 2.03(c)) at a rate equal to (A) for the period from and including the Honor Date to but excluding the first Business Day to occur thereafter, the rate of interest then applicable to a Committed Loan that is a Base Rate Committed Loan and (B) thereafter, at the Default Rate applicable to a Committed Loan that is a Base Rate Committed Loan. Interest accruing on the Unreimbursed Amount pursuant to the proviso to the immediately preceding sentence shall be payable by the Borrower upon demand to the Administrative Agent, solely for the account of the applicable L/C Issuer. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if promptly (and, in any event, on the same Business Day) confirmed in writing; provided that the lack of such a prompt confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice to it pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Committed Loan that is a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse an L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of an L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of an L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by an L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for
the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing and each Committed Loan made pursuant to Section 2.03(c) shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer, any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver by the applicable L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Borrower or its Subsidiaries or any waiver by the applicable L/C Issuer which does not in fact materially prejudice the Borrower or its Subsidiaries;
(v) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(vi) any payment made by the applicable L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC or the ISP;
(vii) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(viii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Obligor or any of their Subsidiaries.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of any L/C Issuer, any Lender, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence, bad faith or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of any L/C Issuer, any Lender, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct, bad faith or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, an L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. An L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
(g) Applicability of ISP; Limitation of Liability. Unless otherwise expressly agreed by an L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrower for, and no L/C Issuer’s rights and remedies against the Borrower shall be impaired by, any action or inaction of such L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the applicable L/C Issuer or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance, subject to adjustment as provided in Section 2.17, with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate for Eurodollar Rate Loans made under the Facility times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the expiry date of such Letter of Credit and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, (i) while any Event of Default arising under Section 8.01(a)(i), (f) or (g) exists, all Letter of Credit Fees shall accrue at the Default Rate, and (ii) upon the request of the Required Lenders while any Event of Default exists (other than as set forth in clause (i)), all Letter of Credit Fees shall accrue at the Default Rate.
(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued by such L/C Issuer, at the rate per annum specified in the Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the expiry date of such Letter of Credit and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, each Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion, make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding fifty percent (50%) of the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of such Lender acting as a Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided, however, that (i) after giving effect to any Swing Line Loan, (x) the Total Outstandings shall not exceed the Facility at such time and (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (ii) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, (iii) the Outstanding Amount of all Swing Line Loans shall not exceed the Swing Line Sublimit and (iv) no Swing Line Lender shall be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lenders a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to each of the Swing Line Lenders and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly (and in any event on the same Business Day) by delivery to each Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such Swing Line Loan Notice must be received by the Swing Line Lenders and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be in a minimum principal amount of $500,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lenders of any Swing Line Loan Notice, the Swing Line Lenders will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lenders will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless a Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing such Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, each Swing Line Lender shall, not later than 3:30 p.m. on the borrowing date specified in such Swing Line Loan Notice, make fifty percent (50%) of the amount of such Swing Line Loan available to the Borrower either by (i) crediting the account of the Borrower on the books of such Swing Line Lender in immediately available funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to such Swing Line Lender by the Borrower.
(c) Refinancing of Swing Line Loans.
(i) Any Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes each Swing Line Lender to so request on its behalf), that each Lender make a Committed Loan that is a Base Rate Committed Loan in an amount equal to such Lender’s Applicable Percentage of such Swing Line Lender’s ratable portion of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Facility and the conditions set forth in Section 4.02. Such Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice (or on the immediately following Business Day if such notice is received by the Lenders after 11:00 a.m. on the specified funding date), whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable Swing Line Lender.
(ii) If for any reason any Swing Line Lender’s ratable portion of any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Committed Loans submitted by the applicable Swing Line Lender as set forth herein shall be deemed to be a request by such Swing Line Lender that each of
the Lenders fund its risk participation in the relevant Swing Line Lender’s ratable portion of such Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the applicable Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the applicable Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), such Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Lender’s ratable portion of such Swing Line Loan, as the case may be. A certificate of any Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan or made a Committed Loan pursuant to Section 2.04(c), if the applicable Swing Line Lender receives any payment on account of such Swing Line Lender’s ratable portion of such Swing Line Loan, such Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by such Swing Line Lender.
(ii) If any payment received by a Swing Line Lender in respect of principal or interest on such Swing Line Lender’s ratable portion of any Swing Line Loan made by such Swing Line Lender is required to be returned by such Swing Line Lender under any of the
circumstances described in Section 11.05 (including pursuant to any settlement entered into by such Swing Line Lender in its discretion), each Lender shall pay to such Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of such Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. Each Swing Line Lender shall be responsible for invoicing the Borrower (with a copy to the Administrative Agent) for interest on the ratable portion of Swing Line Loans made by such Swing Line Lender. Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lenders.
(f) Payments to Swing Line Lenders. The Borrower shall make all payments of principal and interest in respect of each Swing Line Loan through the Administrative Agent for the account of the relevant Swing Line Lender.
2.05 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be substantially in the form of Exhibit J and be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans, in each case, or such later time as is reasonably acceptable to the Administrative Agent; (ii) any prepayment of Eurodollar Rate Loans shall be in a minimum principal amount of $1,000,000; and (iii) any prepayment of Base Rate Committed Loans shall be in a minimum principal amount of $500,000 or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.17, each such prepayment shall be promptly paid to the Lenders in accordance with their respective Applicable Percentages.
(b) The Borrower may, upon notice to the Swing Line Lenders (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lenders and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $500,000.
Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Each prepayment made pursuant to this clause (b) shall be made among the Swing Line Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Swing Line Loans.
(c) If for any reason Total Outstandings exceed the Facility then in effect, the Borrower shall, within one (1) Business Day, prepay Loans (including Swing Line Loans and L/C Borrowings) and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount necessary to cause Total Outstandings to equal or be less than the Facility then in effect; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Committed Loans and Swing Line Loans the Total Outstandings exceed the Facility then in effect.
2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent, terminate the Facility, or from time to time permanently reduce the Facility in whole or in part without penalty; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate minimum amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Facility if, after giving effect thereto and to any concurrent prepayments hereunder, (x) the Total Outstandings would exceed the Facility or (y) the Facility would be less than $50,000,000 (unless the Facility is terminated in full), and (iv) if, after giving effect to any reduction of the Facility, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Facility, such sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Facility. Any reduction of the Facility shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Facility shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Committed Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date five (5) Business Days after such Loan is made and (ii) the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate for Eurodollar Rate Loans; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans.
(b) (i) While any Event of Default arising under Section 8.01(a)(i), (f) or (g) exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) Upon the request of the Required Lenders, while any Event of Default has occurred and is then continuing (other than as set forth in clause (b)(i) above), the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in subsections (h) and (i) of Section 2.03 and in Sections 2.14(b)(iii) and 2.15(c)(iii):
(a) Facility Fees. The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a facility fee (the “Facility Fee”) equal to the “Facility Fee” component of the Applicable Rate times the actual daily amount of the Facility (or, if the Commitments have terminated, the Total Outstandings), regardless of usage, subject to adjustment as provided in Section 2.17. At all times during the Availability Period (and thereafter so long as any Committed Loans, Swing Line Loans or L/C Obligations remain outstanding), including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period (and, if applicable, thereafter on demand). The Facility Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which such Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which such Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of the Reporting Entity or for any other reason, the Borrower, the Administrative Agent or the Required Lenders determine that (i) the Total Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, if applicable, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under any other provision of this Agreement, including without limitation, Section 2.03(c)(iii), 2.03(h) or 2.08(b) or under Article VIII. The Borrower’s obligations under this paragraph shall survive the termination of the Facility and the repayment of all other Obligations hereunder.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.11(a) above, each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by any Obligor shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by any Obligor hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any Obligor shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by the Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the applicable L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due such parties.
2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them in respect of the Facility, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.13 shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.16, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section 2.13 shall apply).
Each Obligor consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Obligor rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Obligor in the amount of such participation.
2.14 Extension of Maturity Date.
(a) Request for Extension. The Borrower may, by written notice to the Administrative Agent (such notice, an “Extension Notice”) request that the Lenders extend the Maturity Date for an additional six (6) month period beyond the Initial Maturity Date (the “Second Initial Maturity Date”) and (if so extended) for an additional six (6) month period to the fifth anniversary of the Closing Date. The Borrower shall deliver the Extension Notice at least 30 days, but no more than 90 days, prior to the Initial Maturity Date and, with respect to the second extension, at least 30 days, but no more than 90 days, prior to the Second Initial Maturity Date. The Administrative Agent shall distribute any such Extension Notice to the Lenders promptly following its receipt thereof.
(b) Conditions Precedent to Effectiveness of Maturity Date Extension. The effectiveness of each such extension of the Maturity Date is subject to satisfaction of each of the following requirements as determined in good faith by the Administrative Agent:
(i) the Administrative Agent shall have received an Extension Notice within the period required under Section 2.14(a) above;
(ii) on the date of such Extension Notice and both immediately before and immediately after giving effect to such extension of the Initial Maturity Date or the Second Initial Maturity Date, as applicable, no Default shall have occurred and be continuing;
(iii) the Borrower shall have paid to the Administrative Agent, for the pro rata benefit of the Lenders, an extension fee in amounts equal to 0.075% multiplied by such Lender’s Commitment that is proposed to be extended on the date such proposed extension is to become effective, it being agreed that such fee shall be fully earned upon the effectiveness of each such extension of the Maturity Date and shall not thereafter be refundable for any reason;
(iv) the Administrative Agent shall have received a certificate of each Obligor dated as of the effective date of the extension of the Initial Maturity Date or the Second Initial Maturity Date, as applicable, signed by a Responsible Officer of such Obligor (A) certifying and attaching the resolutions adopted by such Obligor approving or consenting to such extension and (B) certifying that (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the date of the Extension Notice and, both immediately before and immediately after giving effect to such extension of the Initial Maturity Date or the Second Initial Maturity Date, as applicable, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date, (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (x)) after giving effect to such qualification and (z) for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section 6.01, and (2) no Default shall have occurred and is then continuing; and
(v) the Obligors shall have delivered to the Administrative Agent reaffirmations of their respective obligations under the Loan Documents (after giving effect to the extension), and acknowledgments and certifications that they have no claims, offsets or defenses with respect to the payment or performance of any of the Obligations, including, without limitation, reaffirmations of the Guaranty, executed by the Obligors.
(c) Conflicting Provisions. This Section 2.14 shall supersede any provisions in Section 11.01 to the contrary.
2.15 Increase in Facility.
(a) Request for Increase. Provided that no Default shall have occurred and is then continuing, upon written notice to the Administrative Agent, the Borrower may, at any time and from time to time, elect to increase the Facility to an amount not exceeding $750,000,000 in the aggregate after giving effect to such increase; provided that any such request for an increase shall be in a minimum amount of $50,000,000 or such other amount reasonably agreed to by the Borrower and the Administrative Agent.
Each notice from the Borrower pursuant to this Section 2.15 shall specify the identity of each Lender and each Eligible Assignee that it has or proposes to approach to provide all or a portion of such increase (subject in each case to any requisite consents required under Section 11.06). Each designated existing Lender shall notify the Administrative Agent and the Borrower within 20 Business Days whether or not it agrees to provide all or a portion of such increase and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any existing Lender approached to provide all or a portion of such increase may elect or decline, in its sole discretion, to provide all or a portion of such increase offered to it. Any designated Lender not responding within such time period shall be deemed to have declined to increase its Commitment. Any Eligible Assignee providing any portion of such increase that is not an existing Lender shall become a Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a “New Lender Joinder Agreement”). The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.
(b) Effective Date and Allocations. If the Facility is increased in accordance with this Section 2.15, the Borrower (in consultation with the Administrative Agent and subject to confirmation by the Administrative Agent that the conditions precedent set forth in Section 2.15(c) have been satisfied) shall determine the effective date (each an “Increase Effective Date”) and the final allocation of such increase among the Lenders and Eligible Assignees. The Administrative Agent shall promptly notify the Borrower, the Lenders and any party that is to become a Lender on the Increase Effective Date of the final allocation of such increase and the Increase Effective Date. The Administrative Agent is authorized and directed to amend and distribute to the Lenders, including any party becoming a Lender on the Increase Effective Date, a revised Schedule 2.01 that gives effect to the increase and the allocation among the Lenders.
(c) Conditions to Effectiveness of Increase. As conditions precedent to each such increase, on or prior to the applicable Increase Effective Date, (i) the Administrative Agent shall have received a certificate of each Obligor dated as of such Increase Effective Date signed by a Responsible Officer of such Obligor (x) certifying and attaching the resolutions adopted by such Obligor approving or consenting to such increase, and (y) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such Increase Effective Date, except to the extent that (1) such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default shall have occurred and is then continuing, (ii) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such increase, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent, each Swing Line Lender and each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such increase of the amount by which its Commitment will be increased, which confirmation shall be acknowledged and consented to in writing by each Swing Line Lender and each L/C Issuer, (iii) if requested by the Administrative Agent or any new Lender or Lender increasing its Commitment, the Administrative Agent shall have received a favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the increase in the aggregate amount of the Facility as the Administrative Agent may reasonably request and (iv) the Borrower shall have paid to the Arrangers the fee required to be paid pursuant to the Fee Letter in connection therewith.
(d) Settlement Procedures. On each Increase Effective Date, promptly following fulfillment of the conditions set forth in clause (c) of this Section 2.15, the Administrative Agent shall notify the Lenders of the occurrence of the increase of the Facility effected on such Increase Effective Date and the amount of the Commitments and the Applicable Percentage of each Lender as a result thereof. In the event that an increase in the Facility results in any change to the Applicable Percentage of any Lender, then on the Increase Effective Date, as applicable, (i) the participation interests of the Lenders in any outstanding Letters of Credit and Swing Line Loans shall be automatically reallocated among the Lenders in accordance with their respective Applicable Percentages after giving effect to such increase, (ii) any new Lender, and any existing Lender whose Commitment has increased, shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased Applicable Percentage of all existing Committed Loans, (iii) the Administrative Agent will use the proceeds thereof to pay to all existing Lenders whose Applicable Percentage is decreasing such amounts as are necessary so that each Lender’s share of all Committed Loans, will be equal to its adjusted Applicable Percentage, and (iv) the Borrower shall pay any amounts required pursuant to Section 3.05 on account of the payments made pursuant to clause (iii) of this sentence.
(e) Conflicting Provisions. This Section 2.15 shall supersede any provisions in Section 2.13 or 11.01 to the contrary.
2.16 Cash Collateral.
(a) Certain Credit Support Events. If (i) an L/C Issuer has honored any full or partial drawing request under any Letter of Credit issued by it and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 8.02(c), or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the applicable L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.17(a)(iii) any Cash Collateral provided by the Defaulting Lender). Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the applicable L/C Issuer.
(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.16(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuers as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.03, 2.05, 2.17 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including
by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuers that there exists excess Cash Collateral; provided, however, that (x) Cash Collateral furnished by or on behalf of an Obligor shall not be released during the continuance of a Default (and following application as provided in this Section 2.16 may be otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the L/C Issuers may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.17 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or any Swing Line Lender hereunder; third, to Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.16; fourth, as the Borrower may request (so long as no Default has occurred and is then continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.16; sixth, to the payment of any amounts owing to the Lenders, any L/C Issuer or any Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such L/C Issuer or such Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default has occurred and is then continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans or L/C Borrowings were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.17(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) Each Defaulting Lender shall be entitled to receive (x) Facility Fees payable under Section 2.09(a) for any period during which such Lender is a Defaulting Lender only to the extent allocable to the sum of (1) the outstanding principal amount of the Committed Loans funded by it, and (2) its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16 and (y) Letter of Credit Fees for any period during which such Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16.
(B) With respect to any Facility Fee or Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the L/C Issuers and Swing Line Lenders, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuers’ or Swing Line Lenders’ Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender that is a Lender to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that
Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.16.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swing Line Lenders and the L/C Issuers, agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.17(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of any Obligor under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or an Obligor, then the Administrative Agent or such Obligor shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.
(ii) If any Obligor or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) such Obligor or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by such Obligor or the Administrative Agent, as required by such Laws, to be required based
upon the information and documentation it has received pursuant to subsection (e) below, (B) such Obligor or the Administrative Agent, as required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions for Indemnified Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(iii) If any Obligor or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such Obligor or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) such Obligor or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Obligor shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Obligors. Without limiting the provisions of subsection (a) above, the Obligors shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnifications. (iii) Each of the Obligors shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.
(ii) Each Lender and each L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or such L/C Issuer (but only to the extent that any Obligor has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
Obligors to do so), (y) the Administrative Agent and the Obligors, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Obligors, as applicable, against any Excluded Taxes attributable to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent or an Obligor in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).
(d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by any Obligor or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Any Lender (which solely for purposes of this Section 3.01(e) shall include the Administrative Agent) that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B), (ii)(C) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) in the case of a foreign Lender, for whom payments under the Loan Documents constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, executed copies of IRS Form W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner of payments made under any Loan Documents, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of Exhibit G‑4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Obligor or with respect to which any Obligor has paid additional amounts pursuant to this Section 3.01, it shall pay to such Obligor an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by an Obligor this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that each Obligor, upon the request of the Recipient, agrees to repay the amount paid over
to such Obligor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to any Obligor pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Obligor or any other Person.
(g) Payments made by Administrative Agent. For the avoidance of doubt, any payments made by the Administrative Agent to any Lender shall be treated as payments made by the applicable Obligor.
(h) L/C Issuers and Swing Line Lenders. For purposes of this Section 3.01, the term “Lender” shall include the L/C Issuers and the Swing Line Lenders.
(i) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Facility and the repayment, satisfaction or discharge of all other Obligations.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the legal authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market (each, a “Eurodollar Illegality Event”), then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the
illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. This Section 3.02 shall supersede any provisions in Section 2.13 to the contrary.
During any period in which a Eurodollar Illegality Event is in effect, the Borrower may request, through the Administrative Agent, that the Lenders affected by such Eurodollar Illegality Event confirm that the circumstances giving rise to the Eurodollar Illegality Event continue to be in effect. If, within thirty (30) Business Days following such confirmation request, such Lenders have not confirmed the continued effectiveness of such Eurodollar Illegality Event, then such Eurodollar Illegality Event shall no longer be deemed to be in effect; provided that (A) the Borrower shall not be permitted to submit any such request more than once in any 30-day period and (B) nothing contained in this Section 3.02 or the failure to provide confirmation of the continued effectiveness of such Eurodollar Illegality Event shall in any way affect the Lenders’ right to provide any additional notices of an Eurodollar Illegality Event as provided in this Section 3.02.
3.03 Inability to Determine Rates. If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof (a) the Administrative Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a)(i) above, the “Impacted Loans”), or (b) the Administrative Agent or the affected Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender (each of (a) through (b), a “Market Disruption Event”). Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods) and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the affected Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
During any period in which a Market Disruption Event is in effect, the Borrower may request, through the Administrative Agent, that the affected Lenders (who gave such notice), as applicable, confirm that the circumstances giving rise to the Market Disruption Event continue to be in effect. If, within thirty (30) Business Days following such confirmation request, the affected Lenders have
not confirmed the continued effectiveness of such Market Disruption Event, then such Market Disruption Event shall no longer be deemed to be in effect; provided that (A) the Borrower shall not be permitted to submit any such request more than once in any 30-day period and (B) nothing contained in this Section 3.03 or the failure to provide confirmation of the continued effectiveness of such Market Disruption Event shall in any way affect the affected Lenders’ right to provide any additional notices of a Market Disruption Event as provided in this Section 3.03.
Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this Section 3.03, the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this Section 3.03, (2) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e)) or any L/C Issuer;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense (excluding any Tax described in the parenthetical contained in clause (ii) preceding) affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered. If any Lender or L/C Issuer determines, in its sole discretion exercised in good faith, that it has received a refund of any amounts as to which it has been paid by Borrower pursuant to this Section 3.04(a), an amount equal to such refund (but only to the extent of the payments made by the Borrower under this Section 3.04), net of all out-of-pocket expenses of such Lender or such L/C Issuer shall be deducted from the interest amount payable by the Borrower to such Lender or such L/C Issuer for the next subsequent calendar month.
(b) Capital Requirements. If any Lender or any L/C Issuer, as applicable, determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer, as applicable, setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section 3.04 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable 10 Business Days from receipt of such notice.
(f) Notwithstanding the foregoing, a Lender will not be entitled to demand, and the Borrower will not be obligated to pay, any amount under this Section 3.04 to the extent that such demand is applied to the Obligors in a discriminatory manner.
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert into any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of the replacement of a Lender pursuant to Sections 3.06(b) and 11.13;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. Each Lender may make any Credit Extension to the Borrower through any Lending Office; provided that the exercise of this option shall not affect the obligation of the Borrower to repay the Credit Extension in accordance with the terms of this Agreement. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then, at the request of the Borrower, such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous in any material respect to such Lender or such L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender determines or any Governmental Authority has asserted that it is unlawful for such Lender or its Lending Office to make, maintain or fund Loans pursuant to Section 3.02 and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.
3.07 Survival. All of the Borrower’s obligations under this Article III shall survive the termination of the Facility, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Obligor, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, in such number as requested by Administrative Agent;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note executed by the Borrower in favor of each Lender requesting a Note (which, to the extent delivered via e-mail (in a .pdf format) or telecopies, shall be followed promptly by originals);
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Obligor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Obligor is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Obligor is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (A) Sullivan & Cromwell LLP, as New York counsel to the Borrower, and (B) Geralyn M. Presti, in-house counsel to the Borrower, each addressed to the Administrative Agent and each Lender, as to such matters concerning the Obligors and the Loan Documents as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all third-party consents, licenses and approvals required in connection with the execution, delivery and performance by each Obligor and the validity against each Obligor of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such third-party consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) has a reasonable probability of being determined adversely and if determined adversely would reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit
Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(ix) a duly completed compliance certificate signed by the chief financial officer of the Borrower, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date and the repayment of all Indebtedness under the Existing Credit Facility) and including in reasonable detail the calculations required to establish compliance with the covenants set forth in Section 7.09(a) and Section 7.09(e) (whether or not such covenants are required to be tested pursuant to such sections) (such compliance certificate, the “Pro Forma Closing Date Compliance Certificate”).
(x) evidence that substantially concurrently with the Closing Date all Indebtedness under the Existing Credit Facility (including all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith) has been repaid in full and all commitments thereunder have been terminated and all Liens in connection therewith have been released;
(xi) the financial statements referenced in Section 5.05(a) and (b);
(xii) a list of all Unencumbered Pool Properties as of the Closing Date;
(xiii) such additional assurances or certifications with respect to satisfaction of the conditions precedent in Article IV as the Administrative Agent, the L/C Issuers, the Swing Line Lenders or the Required Lenders reasonably may require; and
(xiv) the Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
(b) Any fees required hereunder or under the Fee Letter to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary outside counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) at least two (2) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender 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 Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
(a) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (i)) after giving effect to such qualification and (iii) that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01;
(b) as of the date of such Credit Extension, no Default shall then exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof;
(c) any such proposed Credit Extension does not exceed the unused portion of the Facility at such time; and
(d) the Administrative Agent and, if applicable, an L/C Issuer or the Swing Line Lenders shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a), (b) and (c) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.01 Existence, Qualification and Power. Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, except, solely in the case of a Subsidiary of the Borrower that is not an Obligor, to the extent that the failure of such Person to be duly organized or formed and in good standing would not reasonably be expected to have a Material Adverse Effect, (b) has all requisite power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own or lease its assets and carry on its business and (ii) in the case of an Obligor, execute, deliver and perform its obligations under the Loan Documents to which it is a party and consummate the transactions contemplated by the Loan Documents, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and performance by each Obligor of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien (other than a Lien permitted hereby) under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries, which would reasonably be expected to have a Material Adverse Effect or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.
5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person that has not been obtained or made is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Obligor of this Agreement or any other Loan Document or for the consummation of any of the transactions contemplated hereby.
5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Obligor that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of each Obligor that is party thereto, enforceable against each such Obligor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, or by general equitable principles relating to enforceability (regardless of whether enforcement is sought at law or equity).
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and, in the case of the Pro Forma Consolidation Method financial statements, utilizing accounting principles based on the Pro Rata Consolidation Method as opposed to the full consolidation method of accounting; (ii) fairly present, in all material respects, the financial condition of the Reporting Entity and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Reporting Entity and its Subsidiaries
as of the date thereof, including liabilities for taxes, material commitments and Indebtedness to the extent required to be shown pursuant to GAAP.
(b) The unaudited consolidated balance sheets of the Borrower dated March 31, 2015 and June 30, 2015, and the related consolidated statements of income or operations, shareholders’ equity, and cash flows for the fiscal quarters ended on such dates, (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and, in the case of the Pro Forma Consolidation Method financial statements, utilizing accounting principles based on the Pro Rata Consolidation Method as opposed to the full consolidation method of accounting, and (ii) fairly present, in all material respects, the financial condition of the Reporting Entity and its Subsidiaries as of the date thereof and its results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Since December 31, 2014, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
(d) The consolidated forecasted balance sheet and statements of income and cash flows of the Reporting Entity delivered pursuant to Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts (it being understood and agreed that forecasts, estimates and projections as to future events are not to be viewed as facts or guaranties of future performance, that actual results during the period or periods covered by such projections may differ from the projected results and that such differences may be material and that the Reporting Entity makes no representation that such representations will in fact be realized). As to statements, information and reports specified as having been derived by the Reporting Entity from third parties, other than Affiliates of the Reporting Entity or any of its Subsidiaries, the Reporting Entity represents only that it has no knowledge of any material misstatement therein.
5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Loan Party, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries or against any of their properties or revenues that (a) challenge the validity or enforceability of this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) have a reasonable probability of being determined adversely and if determined adversely would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
5.07 No Default. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08 Ownership of Property. Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.09 Environmental Compliance. Except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither any Loan Party nor any of its Subsidiaries (i) has failed to comply with any applicable Environmental Law or to obtain, maintain or comply with any Environmental Permit required under any applicable Environmental Law, (ii) has incurred any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any facts or conditions that could reasonably be expected to result in any Environmental Liability.
5.10 Insurance. The Loan Parties and their Subsidiaries maintain or require the tenants or managers of their owned properties to maintain insurance that complies with the requirements of Section 6.07.
5.11 Taxes. Each Loan Party and each of its Subsidiaries has timely filed all federal, state and other tax returns and reports required to be filed, and has timely paid all federal, state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (i) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (ii) which would not reasonably be expected to have a Material Adverse Effect.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state Laws. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the knowledge of the Loan Parties, nothing has occurred that would prevent or cause the loss of such tax-qualified status. None of the Unencumbered Pool Properties constitutes a “plan asset” within the meaning of 29 C.F.R. 2510.3-101 as modified in operation by Section 3(42) of ERISA.
(b) There are no pending or, to the knowledge of the Loan Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(c) Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect: (i) no ERISA Event has occurred, and neither any Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) each Loan Party and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards
under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither any Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither any Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments for which the due date has passed; (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
(d) Neither the Borrower nor any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan other than Pension Plans not otherwise prohibited by this Agreement.
5.13 Subsidiaries. Set forth on Schedule 5.13 is a complete and accurate list of all subsidiaries of the Borrower as of the Closing Date showing the jurisdiction of its incorporation or organization and the type of organization it is.
5.14 Margin Regulations; Investment Company Act.
(a) No Loan Party is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (of the Reporting Entity only or of the Consolidated Group) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.15 Disclosure. No written information or written data (excluding any forecasts, projections, budgets, estimates and general market or industry data) furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished or publicly disclosed by any Loan Party) when provided and when taken as a whole with all other information or data provided, furnished or disclosed by the Loan Parties contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that (i) with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time made (it being understood and agreed that forecasts, estimates and projections as to future
events are not to be viewed as facts or guaranties of future performance, that actual results during the period or periods covered by such projections may differ from the projected results and that such differences may be material and that the Borrower makes no representation that such representations will in fact be realized) and (ii) as to statements, information and reports specified as having been derived by any Loan Party from third parties, other than Affiliates of the Loan Parties or any of their respective Subsidiaries, the Borrower represents only that it has no knowledge of any material misstatement therein.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
5.17 Taxpayer Identification Number. Each Obligor’s true and correct U.S. taxpayer identification number is set forth on a list provided to the Administrative Agent on or prior to the Closing Date, which the Administrative Agent is authorized to post on the Platform (or, in the case of a Subsidiary that becomes a Guarantor after the Closing Date, is set forth in the information provided to the Administrative Agent with respect to such Subsidiary pursuant to Section 6.12).
5.18 OFAC; Designated Jurisdictions. No Loan Party, no Subsidiary of any Loan Party nor, to the knowledge of any Loan Party, any other Related Party of a Loan Party, is an individual or entity that is, or is controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) located, organized or resident in a Designated Jurisdiction or (iii) is or has been (within the previous five (5) years) engaged in any transaction with any Sanctioned Person. No Credit Extension, nor the proceeds from any Credit Extension, has been used, directly or, to the knowledge of any Loan Party, indirectly, by the Borrower or any Affiliate thereof to lend, contribute, provide or has otherwise made available to fund any activity or business in any Designated Jurisdiction or to fund any activity or business of any Sanctioned Person.
5.19 REIT Status; Stock Exchange Listing. Upon and at all times following consummation of the REIT Conversion, the Parent will be organized and operated in a manner that will allow it to qualify for REIT Status and both classes of common Equity Interests of the Parent will be listed on the New York Stock Exchange.
5.20 Unencumbered Pool Properties. Each Property included in any calculation of Unencumbered Pool Value or Unencumbered NOI satisfied, at the time of such calculation, all of the requirements contained in the definition of “Eligible Property.”
5.21 Anti-Money Laundering Laws; Anti-Corruption Laws.
(a) Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its Subsidiaries, any Related Party thereof (i) has violated or is in violation of any applicable anti-money laundering law or (ii) has engaged or engages in any transaction, investment, undertaking or activity that conceals the identity, source or destination of the proceeds from any
category of offenses designated in any applicable law, regulation or other binding measure implementing the “Forty Recommendations” and “Nine Special Recommendations” published by the Organisation for Economic Cooperation and Development’s Financial Action Task Force on Money Laundering.
(b) The Loan Parties and their respective Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977 and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than any contingent obligation not yet due and payable), or any Letter of Credit shall remain outstanding (and has not been Cash Collateralized), the Loan Parties shall, and shall (as applicable) cause each of their respective Subsidiaries to (or, solely in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.12, the Borrower shall, or, solely in the case of the covenants set forth in Section 6.15, the Parent and Reporting Entity, as applicable shall):
6.01 Financial Statements. Deliver to the Administrative Agent, on behalf of the Lenders:
(a) as soon as available, but in any event within 120 days after the end of each fiscal year of the Reporting Entity (or, if earlier, ten (10) Business Days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal year ending December 31, 2015), audited consolidated financial statements (consisting of a consolidated balance sheet of the Consolidated Group as at the end of such fiscal year, and the related consolidated statements of operations, changes in shareholders’ equity, and cash flows) for such fiscal year and Pro Rata Consolidation Method financial statements (consisting of a balance sheet and statements of operations), setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, certified by the chief financial officer of the Reporting Entity and audited and accompanied by a report of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing, which report shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception (other than any such qualification or exception solely as a result of the Facility becoming current obligations as a result of the Maturity Date occurring during the fiscal year immediately following the fiscal year for which such statements are furnished) or any qualification or exception as to the scope of such audit, and which report shall state that such financial statements fairly present the consolidated financial condition of the Reporting Entity as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP or words of a similar effect (except for changes with which such independent certified public accountant, if applicable, shall concur and which shall have been disclosed in the notes to such financial statements) (which report shall be subject to the confidentiality limitations set forth herein); and
(b) as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Reporting Entity (or, if earlier, 10 Business Days after
the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal quarter ended September 30, 2015) unaudited consolidated financial statements (consisting of a balance sheet and statements of operations, changes in shareholders’ equity, and cash flows) and Pro Rata Consolidation Method financial statements (consisting of a balance sheet and statement of operations) for the portion of the Reporting Entity’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief financial officer, treasurer or controller of the Reporting Entity as fairly presenting the consolidated financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and
(c) as soon as available, but in any event within 90 days after the end of each fiscal year of the Reporting Entity, forecasts prepared by management of the Reporting Entity, in substantially the form of the forecast delivered to the Administrative Agent prior to the Closing Date, of consolidated balance sheets and statements of income or operations and a one-year cash flow projection of the Consolidated Group for the immediately following fiscal year (including the fiscal year in which the latest Maturity Date occurs); provided, however, that such forecasts shall be furnished for informational purposes only and shall not be a basis for determining or declaring the occurrence, existence or continuation of any Default or Event of Default.
In the case of any filing extension permitted by the SEC, the Reporting Entity may request the consent of the Administrative Agent to extend the time to comply with the requirements of this Section 6.01, which consent shall not be unreasonably withheld, conditioned or delayed.
As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower shall not be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in Sections 6.01(a) and (b) above at the times specified therein.
6.02 Certificates; Other Information. Deliver to the Administrative Agent, on behalf of the Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by the chief financial officer of the Reporting Entity;
(b) promptly after the same are available, and only to the extent not publicly available on EDGAR, copies of each annual report, proxy or financial statement or other report or communication sent to the equity holders of the Reporting Entity, and copies of all annual, regular, periodic and special reports and registration statements which the Reporting Entity may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(c) promptly, except to the extent prohibited by Law or would reasonably be expected to result in the loss of an attorney-client privilege or would violate a confidential obligation to a Person that is not an Affiliate of the Reporting Entity, following any written request therefor, such other information regarding the operations, business or corporate affairs or financial condition of the Consolidated Group or any Consolidated Party, or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent or the Required Lenders through the Administrative Agent may reasonably request; and
(d) promptly after the assertion or occurrence thereof, written notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any applicable Environmental Law or applicable Environmental Permit that could reasonably be expected to have a Material Adverse Effect.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Reporting Entity posts such documents, or provides a link thereto on the Reporting Entity’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Reporting Entity’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Each Obligor hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of any Loan Party hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Obligor hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” each Loan Party shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Loan Parties or their respective securities for purposes of United States federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
6.03 Notices. Promptly notify the Administrative Agent, on behalf of the Lenders:
(a) of the occurrence of any Default;
(b) of any matter that has had or would reasonably be expected to have a Material Adverse Effect;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial reporting practices by any Consolidated Party, including any determination by the Borrower referred to in Section 2.10(b);
(e) of any announcement by Moody’s or S&P of any change or possible change in a Debt Rating; provided that the provisions of this clause (e) shall not apply until such time, if any, as the Parent obtains an Investment Grade Credit Rating;
(f) of any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or the commencement of, or any material development in, any litigation or proceeding affecting the Consolidated Group or any Consolidated Party, in each case, to the extent a Material Adverse Effect would reasonably be expected to result therefrom; and
(g) within ten (10) Business Days of any Loan Party becoming aware of (i) any Release, or threat of Release, of any Hazardous Materials in violation of any applicable Environmental Law at any Property; (ii) any violation of any applicable Environmental Law that any Loan Party or any of their respective Subsidiaries required to be reported in writing or is reportable by such Person in writing (or for which any written report supplemental to any oral report is made) to any federal, state or local environmental agency or (iii) any inquiry, proceeding, investigation, or other action, including a notice from any agency of potential environmental liability, of any federal, state or local environmental agency or board, that in any case involves (A) any Unencumbered Pool Property, or (B) any other Property that, in each case under clauses (i) through (iii) above, could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower and the other Loan Party have taken and propose to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
6.04 Payment of Taxes. Pay and discharge as the same shall become due and payable, all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless (i) the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such Loan Party or such Subsidiary or (ii) the failure to do so would not reasonably be expected to have a Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.02; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which would reasonably be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and protect in good working order and condition, ordinary wear and tear and casualty and condemnation excepted, all of (x) its Unencumbered Pool Properties and (y) its other material properties and equipment necessary in the operation of its business, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; and (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
6.07 Maintenance of Insurance. Maintain and cause each of its Subsidiaries to maintain with financially sound and reputable insurance companies (after giving effect to any self-insurance) insurance with respect to its properties and its business against general liability, property casualty and such other casualties and contingencies as shall be commercially reasonable and in accordance with the customary and general practices of businesses having similar operations in similar geographic areas and in amounts, containing such terms, in such forms and for such periods as may be reasonable and prudent for such businesses.
6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record and account, in accordance with GAAP consistently applied in all material respects and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or such Subsidiary, as the case may be.
6.10 Inspection Rights. Solely with respect to each of the Borrower, the Parent, the Direct Owners of Unencumbered Pool Properties and the Indirect Owners of such Direct Owners, and except to the extent prohibited by applicable Law or as would reasonably be expected to result in the loss of attorney-client privilege, permit representatives and independent contractors of the Administrative Agent (who may be accompanied by representatives and independent contractors of any Lender) to visit and inspect any of its properties, to examine its corporate, financial and operating records and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours to be mutually agreed in advance; provided that, unless an Event of Default has occurred and is continuing, (i) only one (1) such inspection per calendar year shall be at the expense of the Borrower and (ii) there shall be no more than two (2) inspections in any calendar year.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate purposes, including for repaying Indebtedness, financing acquisitions, funding working capital and capital expenditures, development, redevelopment, joint ventures, note purchases and Restricted Payments and Investments to the extent otherwise permitted hereunder, and all other corporate purposes, in each case, including related fees and expenses, not in contravention of any Law or of any Loan Document.
6.12 Additional Unencumbered Pool Properties and Guarantors.
(a) If at any time the Reporting Entity desires to add a Property as an Unencumbered Pool Property, prior to any such inclusion the Reporting Entity shall:
(i) notify the Administrative Agent in writing of its desire to include such Property as an Unencumbered Pool Property, which notice shall also include (A) a certification that such Property is an Eligible Property, (B) if such inclusion occurs prior to the Investment Grade Release, a list of each Wholly Owned Subsidiary, that is (or will be upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof) a Direct Owner or an Indirect Owner of any Direct Owner thereof and each Wholly Owned Subsidiary that is not a Subsidiary Guarantor and is (or will be upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof) a borrower or a guarantor of, or otherwise have a payment obligation in respect of, any Unsecured Indebtedness (other than, in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions) and (C) if such inclusion occurs on or after the Investment Grade Release, a list of each Wholly Owned Subsidiary that is (or will be upon the acquisition or leasing thereof or upon the acquisition of the owner or lessee thereof) a borrower or a guarantor of, or otherwise have a payment obligation in respect of, any Unsecured Indebtedness (other than, in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions) (each such Subsidiary under clause (B) or (C) being referred to hereinafter as a “Proposed Subsidiary Guarantor”);
(ii) at least 10 days prior to the date such Property is to be included as an Unencumbered Pool Property,
(A) provide the Administrative Agent with the U.S. taxpayer identification number for each such Proposed Subsidiary Guarantor (or confirm that such Proposed Subsidiary Guarantor is a disregarded entity for income tax purposes); and
(B) provide the Administrative Agent, on behalf of the Lenders, with all documentation and other information concerning each such Proposed Subsidiary Guarantor that the Administrative Agent or any Lender may reasonably request in order to comply with their obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act;
(iii) cause each such Proposed Subsidiary Guarantor to execute and deliver a joinder agreement in substantially the form attached hereto as Exhibit F; and
(iv) deliver to the Administrative Agent (1) the items referenced in Section 4.01(a)(iii), (iv) and (vi) with respect to such Proposed Subsidiary Guarantor and (2) as and to the extent reasonably requested by the Administrative Agent, a favorable opinion of counsel, which counsel shall be reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender, as to matters concerning such Proposed Subsidiary Guarantor and the Loan Documents as the Administrative Agent may reasonably request.
(b) Within three (3) Business Days of any Wholly Owned Subsidiary (including any Wholly Owned Subsidiary that is released pursuant to Section 11.19) becoming a borrower or guarantor of, or otherwise incurring a payment obligation in respect of, Unsecured Indebtedness (other than in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions), the Reporting Entity shall:
(i) provide the Administrative Agent with the U.S. taxpayer identification number for such Wholly Owned Subsidiary (or confirm that such Wholly Owned Subsidiary is a disregarded entity for income tax purposes);
(ii) provide the Administrative Agent, on behalf of the Lenders, with all documentation and other information concerning such Wholly Owned Subsidiary that the Administrative Agent or any Lender may reasonably request in order to comply with their obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act;
(iii) cause such Wholly Owned Subsidiary to execute and deliver a joinder agreement in substantially the form attached hereto as Exhibit F; and
(iv) deliver to the Administrative Agent (1) the items referenced in Section 4.01(a)(iii), (iv) and (vi) with respect to such Wholly Owned Subsidiary and (2) as and to the extent reasonably requested by the Administrative Agent, a favorable opinion of counsel,
which counsel shall be reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender, as to matters concerning such Wholly Owned Subsidiary and the Loan Documents as the Administrative Agent may reasonably request.
(c) Within one (1) Business Day following consummation of the REIT Conversion the Parent shall become a Guarantor and shall:
(i) execute and deliver a joinder agreement in substantially the form attached hereto as Exhibit F; and
(ii) deliver to the Administrative Agent (1) the items referenced in Section 4.01(a)(iii), (iv) and (vi) with respect to the Parent and (2) a favorable opinion of counsel, which counsel shall be reasonably acceptable to the Administrative Agent (the Administrative Agent agrees that Venable LLP is reasonably acceptable) addressed to the Administrative Agent and each Lender, as to matters concerning the Parent and the Loan Documents as the Administrative Agent may reasonably request.
(d) Notwithstanding anything to the contrary contained in this Agreement, in the event that the results of any such “know your customer” or similar investigation conducted by the Administrative Agent with respect to any Subsidiary are not reasonably satisfactory to the Administrative Agent, such Subsidiary shall not be permitted to become a Guarantor, and for the avoidance of doubt no Property owned or ground leased by such Subsidiary shall be included as an Unencumbered Pool Property unless (i) such Property satisfies all of the Unencumbered Property Criteria (other than the criterion requiring such New Subsidiary or New Subsidiary Guarantor to be a Subsidiary Guarantor) and (ii) the Administrative Agent provides its prior written consent.
6.13 Compliance with Environmental Laws. Comply, and use its commercially reasonable efforts to cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits relating to such properties; obtain and renew all material Environmental Permits necessary for its operations and properties; and conduct any required investigation, study, sampling and testing, and undertake any required cleanup, response, removal, remedial or other action necessary to remove, remediate and clean up all Hazardous Materials at, on, under or emanating from any of the properties owned, leased or operated by it in accordance with the requirements of all applicable Environmental Laws; provided, however, that (a) Loan Parties and their Subsidiaries shall not be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
6.14 Further Assurances. Promptly upon request by the Administrative Agent, (a) correct any material defect or manifest error that may be discovered in any Loan Document and (b) do, execute and take any and all such further acts, deeds, certificates and assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to carry out more effectively the purposes of the Loan Documents.
6.15 Maintenance of REIT Status; New York Stock Exchange. At all times (a) in the case of the Parent, following the REIT Conversion, be organized and operated in a manner that will allow it to qualify for REIT Status and (b) in the case of the Reporting Entity, cause its common Equity Interests to be listed on the New York Stock Exchange.
6.16 Anti-Corruption Laws. Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977 and maintain policies and procedures designed to promote and achieve compliance with such laws.
ARTICLE VII. NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than any contingent obligation not yet due and payable), or any Letter of Credit shall remain outstanding (and has not been Cash Collateralized), the Loan Parties shall not, nor shall they permit (as applicable) any of their respective Subsidiaries to, directly or indirectly:
7.01 Indebtedness. Incur any Indebtedness unless (a) no Default has occurred and is continuing immediately before and immediately after the incurrence of such Indebtedness and (b) immediately after giving effect to the incurrence of such Indebtedness, the Reporting Entity shall be in compliance, on a Pro Forma Basis, with the provisions of Section 7.09.
7.02 Fundamental Changes; Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (including all or substantially all of the Equity Interests in its Subsidiaries) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(a) any Person (other than the Parent or the Borrower) may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary;
(b) any Subsidiary may liquidate or dissolve or sell, transfer, lease or otherwise Dispose of its assets to the Parent, Borrower or another Subsidiary;
(c) any Subsidiary (other than a Material Subsidiary) may liquidate or dissolve or merge or consolidate with or into, or sell, transfer, lease or otherwise Dispose of its assets to, another Person if the Borrower determines in good faith that such liquidation or dissolution, merger or disposition is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(d) any of the Borrower, the Parent and/or their respective Subsidiaries may merge or consolidate with or into, or sell, transfer, lease or otherwise Dispose of all or substantially all of its assets to, any other Person, or liquidate or dissolve so long as:
(i) no Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately after giving effect thereto, the Reporting Entity shall be in compliance, on a Pro Forma Basis, with the provisions of Section 7.09;
provided that, notwithstanding anything to the contrary contained in this Section 7.02, (i) in the event of any Disposition of an Unencumbered Pool Property for which a Direct Owner or an Indirect Owner of such Direct Owner is a Guarantor hereunder or a Disposition of any such Direct Owner or Indirect Owner, the provisions of Section 11.19(b) or (c), as applicable, shall be satisfied and (ii) other than the consummation of the REIT Conversion, in no event shall the Parent or the Borrower be permitted to engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a state of the United States or the District of Columbia.
7.03 Minimum Unencumbered Property Condition. Fail to satisfy the Minimum Unencumbered Property Condition at any time.
7.04 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, if any Event of Default has occurred and is continuing or would result therefrom; provided that (a) prior to the consummation of the REIT Conversion, so long as none of the Obligations have been accelerated under Section 8.02, the Borrower may make a special dividend of up to all accumulated earnings and profits, as measured for U.S. federal income tax purposes, for the period ending at the time that the merger contemplated by the Merger Agreement is consummated, as described in the Registration Statement and (b) upon and following consummation of the REIT Conversion, so long as an Event of Default under Section 8.01(a), (f) or (g) shall not have occurred and be continuing and would not result therefrom and none of the Obligations have been accelerated under Section 8.02, the Parent and the Borrower may declare and pay (i) the amount necessary to enable the Parent to make distributions sufficient to avoid payment by the Consolidated Group of federal or state income or excise tax and (ii) the amount necessary to enable the Parent to make distributions to maintain its status as a REIT. Notwithstanding the foregoing, the Reporting Entity may at any time make distributions payable solely in the form of its common stock.
7.05 Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the Closing Date, or any business substantially related, complementary, ancillary or incidental thereto.
7.06 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Reporting Entity (other than the Parent, the Borrower or a Subsidiary), whether or not in the ordinary course of business, other than on terms substantially as favorable to the Reporting Entity or a Subsidiary thereof as would be obtainable by the Reporting Entity or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to Restricted Payments expressly permitted hereunder.
7.07 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than any Loan Document or any Permitted Pari Passu Provision) that limits the ability of (i) any Subsidiary to make Restricted Payments to any Loan Party, (ii) any Subsidiary to transfer any Unencumbered Pool Property, or the right to receive any income therefrom to any Loan Party, (iii) the Parent or any Subsidiary of the Borrower to Guarantee any Obligations or (iv) any Loan Party to create, incur, assume or suffer to exist Liens on (x) any Unencumbered Pool Property, or the right to receive any income therefrom or proceeds thereof to secure any Obligations, in each case, other than Permitted Property Encumbrances or (y) any Equity Interest of any Direct Owner or any Indirect Owner of any such Direct Owner, or the right to receive any income therefrom or proceeds thereof, in each case, other than Permitted Equity Encumbrances; provided that clauses (i), (ii) and (iv) of this Section 7.07 shall not prohibit any (A) limitation on Negative Pledges incurred or provided in favor of any holder of Secured Indebtedness that is owed to a non-Affiliate of the Reporting Entity and that is permitted under Section 7.01 (provided that such limitation on Negative Pledges shall only be effective against the assets or property securing such Indebtedness), (B) Negative Pledges contained in any agreement in connection with a Disposition permitted by Section 7.03 (provided that such limitation shall only be effective against the assets or property that are the subject of Disposition) and (C) limitations on Restricted Payments or Negative Pledges by reason of customary provisions in joint venture agreements or other similar agreements applicable to Subsidiaries that are not Wholly Owned Subsidiaries; provided, further, that notwithstanding the foregoing, in no event shall any Negative Pledge be permitted with respect to (1) any Unencumbered Pool Property, (2) the Equity Interests of any Direct Owner of an Unencumbered Pool Property (excluding for purposes of this clause (2), limited partnership interests held by RRG B.U.G. Limited Partnership, Mattone Group Jay Street/BUG, LLC and the Sachs Family Partnership, L.P., or their third-party successors and assigns, in their capacities as owners of a Direct Owner of the Property identified as One MetroTech Center) or (3) the Equity Interests of any Indirect Owner of any such Direct Owner.
7.08 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
7.09 Financial Covenants.
(a) Maximum Total Leverage Ratio. Permit on a Pro Forma Basis the the Total Leverage Ratio to exceed (i) 65% at any time on or prior to December 31, 2017 and (ii) 60% at any time subsequent to December 31, 2017. Subsequent to December 31, 2017, such maximum ratio may be increased at the election of the Borrower to 65% for any fiscal quarter in which a Consolidated Party or an Unconsolidated Affiliate completes a Material Acquisition and for up to the next two subsequent consecutive fiscal quarters; provided that such maximum ratio may not be increased for more than four fiscal quarters (whether or not consecutive) during the term of the Facility.
(b) Maximum Secured Leverage Ratio. Permit on a Pro Forma Basis the ratio of (i) Total Secured Indebtedness to (ii) Total Asset Value to exceed (x) 55% at any time on or after March 31, 2016 and prior to January 1, 2019 and (y) 50% at any time subsequent to December 31, 2018.
(c) Maximum Secured Recourse Leverage Ratio. Permit on a Pro Forma Basis the ratio of (i) Total Secured Recourse Indebtedness to (ii) Total Asset Value to exceed 15% at any time on or after March 31, 2016.
(d) Minimum Fixed Charge Coverage Ratio. Permit on a Pro Forma Basis the ratio of (i) Adjusted EBITDA for the trailing four quarter period ending on such date to (ii) Total Fixed Charges for the trailing four quarter period ending on such date to be less than 1.50 to 1.00 at any time on or after March 31, 2016.
(e) Maximum Unsecured Leverage Ratio. Permit on a Pro Forma Basis the ratio of (i) Total Indebtedness that is Unsecured Indebtedness minus Unrestricted Cash in excess of $40,000,000 to (ii) Unencumbered Pool Value to exceed 60% at any time on or after March 31, 2016. Such maximum ratio may be increased at the election of the Borrower to 65% for any fiscal quarter in which a Consolidated Party or an Unconsolidated Affiliate completes a Material Acquisition and for up to the next two subsequent consecutive fiscal quarters; provided that such maximum ratio may not be increased for more than four fiscal quarters (whether or not consecutive) during the term of the Facility.
(f) Minimum Unencumbered Interest Coverage Ratio. Permit on a Pro Forma Basis the ratio of (i) Unencumbered NOI for the trailing four quarter period ending on such date to (ii) the Interest Expense on Unsecured Indebtedness for the trailing four quarter period ending on such date to be less than (x) 1.50 to 1.00 at any time on or after March 31, 2016 and prior to January 1, 2018 and (y) 1.75 to 1.00 at any time subsequent to December 31, 2017.
7.10 Accounting Changes. Make any change in (a) accounting policies or reporting practices, except as required or permitted by GAAP, or (b) fiscal year.
7.11 Amendments of Organization Documents. At any time cause or permit any Obligor’s Organization Documents to be modified, amended, amended and restated or supplemented in any respect whatsoever, without, in each case, the express prior written consent or approval of the Administrative Agent and the Required Lenders, if such changes would adversely affect such Obligor’s ability to repay the Obligations.
7.12 Sanctions; Anti-Money Laundering Laws; Anti-Corruption Laws.
(a) Directly or indirectly, engage in any transaction, investment, undertaking or activity that conceals the identity, source or destination of the proceeds from any category of prohibited offenses designated in any applicable law, regulation or other binding measure by the Organisation for Economic Cooperation and Development’s Financial Action Task Force on Money Laundering or violate these laws or engage in these actions.
(b) Directly or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any Sanctioned Person.
(c) Directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977.
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Obligor fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation (whether upon demand at maturity, by reason of acceleration or otherwise) or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within three (3) Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder, or any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05 (with respect to the Borrower or the Parent), 6.11, 6.12, or Article VII or Article X; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made or any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be incorrect or misleading in any respect after giving effect to such qualification when made or deemed made; or
(e) Cross-Default.
(i) The Borrower, the Parent or any of their respective Subsidiaries fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) or fails to observe or perform any other agreement or condition relating to or in respect of any Indebtedness or Guarantee of Indebtedness (other than Indebtedness hereunder, Nonrecourse Indebtedness and Indebtedness under Derivatives Contracts) having an aggregate principal amount, individually or in the aggregate with all other Indebtedness as to which such a failure exists, of $50,000,000 or more, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice, if required, and the expiration of all grace periods, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or
(ii) the Borrower, the Parent or any of their respective Subsidiaries fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) or fails to observe or perform any other agreement or condition relating to or in respect of any Nonrecourse Indebtedness or Guarantee of Nonrecourse Indebtedness having an aggregate principal amount, individually or in the aggregate with all other Nonrecourse Indebtedness as to which such a failure exists, of $150,000,000 or more, or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Nonrecourse Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice, if required, and the expiration of all grace periods, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; provided that an event described in this clause (ii) will not constitute an Event of Default unless it would (A) result in a Material Adverse Effect or (B) involve Nonrecourse Indebtedness in principal amount in excess of 20% of the aggregate principal amount of all Nonrecourse Indebtedness of the Consolidated Group; or
(iii) there occurs under any Derivatives Contract (other than a Derivatives Contract hedging interest rates) an Early Termination Date (as defined in such Derivatives Contract) resulting from (A) any event of default under such Derivatives Contract as to which any Loan Party is the Defaulting Party (as defined in such Derivatives Contract) and the aggregate Derivatives Termination Values owed by any Loan Party as a result thereof is $50,000,000 or more or (B) any Termination Event (as so defined) under such Derivatives Contract as to which (1) any Loan Party is an Affected Party (as so defined), (2) the aggregate Derivatives Termination Values owed by any Loan Party as a result thereof is $50,000,000 or more and (3) such amount owed remains unpaid by the applicable Loan Party(ies) for 30 consecutive calendar days after the same becomes due;
provided that this clause (e) shall not apply to (x) Secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness (provided that the failure to pay any such Indebtedness shall not constitute a Default so long as the Borrower, its Subsidiaries or the Parent is diligently contesting the payment of the same by appropriate legal proceedings and the Borrower, its Subsidiaries or the Parent have set aside, in a manner reasonably satisfactory to Administrative Agent, a cash reserve sufficient in amount to repay such Indebtedness plus all accrued interest thereon calculated at the default rate thereunder and costs of enforcement in the event of an adverse outcome); or (y) a Repurchase Right that arises with respect to any Indebtedness as a result of the occurrence of any “change of control” or “change of ownership” or any similar event, however denominated, under any indenture or other agreement governing such Indebtedness, so long as, within 120 days following the date on which such Repurchase Right arises, the holders of such Indebtedness no longer have a Repurchase Right with respect to such
Indebtedness (including as a result of the repayment, repurchase, redemption or defeasance of such Indebtedness or the satisfaction by the obligor in respect of such Indebtedness of its obligation to offer to prepay, repurchase, redeem or defease such Indebtedness (and, if applicable, to actually prepay, repurchase, redeem or defease such Indebtedness) in accordance with the terms thereof); or
(f) Insolvency Proceedings, Etc. The Borrower, any Guarantor or any Material Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 consecutive calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 consecutive calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower, any Guarantor or any Material Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower, any Guarantor or any Material Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding $50,000,000 (to the extent not covered by independent third-party insurance as to which the insurer is financially sound and reputable, has been notified of the potential claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $50,000,000, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $50,000,000; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document (other than a release of a Subsidiary Guarantor made in accordance with the provisions of the Loan Documents), or purports to revoke, terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) REIT Status. The Parent shall, for any reason, fail to maintain its REIT Status (after taking into account any cure provisions set forth in the Code that are complied with by the Parent) upon and following the consummation of the REIT Conversion.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Obligors;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents and applicable Laws;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03 Application of Funds. After an exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.16 and 2.17, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers (including fees and time charges for attorneys who may be employees of any Lender or any L/C Issuer) and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees, Facility Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and Obligations then owing under Lender Derivatives Contracts and Lender Cash Management Agreements, ratably among the Lenders, the L/C Issuers, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.16; and
Last, the balance, if any, after all of the Obligations (other than contingent obligations for which no claim has been made) have been paid in full, to the Borrower or as otherwise required by Law.
Subject to Sections 2.03(c) and 2.16, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired or cancelled, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Excluded Derivatives Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Obligors to preserve the allocation to Obligations otherwise set forth above in this Section 8.03.
Notwithstanding the foregoing, Obligations arising under Lender Derivatives Contracts and Lender Cash Management Agreements shall be excluded from the application described above if the Administrative Agent has not received a Designation Notice that has been acknowledged in writing by the Borrower, together with such supporting documentation as the Administrative Agent may
request, from the applicable Hedge Bank or Cash Management Bank, as the case may be. Each Hedge Bank or Cash Management Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE IX. ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and each of the L/C Issuers hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions (other than Sections 9.06 and 9.10). It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative 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 as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or
the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for any Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub‑agents appointed by the Administrative Agent. The Administrative Agent and any such sub‑agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub‑agent and to the Related Parties of the Administrative Agent and any such sub‑agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the approval of the Borrower so long as no Event of Default has occurred and is then continuing (such approval not to be withheld or delayed unreasonably), to appoint a successor, which shall be a commercial bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, subject to the approval of the Borrower so long as no Event of Default has occurred and is then continuing (such approval not to be withheld or delayed unreasonably), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except
for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(j) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.06). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
(d) Any resignation by, or removal of, Bank of America as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as an L/C Issuer and as a Swing Line Lender. If Bank of America or PNC resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c). If Bank of America or PNC resigns as a Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment by the Borrower of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America or PNC, as applicable, to effectively assume the obligations of Bank of America or PNC, as applicable, with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Arrangers, Syndication Agent or Co-Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Obligor, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Obligor) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
9.10 Guaranty Matters. Without limiting the provisions of Section 9.09, each Lender (including in its capacity as a potential Cash Management Bank and potential Hedge Bank) and each L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion to release any Guarantor from its obligations under the Guaranty if required or permitted pursuant to Section 11.19 hereof. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.
9.11 Lender Derivatives Contracts and Lender Cash Management Agreements. Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03 or the Guaranty by virtue of the provisions of this Agreement or any other Loan Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Lender Cash Management Agreements and Lender Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Designation Notice that has been acknowledged in writing by the Borrower with respect to such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Lender Cash Management Agreements and Lender Hedge Agreements in the case of a termination of this Agreement and the Facility.
ARTICLE X. CONTINUING GUARANTY
10.01 Guaranty. Each Guarantor, jointly and severally with the other Guarantors, hereby absolutely, irrevocably and unconditionally guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, and whether arising hereunder or under any other Loan Document, any Lender Cash Management Agreement or Lender Derivatives Contracts (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, reasonable and documented out-of-pocket attorneys’ fees and expenses incurred in connection with the collection or enforcement thereof) (for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that (i) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Derivatives Obligations with respect to such Guarantor and (ii) the liability of each Subsidiary Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount (taking into account any amounts payable to such Guarantor under Section 10.10) that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law. Notwithstanding anything to the contrary contained herein or elsewhere, no
Guarantor shall by virtue of the joint and several nature of its obligations under this Guaranty and the other Loan Documents be liable for any Guaranteed Obligations that constitute Excluded Derivatives Obligations with respect to such Guarantor. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Guarantors, and conclusive for the purpose of establishing the amount of the Guaranteed Obligations absent manifest error. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of any Guarantor under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
10.02 Rights of Lenders. Each Guarantor consents and agrees that the Creditor Parties may, at any time and from time to time, without notice or demand, without the consent of such Guarantor, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Guaranteed Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, sell, or otherwise dispose of, or impair or fail to perfect any Lien on, any security for the payment of this Guaranty or any Guaranteed Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuers and the Lenders in their sole discretion may determine; and (d) release or substitute any other Guarantor or one or more of any endorsers or other guarantors of any of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of the Guarantors under this Guaranty or which, but for this provision, might operate as a discharge of one or more of the Guarantors.
10.03 Certain Waivers. Each Guarantor waives (a) any defense to the payment of the Guaranteed Obligations arising by reason of any disability or other defense of the Borrower, any other Guarantor or any other guarantor of the Guaranteed Obligations or any part thereof, or the cessation from any cause whatsoever (including any act or omission of any Creditor Party) of the liability of the Borrower (other than the defense of prior payment in full of the Guaranteed Obligations); (b) any defense to the payment of the Guaranteed Obligations based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) any requirement to proceed against the Borrower or any other Guarantor, proceed against or exhaust any collateral securing the Guaranteed Obligations, or pursue any other remedy in the power of any Creditor Party whatsoever; (e) any benefit of and any right to participate in any collateral securing the Guaranteed Obligations now or hereafter held by any Creditor Party; and (f) to the fullest extent permitted by law, any and all other defenses to the payment of the Guaranteed Obligations (other than the defense of prior payment in full of the Guaranteed Obligations) or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever
with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations; provided, however, that nothing in this Section 10.03 shall be deemed a waiver of Borrower’s right to assert any compulsory counterclaim, if such counterclaim is compelled under local law or rule of procedure, nor shall the foregoing be deemed a waiver of Borrower’s right to independently assert any claim which would constitute a defense, setoff, counterclaim or crossclaim of any nature whatsoever against the Administrative Agent or any Lender under this Agreement in any separate action or proceeding.
10.04 Obligations Independent. The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations and the obligations of any other guarantor of the Guaranteed Obligations or any part thereof, and a separate action may be brought against any Guarantor to enforce this Guaranty whether or not the Borrower or any other Person is joined as a party. For the avoidance of doubt, all obligations of each Guarantor under this Guaranty are joint and several obligations of all the Guarantors.
10.05 Subrogation. No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Guaranteed Obligations and any amounts payable under this Guaranty (other than contingent obligations for which no claim has been made) have been paid and performed in full and the Facility is terminated, and all Letters of Credit have been cancelled, have expired or terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C Issuers. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust by such Guarantor for the benefit of the Creditor Parties and shall forthwith be paid to the Administrative Agent for the benefit of the Creditor Parties to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
10.06 Termination. This Guaranty is a continuing, absolute, unconditional and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable under this Guaranty (other than contingent obligations for which no claim has been made) are paid in full in cash and the Facility is terminated. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or any Guarantor is made, or any of the Creditor Parties exercises its right of setoff, in respect of the Guaranteed Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Creditor Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Creditor Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of the Guarantors under this paragraph shall survive termination of this Guaranty.
10.07 Subordination. Each Guarantor hereby subordinates the payment of all obligations and indebtedness of any Loan Party owing to such Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower to such Guarantor as subrogee of the Creditor Parties or resulting from such Guarantor’s performance under this Guaranty, to the payment in full in cash of all Guaranteed Obligations; provided that such Guarantor may receive regularly scheduled payments of principal and interest on such obligations and indebtedness from any Loan Party, except upon the occurrence and continuance of an Event of Default. If any amounts are paid to any Guarantor in violation of the foregoing subordination, then such amounts shall be held in trust for the benefit of the Creditor Parties and shall forthwith be paid to the Creditor Parties to reduce the amount of the Guaranteed Obligations, whether matured or unmatured. If the Creditor Parties so request, any such obligation or indebtedness of the Borrower to any Guarantor shall be enforced and performance received by such Guarantor as trustee for the Creditor Parties and the proceeds thereof shall be paid over to the Administrative Agent on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of any Guarantor under this Guaranty.
10.08 Stay of Acceleration. If acceleration of the time for payment of any of the Guaranteed Obligations is stayed, in connection with any case commenced by or against the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the Guarantors immediately upon demand by the Creditor Parties.
10.09 Condition of the Obligors. Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Obligors and any other guarantor of the Guaranteed Obligations such information concerning the financial condition, business and operations of the Obligors and any such other guarantor as such Guarantor requires, and that none of the Creditor Parties has any duty, and such Guarantor is not relying on the Creditor Parties at any time, to disclose to such Guarantor any information relating to the business, operations or financial condition of any Obligor or any other guarantor of the Guaranteed Obligations (such Guarantor waiving any duty on the part of the Creditor Parties to disclose such information and any defense relating to the failure to provide the same).
10.10 Contribution. At any time a payment in respect of the Guaranteed Obligations is made under this Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be determined as provided in the immediately following sentence, with the right of contribution of each Guarantor to be revised and restated as of each date on which a payment (a “Relevant Payment”) is made on the Guaranteed Obligations under this Guaranty. At any time that a Relevant Payment is made by a Guarantor that results in the aggregate payments made by such Guarantor in respect of the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such Guarantor’s Contribution Percentage (as defined below) of the aggregate payments made by all Guarantors in respect of the Guaranteed Obligations to and including the date of the Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Guarantor shall have a right of contribution against each other Guarantor who either has not made any payments or has made payments in respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount less than such other Guarantor’s Contribution Percentage of the aggregate payments made to and including the date of the Relevant Payment by all Guarantors in respect of the Guaranteed Obligations (the aggregate amount of such deficit, the “Aggregate Deficit Amount”)
in an amount equal to (x) a fraction the numerator of which is the Aggregate Excess Amount of such Guarantor and the denominator of which is the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate Deficit Amount of such other Guarantor. A Guarantor’s right of contribution pursuant to the preceding sentences shall arise at the time of each computation, subject to adjustment at the time of each computation; provided that no Guarantor may take any action to enforce such right until after all Guaranteed Obligations and any other amounts payable under this Guaranty (other than contingent obligations for which no claim has been made) are paid in full in cash and the Facility is terminated and all Letters of Credit have been cancelled, have expired or terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C Issuers, it being expressly recognized and agreed by all parties hereto that any Guarantor’s right of contribution arising pursuant to this Section 10.10 against any other Guarantor shall be expressly junior and subordinate to such other Guarantor’s obligations and liabilities in respect of the Guaranteed Obligations and any other obligations owing under this Guaranty. As used in this Section 10.10, (i) each Guarantor’s “Contribution Percentage” shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all Guarantors; (ii) the “Adjusted Net Worth” of each Guarantor shall mean the greater of (x) the Net Worth (as defined below) of such Guarantor and (y) zero; and (iii) the “Net Worth” of each Guarantor shall mean the amount by which the fair saleable value of such Guarantor’s assets on the date of any Relevant Payment exceeds its existing debts and other liabilities (including contingent liabilities, but without giving effect to any Guaranteed Obligations arising under this Guaranty) on such date. All parties hereto recognize and agree that, except for any right of contribution arising pursuant to this Section 10.10, each Guarantor who makes any payment in respect of the Guaranteed Obligations shall have no right of contribution or subrogation against any other Guarantor in respect of such payment until after all Guaranteed Obligations and any other amounts payable under this Guaranty (other than contingent obligations for which no claim has been made) are paid in full in cash and the Facility is terminated and all Letters of Credit have been cancelled, have expired or terminated or have been collateralized to the satisfaction of the Administrative Agent and the L/C Issuers. Each of the Guarantors recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an asset in favor of the party entitled to such contribution. In this connection, each Guarantor has the right to waive its contribution right against any Guarantor to the extent that after giving effect to such waiver such Guarantor would remain Solvent, in the determination of the Administrative Agent or the Required Lenders.
10.11 Keepwell. Each Obligor that is a Qualified ECP Guarantor at the time the Guaranty by any Specified Loan Party becomes effective with respect to any Derivatives Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Derivatives Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Guaranty and the other Loan Documents in respect of such Derivatives Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.11 shall remain in full force and effect until the Guaranteed Obligations have been paid and performed in full. Each Qualified ECP Guarantor intends this Section 10.11 to constitute, and this
Section 10.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
ARTICLE XI. MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders, the Borrower and any applicable Obligor, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that (i) the Administrative Agent and the Borrower may, without the consent of any Lender or any Guarantor then party hereto, amend this Agreement to add a Subsidiary as a “Guarantor” hereunder pursuant to a joinder agreement in substantially the form of Exhibit F and (ii) notwithstanding the foregoing provisions of this Section 11.01 (including the first proviso above), no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written consent of each Lender;
(b) extend (except as provided in Section 2.14) or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender entitled to such payment;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to such payment; provided, however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section 11.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or
(g) release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except pursuant to the Investment Grade Release;
and, provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by an L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended (except as provided in Section 2.14) without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender in a disproportionately adverse manner relative to other affected Lenders shall require the consent of such Defaulting Lender.
Notwithstanding any provision herein to the contrary, the Administrative Agent, with the consent of the Borrower, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity, inconsistency or defect or correct any typographical error or other manifest error in any Loan Document so long as such amendment, modification or supplement does not impose additional obligations on any Lender; provided that the Administrative Agent shall promptly give the Lenders notice of any such amendment, modification or supplement.
Notwithstanding any provision herein to the contrary, this Agreement may be amended (i) to add one or more additional revolving credit or term loan facilities to this Agreement, in each case subject to the limitations in Section 2.15, and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder with the written consent of the Administrative Agent and the Lenders providing such additional facilities, and (ii) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent and approved by such Lenders, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.
11.02 Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to an Obligor, the Administrative Agent, an L/C Issuer or a Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 11.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Loan Parties).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e‑mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, any Swing Line Lender, any L/C Issuer or the Obligors may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal
business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet. In addition, in no event shall any Agent Party have any liability to any Loan Party, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Obligors, the Administrative Agent, the L/C Issuers and the Swing Line Lenders may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier, telephone number or electronic mail address for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to one or more of the Borrower and its Subsidiaries or their respective securities for purposes of United States federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Committed Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of an Obligor even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. Each Obligor shall jointly and severally indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of an Obligor. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Obligors or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay, or cause to be paid, (i) all reasonable and documented out-of-pocket fees and expenses incurred by the Administrative Agent, the Arrangers and their respective Affiliates (including but not limited to (a) the reasonable and documented fees, charges and disbursements of one outside legal counsel for the Administrative Agent and, if reasonably deemed necessary by the Administrative Agent or Arrangers, one local counsel retained in any material jurisdiction and (b) due diligence expenses), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments,
amendments and restatements, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (including the reasonable and documented fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or any L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.04, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Arranger, each Swing Line Lender, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, (and will reimburse each Indemnitee as the same are incurred for) any and all losses, claims, damages, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of one outside counsel for the Administrative Agent and one outside counsel for the other Indemnitees, unless such other Indemnitees cannot be represented by one outside counsel due to actual or asserted conflicts of interest, in which case the other Indemnitees shall be indemnified from and against and reimbursed for the reasonable and documented fees, disbursements and other charges of such number of other counsel as are necessary in light of such conflicts of interests), arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials at, on, under or emanating from any Property or any Environmental Liability related to any Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or any of such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or (2) a dispute solely among Indemnitees and not involving any act or omission of the Borrower or any of its Affiliates (other than, with respect to the Administrative Agent, any of the Arrangers or any other
agent or arranger under this Agreement, any dispute involving such Person in its capacity or in fulfilling its role as such). Without limiting the provisions of Section 3.01(d), this Section 11.04(b) shall not apply with respect to Taxes covered by Section 3.01, other than any Taxes that represent losses, claims, damages, liabilities or related expenses arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to pay any amount required under Section 11.04(a) or (b) to be paid by it to the Administrative Agent (or any sub-agent thereof), the Arrangers, the Swing Line Lender, the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Arrangers, the Swing Line Lenders, the L/C Issuers or such Related Party, as the case may be, such Lender’s ratable share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure of all Lenders at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided, further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), any Arranger, any Swing Line Lender or any L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), any Swing Line Lender or any L/C Issuer in connection with such capacity. The obligations of the Lenders under this Section 11.04(c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no Obligor shall assert, and each Obligor hereby waives and acknowledges that no other Person shall have, any claim against any Indemnitee, in each case on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section 11.04 shall be payable not later than ten (10) Business Days after demand therefor.
(f) Survival. The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, any L/C Issuer and any Swing Line Lender, the replacement of any Lender, the termination of the Facility and the repayment, satisfaction or discharge of all the other Obligations.
11.05 Payments Set Aside. To the extent that any payment by or on behalf of any Obligor is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount received by such Lender or such L/C Issuer and so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Obligor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and any attempted such assignment or transfer without such consent shall be null and void) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section 11.06(d) or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section 11.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 11.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that (in each case with respect to any Facility) any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it under any Facility or contemporaneous assignments to related Approved Funds (determined
after giving effect to such Assignments) that equal at least the amount specified in subsection (b)(i)(B) of this Section 11.06 in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section 11.06, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the applicable Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $10,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to a Swing Line Lender’s rights and obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section 11.06 and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment, or (2) such assignment is to a Lender, or an Affiliate of a Lender or Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment (other than to a Disqualified Institution) unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if an assignment is to a Person that is not a Lender; and
(C) the consent of the L/C Issuers and the Swing Line Lenders shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, and the parties to each assignment (other than the Borrower) shall pay or cause to be paid to the Administrative Agent a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to any Loan Party or any Loan Party’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (C) a Disqualified Institution or (D) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).
(vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by such Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to (i) the assignee Lender and/or (ii) in the case of a partial assignment by a Lender of its rights or obligations under this Agreement, the assigning Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection (other than a purported assignment or transfer to a Disqualified Institution) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d).
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office in the United States a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by any Loan Party and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower, any other Obligor or the Administrative Agent, sell participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person), a Defaulting Lender, a Disqualified Institution, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the other Obligors, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b) provided that the Participant shall be subject to the requirements and limitations therein as though it were a Lender (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender
who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under Section 11.06(b) and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Certain Pledges. Any Lender may at any time pledge or assign, or grant a security interest in, all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment, or grant of a security interest, to secure obligations to a Federal Reserve Bank or any other central bank; provided that no such pledge or assignment or grant shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee or grantee for such Lender as a party hereto.
(f) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time an L/C Issuer or Swing Line Lender assigns all of its Commitment and Loans pursuant to Section 11.06(b) above, such L/C Issuer or Swing Line Lender may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as an L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as a Swing Line Lender, as the case may be. In the event of any such resignation as an L/C Issuer or a Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of such Lender as an L/C Issuer or a Swing Line Lender, as the case may be. If a Lender that is an L/C Issuer resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it
that are outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If a Lender that is a Swing Line Lender resigns as a Swing Line Lender, it shall retain all the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued by the resigning L/C Issuer, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.
(g) Disqualified Institutions. (i) No assignment or participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of an update to the Disqualified Institutions List pursuant to the definition of “Disqualified Institution”), (x) such assignee shall not retroactively be disqualified from becoming a Lender and (y) the execution by the Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Institution. Any assignment in violation of this clause (g)(i) shall not be void, but the other provisions of this clause (g) shall apply.
(ii) If any assignment or participation is made to any Disqualified Institution without the Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, (A) terminate any Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to such Disqualified Institution in connection with such Commitment (but only to the extent that no proceeds of Committed Loans are used to make such repayment), and/or (B) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 11.06), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder,
(iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive information, reports or
other materials provided to the Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (a “Bankruptcy Plan”), each Disqualified Institution party hereto hereby agrees (1) not to vote on such Bankruptcy Plan, (2) if such Disqualified Institution does vote on such Bankruptcy Plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Bankruptcy Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(iv) The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Institutions provided by the Borrower and any update thereto from time to time (the “Disqualified Institutions List”) on the Platform, including that portion of the Platform that is designated for “public side” Lenders and/or (B) provide Disqualified Institutions List to each Lender requesting the same.
(v) The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.
11.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and such disclosure is in connection with such disclosing Person acting as Administrative Agent, Lender or L/C Issuer), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority,
such as the National Association of Insurance Commissioners) (in which case the disclosing party agrees, to the extent practicable and permitted by applicable law, to notify the Borrower promptly prior to such disclosure), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 11.07, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement (in each case, other than any Disqualified Institution) or any Eligible Assignee invited to be a Lender pursuant to Section 2.15(c) or Section 11.01 or (ii) any actual or prospective party (or its Related Parties) (in each case, other than any Disqualified Institution) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, except that no such agreement shall be required in connection with the disclosure to any such Person of the names of the Disqualified Institutions or the tax identification numbers of the Obligors posted on the Platform, (g) on a confidential basis to (i) any rating agency in connection with rating the Reporting Entity or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 11.07 or (y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or another Loan Party. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent, the Syndication Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. For purposes of this Section 11.07, “Information” means all information received from the Borrower or any Subsidiary thereof relating to the Borrower or any Subsidiary or any of their respective businesses (including the Disqualified Institutions List), other than any such information that is available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary thereof, provided that, in the case of information received from any Loan Party or any Subsidiary thereof after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States federal and state securities Laws.
11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Obligor against any and all of the obligations of the Borrower or such Obligor now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Obligor may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or such L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart
of a signature page of this Agreement by telecopier or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, any L/C Issuer or any Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
11.13 Replacement of Lenders. If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrower shall have paid (or caused the fee to be paid) to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each Lender agrees that, if the Borrower elects to replace such Lender in accordance with this Section 11.13, it shall promptly execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment and shall deliver to the Administrative Agent any Note (if a Note has been issued in respect of such Lender’s Loans) subject to such Assignment and Assumption; provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register.
11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ANY OTHER PARTY IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION 11.14. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.
11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, amendment and restatement, waiver or other modification hereof or of any other Loan Document), each of the Obligor acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Borrower, each of the other Obligors and their respective Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B) each Obligor has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each Obligor is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, each of the Lenders and each of the Arrangers is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, any other Obligor or any of their respective Affiliates,
or any other Person and (B) none of the Administrative Agent, any Lender or any Arranger has any obligation to the Borrower, any other Obligor or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lenders and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Obligors and their respective Affiliates, and none of the Administrative Agent, any Lender or any Arranger has any obligation to disclose any of such interests to the Borrower, the other Obligors or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Obligor hereby waives and releases any claims that it may have against the Administrative Agent, any Lender or any Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
11.17 Electronic Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments, amendments and restatements or other modifications, Committed Loan Notices, Swing Line Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
11.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Obligor that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Obligor, which information includes the name and address of each Obligor and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Obligor in accordance with the Act. Each Obligor shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
11.19 Releases of Subsidiary Guarantors; Re-Designation of Unencumbered Pool Properties.
(a) Investment Grade Release. If at any time the Parent obtains an Investment Grade Credit Rating, the Administrative Agent shall (at the sole cost of the Borrower and pursuant to documentation reasonably satisfactory to the Administrative Agent) promptly release all of the Subsidiary Guarantors (other than any Subsidiary that is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Unsecured Indebtedness (other than, in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions)) from their obligations under the Guaranty (the “Investment Grade Release”), subject to satisfaction of the following conditions:
(i) The Parent shall have delivered to the Administrative Agent, on or prior to the date that is ten (10) Business Days (or such shorter period of time as agreed to by the Administrative Agent) before the date on which the Investment Grade Release is to be effected, an Officer’s Certificate,
(A) certifying that the Parent has obtained an Investment Grade Credit Rating, and
(B) notifying the Administrative Agent and the Lenders that it is requesting the Investment Grade Release, which notice shall include a list of the Subsidiary Guarantors that are to be released, and
(ii) The Parent shall have submitted to the Administrative Agent and the Lenders, within one (1) Business Day prior to the date on which the Investment Grade Release is to be effected, an Officer’s Certificate certifying to the Administrative Agent and the Lenders that (A) none of the Subsidiary Guarantors that are to be released is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Unsecured Indebtedness (other than, in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions) and (B) immediately before and immediately after giving effect to the Investment Grade Release,
1. no Default has occurred and is continuing or would result therefrom (including as a result of the failure to satisfy the Minimum Unencumbered Property Condition), and
2. the representations and warranties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects on and as of the date of such release and immediately after giving effect to such release, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier
date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 11.19(a), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
The Administrative Agent will (at the sole cost of the Borrower) following receipt of such Release Notice and Officer’s Certificate, and each of the Lenders and the L/C Issuers irrevocably authorizes the Administrative Agent to, execute and deliver such documents as the Parent or such Subsidiary Guarantor may reasonably request as is necessary or desirable to evidence the release of such Subsidiary Guarantor from its obligations under the Guaranty, which documents shall be reasonably satisfactory to the Administrative Agent.
(b) Release and re-designation prior to the Investment Grade Release. At the request of the Reporting Entity, the Administrative Agent shall release any Subsidiary Guarantor from its obligations under the Guaranty, or re-designate any Unencumbered Pool Property such that it is no longer an Unencumbered Pool Property, subject to satisfaction of the following conditions:
(i) the Reporting Entity shall have delivered to the Administrative Agent, at least five (5) Business Days prior to the date of the proposed release or re-designation (or such shorter period of time as agreed to by the Administrative Agent in writing), a written request for such release or re-designation (a “Release Notice”) which shall identify the Subsidiary or Property, as applicable, to which it applies and the proposed date of the release or re-designation,
(ii) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the effective date of such release or re-designation and, both before and after giving effect to such release or re-designation, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (B) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (A)) after giving effect to such qualification and (C) for purposes of this Section 11.19(b), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
(iii) immediately after giving effect to such release or re-designation the Reporting Entity shall be in compliance, on a Pro Forma Basis, with the provisions of Section 7.09,
(iv) no Default shall have occurred and be continuing (unless such Default relates solely to, as applicable, (i) an Unencumbered Pool Property owned or leased, directly or indirectly, by such Subsidiary Guarantor that the Reporting Entity proposes to release from its obligations under the Guaranty or (ii) such Unencumbered Pool Property that the Reporting Entity proposes to re-designate as not an Unencumbered Pool Property) or would result under any other provision of this Agreement after giving effect to such release or re-designation (including as a result of the failure to satisfy the Minimum Unencumbered Property Condition), and
(v) the Reporting Entity shall have delivered to the Administrative Agent an Officer’s Certificate certifying that the conditions in clauses (ii) through (iv) above have been satisfied.
Upon the satisfaction of the conditions in clauses (i) through (v) above, each Unencumbered Pool Property that is owned or ground leased directly or indirectly by a Subsidiary Guarantor that is the subject of a release pursuant to this Section 11.19(b) will immediately upon such release cease to be an Unencumbered Pool Property.
The Administrative Agent will (at the sole cost of the Borrower) following receipt of such Release Notice and Officer’s Certificate, and each of the Lenders and the L/C Issuer irrevocably authorizes the Administrative Agent to, execute and deliver such documents as the Reporting Entity or such Subsidiary Guarantor may reasonably request as is necessary or desirable to evidence the release of such Subsidiary Guarantor from its obligations under the Guaranty or the re-designation of such Property to no longer be an Unencumbered Pool Property, as applicable, which documents shall be reasonably satisfactory to the Administrative Agent.
(c) Release and re-designation following the Investment Grade Release. At the request of the Parent, the Administrative Agent shall release any Subsidiary Guarantor from its obligations under the Guaranty to the extent not already released under Section 11.19(a), or re-designate any Unencumbered Pool Property such that it is no longer an Unencumbered Pool Property, subject to satisfaction of the following conditions:
(i) the Parent shall have delivered to the Administrative Agent, at least five (5) Business Days prior to the date of the proposed release or re-designation (or such shorter period of time as agreed to by the Administrative Agent in writing), a Release Notice (which notice shall identify the Subsidiary or Property, as applicable, to which it applies, the proposed date of the release or re-designation, as applicable, and specify, in the case of a release of a Subsidiary Guarantor from its obligations under the Guaranty, whether the Subsidiary Guarantor to which such notice relates will be a borrower or guarantor of, or otherwise have payment obligations in respect of, any Unsecured Indebtedness (other than, in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions) after giving effect to the requested release),
(ii) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the effective date of such release or re-designation and, both before and after giving effect to such release or re-designation, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (B) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (A)) after giving effect to such qualification and (C) for purposes of this Section 11.19(c), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
(iii) immediately after giving effect to such release or re-designation, the Reporting Entity shall be in compliance, on a Pro Forma Basis, with the provisions of Section 7.09,
(iv) no Default shall have occurred and be continuing (unless such Default relates solely to, as applicable, (A) an Unencumbered Pool Property owned or leased, directly or indirectly, by such Subsidiary Guarantor that the Parent proposes to release from its obligations under the Guaranty or (B) such Unencumbered Pool Property that the Parent proposes to re-designate as not an Unencumbered Pool Property) or would result under any other provision of this Agreement after giving effect to such release or re-designation (including as a result of the failure to satisfy the Minimum Unencumbered Property Condition), and
(v) the Parent shall have delivered to the Administrative Agent an Officer’s Certificate certifying that the conditions in clauses (ii) through (iv) above have been satisfied.
For the avoidance of doubt, if a Subsidiary Guarantor is a borrower or guarantor of, or otherwise has a payment obligation in respect of, any Indebtedness for borrowed money (other than in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions) at the time that it is released from its obligations under the Guaranty, each Unencumbered Pool Property that is owned or ground leased directly or indirectly by such Subsidiary Guarantor that is the subject of a release pursuant to this Section 11.19(c) will immediately upon such release cease to be an Unencumbered Pool Property.
The Administrative Agent will (at the sole cost of the Borrower) following receipt of such Release Notice and Officer’s Certificate, and each of the Lenders and each of the L/C Issuers irrevocably authorizes the Administrative Agent to, execute and deliver such documents as the Parent or such Subsidiary Guarantor may reasonably request as is necessary or desirable to evidence the release of such Subsidiary Guarantor from its obligations under the Guaranty or the re-designation of such Property to no longer be an Unencumbered Pool Property, as applicable, which documents shall be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall promptly notify the Lenders of any such release hereunder, and this Agreement and each other Loan Document shall be deemed amended to delete the name of any Subsidiary Guarantor released pursuant to this Section 11.19. For the avoidance of doubt, (i) any Wholly Owned Subsidiary (including any Wholly Owned Subsidiary that is released pursuant to this Section 11.19) that becomes a borrower or guarantor of, or otherwise incurs a payment obligation in respect of, Unsecured Indebtedness (other than in the case of an Indirect Owner, unsecured Guarantees of Nonrecourse Indebtedness of a Subsidiary thereof for which recourse to such Indirect Owner is contractually limited to liability for Customary Recourse Exceptions) shall be required, in accordance with Section 6.12(b), to become a Subsidiary Guarantor within three (3) Business Days of becoming a borrower or guarantor of, or otherwise incurring a payment obligation in respect of, Unsecured Indebtedness and remain a Subsidiary Guarantor for so long as such Wholly Owned Subsidiary is so obligated and (ii) after becoming a Guarantor in accordance with Section 6.12(c), in no event shall the Parent be released from its obligations under the Guaranty.
11.20 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[signature pages immediately follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
BORROWER:
FOREST CITY ENTERPRISES, INC.
By: /s/ Robert G. O’Brien
| |
Title: | Executive Vice President and Chief Financial Officer |
EACH OF THE GUARANTORS LISTED ON ANNEX A HERETO:
By: /s/ Robert G. O’Brien
| |
Title: | Authorized Signatory |
[Signature Page to Credit Agreement]
Annex A
Subsidiary Guarantors
|
|
Forest City Rental Properties Corporation |
Forest City Residential Group, Inc. |
Forest City Equity Services, Inc. |
Ballston Office Center, LLC |
Chapel Hill Apartments, Ltd. |
FC Stratford TOD, LLC |
National Grand Lowry Lofts Associates LP |
National Grand Lowry Lofts Partners GP |
FC Grand Lowry, Inc. |
FC Grand Lowry of Ohio, Inc. |
FC Cortez Hill Associates, L.P. |
FC Cortez Hill, Inc. |
Forest City Pierrepont Associates |
Forest City Pierrepont, Inc. |
FC New Kera, LLC |
Kera Limited Partnership |
Forest City Master Associates III, LLC |
Ratner-Kessler Realty Inc. |
Master III FC/BCR Holdings, Inc. |
Forest City Commercial Holdings, Inc. |
Harlem Center Office, LLC |
FC Harlem Center Office, LLC |
FC Harlem Office, Inc. |
Stapleton North Town, LLC |
WBA Woodlake, L.L.C. |
RRG Jay Office, Inc. |
330 Jay Office Associates |
Forest City Jay Street Associates, L.P. |
FC B.U.G., LLC |
Forest City B.U.G. Building, Inc. |
RRG B.U.G. Associates L.P. |
RRG B.U.G., Inc. |
Forest City S.I.A.C. Building, Inc. |
Forest City Flatbush, Inc. |
F.C. Member, Inc. |
Forest City Fulton Street Building, Inc. |
Forest City Tech Place, Inc. |
Forest City Bluffside Corporation |
Cleveland/NY Residential, LLC |
Forest City N.Y., Inc. |
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Oltiana M. Pappas
Name: Oltiana M. Pappas
Title: Senior Vice President
[Signature Page to Credit Agreement]
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender
By: /s/ Oltiana M. Pappas
Name: Oltiana M. Pappas
Title: Senior Vice President
[Signature Page to Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION, as a Lender, L/C Issuer and Swing Line Lender
By: /s/ John E. Wilgus II
Name: John E. Wilgus II
Title: Senior Vice President
[Signature Page to Credit Agreement]
THE BANK OF NEW YORK MELLON, as a Lender
By: /s/ Helga Blum
Name: Helga Blum
Title: Managing Director
[Signature Page to Credit Agreement]
CITIBANK, N.A., as a Lender
By: /s/ Michael Chlopak
Name: Michael Chlopak
Title: Vice President
[Signature Page to Credit Agreement]
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Sara Jo Smith
Name: Sara Jo Smith
Title: Assistant Vice President
[Signature Page to Credit Agreement]
THE HUNTINGTON NATIONAL BANK, as a Lender
By: /s/ Florentina Djulvezan
Name: Florentina Djulvezan
Title: Assistant Vice President
[Signature Page to Credit Agreement]
Schedule 1.01 – Existing Letters of Credit
|
| | | | | | |
LC Number | | Bank Held | | Term End | | Amount |
18114457 | | PNC | | 2/21/2016 | | 1,775,018.16 |
18114770 | | PNC | | 2/21/2016 | | 31,469,844.00 |
18115305 | | PNC | | 2/21/2016 | | 3,597,217.70 |
18118029 | | PNC | | 2/21/2016 | | 6,000,000.00 |
18122228 | | PNC | | 2/21/2016 | | 2,677,569.36 |
S308369 | | Key | | 2/21/2016 | | 269,831.00 |
S308567 | | Key | | 2/21/2016 | | 210,000.00 |
S311646 | | Key | | 2/21/2016 | | 450,000.00 |
S311917 | | Key | | 2/21/2016 | | 2,250,000.00 |
S312793 | | Key | | 2/21/2016 | | 340,000.00 |
S313097 | | Key | | 2/21/2016 | | 2,495,261.00 |
S313632 | | Key | | 2/21/2016 | | 4,000,000.00 |
S320833 | | Key | | 2/3/2016 | | 983,571.00 |
S321717 | | Key | | 2/21/2016 | | 32,166.00 |
S321793 | | Key | | 2/21/2016 | | 40,000.00 |
S322472 | | Key | | 2/21/2016 | | 500,000.00 |
S322683 | | Key | | 2/21/2016 | | 1,075,000.00 |
S322703 | | Key | | 2/7/2016 | | 610,000.00 |
S323287 | | Key | | 2/21/2016 | | 1,750,000.00 |
S323423 | | Key | | 2/21/2016 | | 100,000.00 |
S323727 | | Key | | 2/21/2016 | | 250,000.00 |
| | | | | | |
| | | | TOTAL: | | 60,875,478.22 |
Schedule 2.01 – Commitments and Applicable Percentages
|
| | | | | |
Lender | Commitment | Applicable Percentage |
Bank of America, N.A. |
| $135,000,000.00 |
| 27.000000000 | % |
PNC Bank, National Association |
| $135,000,000.00 |
| 27.000000000 | % |
The Bank of New York Mellon |
| $60,000,000.00 |
| 12.000000000 | % |
Citibank, N.A. |
| $60,000,000.00 |
| 12.000000000 | % |
KeyBank National Association |
| $60,000,000.00 |
| 12.000000000 | % |
The Huntington National Bank |
| $50,000,000.00 |
| 10.000000000 | % |
| | |
Total |
| $500,000,000.00 |
| 100.000000000 | % |
Schedule 5.13 – Subsidiaries; Jurisdiction of Incorporation/Organization
|
| | | | |
Subsidiary Legal Name | | Jurisdiction of Organization | | Type of Organization |
| | | | |
1100 Wilshire Associates, LLC | | DE | | Limited Liability Company |
1100 Wilshire Partners, LLC | | CA | | Limited Liability Company |
1255 South Prairie Private Commercial, LLC | | IL | | Limited Liability Company |
1255 South Prairie Private, LLC | | IL | | Limited Liability Company |
1313 Company, L.L.C. | | IL | | Limited Liability Company |
1455 South Michigan Air Rights, L.L.C. | | IL | | Limited Liability Company |
1600 Indiana Commercial, L.L.C. | | IL | | Limited Liability Company |
1600 Museum Park LLC | | IL | | Limited Liability Company |
272 Elm Street, LLC | | DE | | Limited Liability Company |
300 Mass Ave West SPE, LLC | | DE | | Limited Liability Company |
330 JAY OFFICE ASSOCIATES, LLC | | NY | | Limited Liability Company |
42 HOTEL MEMBER LLC | | NY | | Limited Liability Company |
625 Fulton Associates | | NY | | General Partnership |
625 FULTON ASSOCIATES, LLC | | NY | | Limited Liability Company |
625 Fulton Mezzanine, LLC | | DE | | Limited Liability Company |
80 DeKalb TC, LLC | | NY | | Limited Liability Company |
80 VGL, LLC | | CA | | Limited Liability Company |
820 Mission Street, Inc. | | CA | | Corporation |
855 N. Wolfe Street, LLC | | DE | | Limited Liability Company |
ACG Federal Reserve LLC | | OH | | Limited Liability Company |
AFA PROJECT SUBLESSEE, LLC | | DE | | Limited Liability Company |
Air Force Academy Military Communities, LLC | | DE | | Limited Liability Company |
ALF FCLG BAL GRA HARBOR, LLC | | NC | | Limited Liability Company |
Antelope Valley Mall Developers, Ltd. | | CA | | Limited Partnership |
Antelope Valley Mall, LLC | | DE | | Limited Liability Company |
Artus Inc. | | OH | | Corporation |
ASCOT BROKERAGE LTD | | NY | | Corporation |
Ashtabula Towers, Ltd. | | OH | | Limited Partnership |
Aster Conservatory Green Apartments, LLC | | DE | | Limited Liability Company |
Aster Conservatory Green Master Tenant, LLC | | DE | | Limited Liability Company |
Atlantic Center Fort Greene Associates, L. P. | | NY | | Limited Partnership |
Atlantic Center Fort Greene, Inc. | | NY | | Corporation |
ATLANTIC RAIL YARDS II, LLC | | NY | | Limited Liability Company |
|
| | | | |
ATLANTIC RAIL YARDS, LLC | | NY | | Limited Liability Company |
Atlantic Yards B2 Owner, LLC | | DE | | Limited Liability Company |
ATLANTIC YARDS DEVELOPMENT COMPANY, LLC | | DE | | Limited Liability Company |
ATLANTIC YARDS DEVELOPMENT SUB A, LLC | | NY | | Limited Liability Company |
ATLANTIC YARDS DEVELOPMENT SUB B, LLC | | NY | | Limited Liability Company |
ATLANTIC YARDS NOMINEE SUB B, LLC | | NY | | Limited Liability Company |
ATLANTIC YARDS VENTURE, LLC | | DE | | Limited Liability Company |
Autumn Ridge Associates, LLC | | MI | | Limited Liability Company |
AY 35-37 SIXTH, LLC | | NY | | Limited Liability Company |
AY 473 DEAN, LLC | | NY | | Limited Liability Company |
AY PHASE II DEVELOPMENT COMPANY, LLC | | DE | | Limited Liability Company |
AY PHASE II MEZZANINE, LLC | | DE | | Limited Liability Company |
AY Phase III Mezzanine, LLC | | DE | | Limited Liability Company |
AYDC INTERIM DEVELOPER, LLC | | DE | | Limited Liability Company |
AYDC Regional Development Company, LLC | | DE | | Limited Liability Company |
B2 HOLD CO, LLC | | DE | | Limited Liability Company |
Ballston Acquisition Company, LLC | | DE | | Limited Liability Company |
Ballston Common Associates, L.P. | | DE | | Limited Partnership |
Ballston Development Corporation | | OH | | Corporation |
Ballston Office Center, LLC | | DE | | Limited Liability Company |
Ballston Security Corporation | | VA | | Corporation |
Bayside Village Associates, L.P. | | CA | | Limited Partnership |
Bell Court, LLC | | OH | | Limited Liability Company |
Big Creek Apartments I, L.L.C. | | OH | | Limited Liability Company |
Big Creek Apartments II, L.L.C. | | OH | | Limited Liability Company |
Big Creek Apartments Ltd. | | OH | | Limited Liability Company |
Block 2 GP1, L.L.C. | | IL | | Limited Liability Company |
Block 2 GP2, L.L.C. | | IL | | Limited Liability Company |
Bluffside Development Company | | CA | | General Partnership |
Botanica II, LLC | | CO | | Limited Liability Company |
Boulevard Mall SPE, LLC | | DE | | Limited Liability Company |
Boulevard Towers LLC | | NY | | Limited Liability Company |
Bowin Place Associates Limited Dividend Housing Association Limited Partnership | | MI | | Limited Partnership |
BPC Henderson, LLC | | NV | | Limited Liability Company |
BR NORTHERN CORP. | | NY | | Corporation |
BR QUEENSWOOD ASSOCIATES, L.P. | | DE | | Limited Partnership |
BR QUEENSWOOD MANAGEMENT INC. | | NY | | Corporation |
Bridge Investment Fund, L.P. | | DE | | Limited Partnership |
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Broadstone Outlots, LLC | | CA | | Limited Liability Company |
BROOKLYN ARENA HOLDING COMPANY, LLC | | DE | | Limited Liability Company |
BROOKLYN ARENA, LLC | | DE | | Limited Liability Company |
BROOKLYN BASKETBALL HOLDINGS, LLC | | DE | | Limited Liability Company |
BROOKLYN BASKETBALL, LLC | | DE | | Limited Liability Company |
BROOKLYN EVENTS CENTER, LLC | | DE | | Limited Liability Company |
Brooklyn Nets, LLC | | NJ | | Limited Liability Company |
Brookview Place Associates, Ltd. | | OH | | Limited Partnership |
Buckeye Towers, Ltd. | | OH | | Limited Partnership |
Burton Elderly Limited Dividend Housing Association Limited Partnership | | MI | | Limited Partnership |
BV Management | | CA | | General Partnership |
California Condominiums, Inc. | | CA | | Corporation |
Cambium Corporation | | OH | | Corporation |
Cambridge Tower Associates, LLC | | MI | | Limited Liability Company |
Camelot Apartments, LLC | | OH | | Limited Liability Company |
Canton Centre Mall Limited Partnership | | OH | | Limited Partnership |
Canton L. D. Corp. | | OH | | Corporation |
Canton Towers, Ltd. | | OH | | Limited Partnership |
Capper Senior I GP, LLC | | DC | | Limited Liability Company |
Capper Senior I Limited Partnership | | DC | | Limited Partnership |
Capper Senior II GP, LLC | | DC | | Limited Liability Company |
Capper Senior II Limited Partnership | | DC | | Limited Partnership |
Capper/Carrollsburg Venture, LLC | | DC | | Limited Liability Company |
CARSAN ACQUISITIONS 1, LLC | | OH | | Limited Liability Company |
Carter Peninsula, Inc. | | OH | | Corporation |
Cedarplace Associates Limited Partnership | | MI | | Limited Partnership |
Center Courtland, Inc. | | OH | | Corporation |
Central Station Development Corporation | | IL | | Corporation |
Central Station IV, L.L.C. | | IL | | Limited Liability Company |
Central Station, L.L.C. | | IL | | Limited Liability Company |
Chagrin-Beachwood Offices, Inc. | | OH | | Corporation |
Chancellor Park Companion Services, LLC | | PA | | Limited Liability Company |
Chancellor Park Limited Partnership | | PA | | Limited Partnership |
Chapel Hill Apartments, Ltd. | | OH | | Limited Liability Company |
Chapmanville Towers Limited Partnership | | WV | | Limited Partnership |
Charleston Town Center Company, Limited Partnership | | WV | | Limited Partnership |
Charleston Town Center Member, LLC | | DE | | Limited Liability Company |
Charleston Town Center Parking, Limited Partnership | | WV | | Limited Partnership |
Charleston Town Center SPE, LLC | | DE | | Limited Liability Company |
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Chestnut Lake Apartments Limited Partnership | | OH | | Limited Partnership |
Chestnut Lake, Inc. | | OH | | Corporation |
Chestnut Plaza, Ltd. | | OH | | Limited Liability Company |
Chinese-American Gateway, LLC | | IL | | Limited Liability Company |
Clarkwood Apartments Ltd. | | OH | | Limited Liability Company |
Cleveland Civic Vision Housing Fund, LLC | | OH | | Limited Liability Company |
Cleveland Development Partnership II, L.P. | | DE | | Limited Partnership |
Cleveland New Markets Investment Fund, LLC | | OH | | Limited Liability Company |
Cleveland/NY Residential, LLC | | NY | | Limited Liability Company |
Cobblestone Court Apartments I, LLC | | OH | | Limited Liability Company |
Cobblestone Court Apartments, LLC | | OH | | Limited Liability Company |
Collinwood Bioenergy, LLC | | OH | | Limited Liability Company |
Colony Place, LLC | | OH | | Limited Liability Company |
Commerce Court Holding LLC | | PA | | Limited Liability Company |
Commerce Court LLC | | PA | | Limited Liability Company |
Commons Associates | | NY | | General Partnership |
Connellsville Associates | | PA | | Limited Partnership |
Cooperatie FC Co-op NL U.A. | | NL | | Corporation |
Coraopolis Towers | | PA | | Limited Partnership |
Coshocton L. D. Corp. | | OH | | Corporation |
CS 1600 Museum Park, LLC | | IL | | Limited Liability Company |
CS Eastgate Model, L.L.C. | | IL | | Limited Liability Company |
CS GP2, L.L.C. | | IL | | Limited Liability Company |
CS Parcel C Land, L.L.C. | | IL | | Limited Liability Company |
CS Parcel C Phase 2, L.L.C. | | IL | | Limited Liability Company |
CTNG, LLC | | OH | | Limited Liability Company |
Deer Run Apartments Limited | | OH | | Limited Liability Company |
Deer Run Investors, LLC | | OH | | Limited Liability Company |
DJBIFC No. 2, LLC | | TX | | Limited Liability Company |
DJBFC No. 2, LP | | TX | | Limited Partnership |
Donora Towers | | PA | | Limited Partnership |
Douglas Towers, Ltd. | | KY | | Limited Partnership |
Duffield Street Housing Co, Inc. | | NY | | Corporation |
East Baltimore L-1 Building, LLC | | DE | | Limited Liability Company |
EB Denver Power Center, LLC | | CO | | Limited Liability Company |
Emporium Development, L.L.C. | | DE | | Limited Liability Company |
Emporium Mall LLC | | DE | | Limited Liability Company |
Enterprise Operating Co., LLC | | OH | | Limited Liability Company |
Enterprise Place, LLC | | DE | | Limited Liability Company |
F. C. Bayside Management, Inc. | | CA | | Corporation |
F. C. Billboard, Inc. | | PA | | Corporation |
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F. C. Burton Corp. | | OH | | Corporation |
F. C. Canton Centre, Inc. | | OH | | Corporation |
F. C. Harris Pavilion Apartments Limited Partnership | | IL | | Limited Partnership |
F. C. Laurels Limited Partnership | | IL | | Limited Partnership |
F. C. Orange, Inc. | | CA | | Corporation |
F. C. Parmatown Apartments, Inc. | | OH | | Corporation |
F. C. Pavilion, L.L.C. | | OH | | Limited Liability Company |
F. C. Regency Club Limited Partnership | | NJ | | Limited Partnership |
F. C. Rolling Acres, Inc. | | OH | | Corporation |
F. C. Southridge Corp. | | OH | | Corporation |
F. C. Village, Inc. | | OH | | Corporation |
F. C. White Flint, Inc. | | MD | | Corporation |
F.C. Boulevard Towers, Inc. | | NY | | Corporation |
F.C. Drake Associates, L.P. | | PA | | Limited Partnership |
F.C. Drake, Inc. | | PA | | Corporation |
F.C. Ember, Inc. | | TN | | Corporation |
F.C. Fireland, Inc. | | OH | | Corporation |
F.C. Hamptons Associates, L. P. | | VA | | Limited Partnership |
F.C. Henderson I, Inc. | | NV | | Corporation |
F.C. Landings, L.P. | | TN | | Limited Partnership |
F.C. Member, Inc. | | NY | | Corporation |
F.C. MIDTOWN, LLC | | OH | | Limited Liability Company |
F.C. Museum Towers, Inc. | | PA | | Corporation |
F.C. Orange Associates, LLC | | CA | | Limited Liability Company |
F.C. Parmatown Associates, L.P. | | OH | | Limited Partnership |
F.C. Philip Morris, Inc. | | VA | | Corporation |
F.C. Philip Morris, L.P. | | VA | | Limited Partnership |
F.C. Plainview Associates, L.P. | | NY | | Limited Partnership |
F.C. Short Pump Land Investment, Inc. | | VA | | Corporation |
F.C. Stonecrest Land Investment, Inc. | | GA | | Corporation |
F.C. Stonecrest Mall, Inc. | | GA | | Corporation |
F.C. Temecula, Inc. | | CA | | Corporation |
F.C. Tobacco Row Bonds L.P. | | OH | | Limited Partnership |
F.C. Tobacco Row Bonds, Inc. | | OH | | Corporation |
F.C. Tobacco Row, Inc. | | VA | | Corporation |
F.C. Vineyards, Inc. | | OH | | Corporation |
F.C. Webster, LLC | | OH | | Limited Liability Company |
F.C. Westland, LLC | | OH | | Limited Liability Company |
F.C.E. Title Co. | | OH | | Corporation |
FC - DB, LLC | | HI | | Limited Liability Company |
FC 100 Landsdowne Street, LLC | | MA | | Limited Liability Company |
FC 100 Landsdowne, Inc. | | MA | | Corporation |
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FC 1100 Wilshire, LLC | | CA | | Limited Liability Company |
FC 1212 Member, LLC | | DE | | Limited Liability Company |
FC 1212 QALICB, LLC | | DE | | Limited Liability Company |
FC 1212 Retail, LLC | | DE | | Limited Liability Company |
FC 1212 Workforce, LLC | | DE | | Limited Liability Company |
FC 1212, LLC | | DE | | Limited Liability Company |
FC 1331 Member, LLC | | DE | | Limited Liability Company |
FC 1331 Workforce, LLC | | DE | | Limited Liability Company |
FC 1331, LLC | | DE | | Limited Liability Company |
FC 1346, LLC | | DE | | Limited Liability Company |
FC 160, LLC | | DC | | Limited Liability Company |
FC 1812 Ashland Leverage Lender, LLC | | DE | | Limited Liability Company |
FC 1812 Ashland, LLC | | DE | | Limited Liability Company |
FC 202 LLC | | DC | | Limited Liability Company |
FC 2175 Market, LP | | DE | | Limited Partnership |
FC 2175 Workforce, LP | | CA | | Limited Partnership |
FC 23 Sidney Street, LLC | | MA | | Limited Liability Company |
FC 23 Sidney, Inc. | | MA | | Corporation |
FC 29th Avenue Town Center, LLC | | CO | | Limited Liability Company |
FC 31st Street, Inc. | | PA | | Corporation |
FC 35 Landsdowne, Inc. | | MA | | Corporation |
FC 3700 McKinney Owner, LLC | | DE | | Limited Liability Company |
FC 385 Water, LLC | | DE | | Limited Liability Company |
FC 40 Landsdowne, Inc. | | MA | | Corporation |
FC 42 HOTEL LLC | | DE | | Limited Liability Company |
FC 42 HOTEL MEMBER LLC | | NY | | Limited Liability Company |
FC 42nd STREET ASSOCIATES, L.P. | | NY | | Limited Partnership |
FC 45/75 Sidney, Inc. | | MA | | Corporation |
FC 48th STREET ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC 4900 Oakton, LLC | | IL | | Limited Liability Company |
FC 4901 Searle Member, LLC | | DE | | Limited Liability Company |
FC 4901 Searle, LLC | | DE | | Limited Liability Company |
FC 4930 Oakton LLC | | IL | | Limited Liability Company |
FC 5M, LLC | | DE | | Limited Liability Company |
FC 64 Sidney, Inc. | | MA | | Corporation |
FC 65/80 Landsdowne, Inc | | MA | | Corporation |
FC 8 South, Inc. | | NY | | Corporation |
FC 8 Spruce Holdings, LLC | | DE | | Limited Liability Company |
FC 8 Spruce Mezzanine, LLC | | DE | | Limited Liability Company |
FC 80 DEKALB ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC 80 DeKalb TC, LLC | | NY | | Limited Liability Company |
FC 88 Sidney, Inc. | | MA | | Corporation |
FC 91 Sidney Street, LLC | | DE | | Limited Liability Company |
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FC 91 Sidney, Inc. | | MA | | Corporation |
FC ACQUISITION ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC AIR RIGHTS, LLC | | NY | | Limited Liability Company |
FC Ashton Mill Lessor, LLC | | RI | | Limited Liability Company |
FC Ashton Mill Master Lessee, LLC | | RI | | Limited Liability Company |
FC Ashton Mill Member, LLC | | RI | | Limited Liability Company |
FC Ashton Mill Sub Lessee, LLC | | RI | | Limited Liability Company |
FC Ashton Mill, LLC | | RI | | Limited Liability Company |
FC ATLANTIC YARDS B2, LLC | | DE | | Limited Liability Company |
FC ATLANTIC YARDS, LLC | | DE | | Limited Liability Company |
FC AY B2 PRIME, LLC | | DE | | Limited Liability Company |
FC B.U.G., LLC | | DE | | Limited Liability Company |
FC Bal Gra, LLC | | NC | | Limited Liability Company |
FC Ballpark, LLC | | DE | | Limited Liability Company |
FC Ballston Common, LLC | | DE | | Limited Liability Company |
FC Ballston Member, LLC | | DE | | Limited Liability Company |
FC Ballston Office Leasing, LLC | | DE | | Limited Liability Company |
FC Basketball, Inc. | | NY | | Corporation |
FC BATTERY PARK ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC Battery Park NNN Leasehold, LLC | | DE | | Limited Liability Company |
FC Battery Park, Inc. | | NY | | Corporation |
FC Beekman Associates, LLC | | NY | | Limited Liability Company |
FC BEEKMAN HOLDINGS, LLC | | NY | | Limited Liability Company |
FC BEEKMAN MEZZANINE, LLC | | DE | | Limited Liability Company |
FC BEEKMAN SWAP, LLC | | DE | | Limited Liability Company |
FC Bell Associates L.P. | | PA | | Limited Partnership |
FC Bell, Inc. | | PA | | Corporation |
FC Bellevue Associates Limited Partnership | | WA | | Limited Partnership |
FC Bernstein Business Trust | | MD | | Trust |
FC Bessemer Court, LLC | | DE | | Limited Liability Company |
FC Blossom Plaza Workforce, LP | | CA | | Limited Partnership |
FC BPC NNN Leasehold, LLC | | DE | | Limited Liability Company |
FC Boilermaker Manager, LLC | | DE | | Limited Liability Company |
FC Boilermaker Master Tenant, LLC | | DE | | Limited Liability Company |
FC Boilermaker, LLC | | DE | | Limited Liability Company |
FC Broadway and Hill, LLC | | DE | | Limited Liability Company |
FC Brookpark Place LLC | | WV | | Limited Liability Company |
FC Bruckner Associates, L. P. | | NY | | Limited Partnership |
FC Business Venture Trust | | MD | | Trust |
FC CACTUS B2, LLC | | DE | | Limited Liability Company |
FC Cactus MT GP SPE, LLC | | DE | | Limited Liability Company |
FC Cactus MT II GP SPE, LLC | | DE | | Limited Liability Company |
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FC Cactus Residential Development Blossom GP, LLC | | DE | | Limited Liability Company |
FC Cactus Residential Development Fund NYC #1, LLC | | DE | | Limited Liability Company |
FC Cactus Residential Development Fund, LLC | | DE | | Limited Liability Company |
FC Cactus Residential Development GP, LLC | | DE | | Limited Liability Company |
FC Cameron Kinney, LLC | | VA | | Limited Liability Company |
FC Capper Residential I, LLC | | DC | | Limited Liability Company |
FC Capper Senior I, LLC | | DC | | Limited Liability Company |
FC Capper Senior II, LLC | | DC | | Limited Liability Company |
FC CASTLE CENTER ASSOCIATES II, LLC | | NY | | Limited Liability Company |
FC CDE Member, LLC | | NY | | Limited Liability Company |
FC Central Station Bond Co., LLC | | OH | | Limited Liability Company |
FC Central Station Properties, LLC | | IL | | Limited Liability Company |
FC Central Station Residential, LLC | | IL | | Limited Liability Company |
FC Central Station Senior, LLC | | IL | | Limited Liability Company |
FC Chapel Hill Leasing, LLC | | OH | | Limited Liability Company |
FC Charleston Town Center Operator, LLC | | DE | | Limited Liability Company |
FC Cherry Tree SPE, LLC | | DE | | Limited Liability Company |
FC Cherrywood Deferred, LLC | | DE | | Limited Liability Company |
FC Chestnut Lake SPE, LLC | | DE | | Limited Liability Company |
FC Chestnut, Inc. | | OH | | Corporation |
FC Cobblestone Court, LLC | | OH | | Limited Liability Company |
FC COLUMBIA PARK ASSOCIATES, LLC | | NJ | | Limited Liability Company |
FC COLUMBIA PARK ASSOCIATES, LLC | | NJ | | Limited Liability Company |
FC COLUMBIA PARK MEMBER, LLC | | NY | | Limited Liability Company |
FC Commerce Court, LLC | | DE | | Limited Liability Company |
FC Consolidated Lessor, LLC | | VA | | Limited Liability Company |
FC Consolidated Master Lessee, LLC | | VA | | Limited Liability Company |
FC Consolidated Member, LLC | | VA | | Limited Liability Company |
FC Consolidated Sub Lessee, LLC | | VA | | Limited Liability Company |
FC Consolidated, LLC | | VA | | Limited Liability Company |
FC Construction Services, LLC | | DE | | Limited Liability Company |
FC Continental Complex, L.P. | | TX | | Limited Partnership |
FC Continental GP, Inc. | | TX | | Corporation |
FC Continental Landlord, LLC | | TX | | Limited Liability Company |
FC Continental Manager, LLC | | TX | | Limited Liability Company |
FC Continental Master Tenant, LLC | | TX | | Limited Liability Company |
FC Coraopolis Towers LLC | | PA | | Limited Liability Company |
FC Cortez Hill Associates, L.P. | | CA | | Limited Partnership |
FC Cortez Hill, Inc. | | CA | | Corporation |
FC COURT STREET ASSOCIATES, LLC | | NY | | Limited Liability Company |
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FC Covington Manager, LLC | | NM | | Limited Liability Company |
FC Covington MdelS Manager, LLC | | NM | | Limited Liability Company |
FC Covington Park Building 2 Manager, LLC | | NM | | Limited Liability Company |
FC Covington Park Building 3 Manager, LLC | | NM | | Limited Liability Company |
FC Covington Towncenter Building 1 Manager, LLC | | NM | | Limited Liability Company |
FC Dallas GP, LLC | | TX | | Limited Liability Company |
FC Dallas TIF, LLC | | DE | | Limited Liability Company |
FC DEKALB MEZZANINE, LLC | | DE | | Limited Liability Company |
FC Denver Power Center, LLC | | CO | | Limited Liability Company |
FC Donora Towers LLC | | PA | | Limited Liability Company |
FC Duncan Street, LLC | | DE | | Limited Liability Company |
FC Eagle Bend, LLC | | CO | | Limited Liability Company |
FC East Baltimore, Inc. | | MD | | Corporation |
FC EAST RIVER ASSOCIATES II, LLC | | NY | | Limited Liability Company |
FC EAST RIVER ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC EAST RIVER FUND MEMBER II, LLC | | NY | | Limited Liability Company |
FC EAST RIVER FUND MEMBER, LLC | | NY | | Limited Liability Company |
FC Eaton Ridge SPE, LLC | | DE | | Limited Liability Company |
FC Echo/Barr SPE, LLC | | OH | | Limited Liability Company |
FC Edgeworth Lessor, LLC | | VA | | Limited Liability Company |
FC Edgeworth Master Lessee, LLC | | VA | | Limited Liability Company |
FC Edgeworth Sub Lessee, LLC | | VA | | Limited Liability Company |
FC Edgeworth, LLC | | VA | | Limited Liability Company |
FC EIGHTH AVE., LLC | | DE | | Limited Liability Company |
FC ELY ASSOCIATES, L.P. | | NY | | Limited Partnership |
FC ENERGY SERVICES COMPANY, LLC | | NY | | Limited Liability Company |
FC Facilitator Holding, LLC | | OH | | Limited Liability Company |
FC Facilitator, LLC | | OH | | Limited Liability Company |
FC Farmington Place LLC | | MI | | Limited Liability Company |
FC FLATBUSH ASSOCIATES II, LLC | | DE | | Limited Liability Company |
FC FLATBUSH ASSOCIATES, L.P. | | NY | | Limited Partnership |
FC Florida Senior Living Management, LLC | | FL | | Limited Liability Company |
FC FOLEY DEVELOPMENT, LLC | | NY | | Limited Liability Company |
FC FOLEY SQUARE ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC FOLEY, LLC | | NY | | Limited Liability Company |
FC FOREST AVENUE ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC Freight House Operating, LLC | | DE | | Limited Liability Company |
FC GOWANUS ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC Grand Lowry of Ohio, Inc. | | CO | | Corporation |
FC Grand Lowry, Inc. | | CO | | Corporation |
FC Hamel Mill Historic Master Tenant, LLC | | DE | | Limited Liability Company |
FC HANSON ASSOCIATES, LLC | | NY | | Limited Liability Company |
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FC HANSON OFFICE ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC HARLEM CENTER OFFICE, LLC | | NY | | Limited Liability Company |
FC HARLEM CENTER, LLC | | NY | | Limited Liability Company |
FC HARLEM OFFICE, INC. | | NY | | Corporation |
F-C Harris Silver Spring Limited Partnership | | MD | | Limited Partnership |
FC HAWAII CM, LLC f/k/a Jordan - CMD, LLC | | DE | | Limited Liability Company |
FC Hawaii HTC, LLC | | HI | | Limited Liability Company |
FC Hawaii Laiopua, LLC | | HI | | Limited Liability Company |
FC Hawaii, Inc. | | HI | | Corporation |
FC HCN 40 Holding, LLC | | DE | | Limited Liability Company |
FC HCN 88 Holding, LLC | | DE | | Limited Liability Company |
FC HCN University Park, LLC | | DE | | Limited Liability Company |
FC HH F/K/A FC Haverhill, LLC | | DE | | Limited Liability Company |
FC HHM Member, Inc. | | DE | | Corporation |
FC Horizon GC, LLC | | DE | | Limited Liability Company |
FC Independent Member, LLC | | DE | | Limited Liability Company |
FC International GP, LLC | | DE | | Limited Liability Company |
FC Jackson Square Apartments, LLC | | TX | | Limited Liability Company |
FC Jackson Square MM, LLC | | TX | | Limited Liability Company |
FC Kent Towers LLC | | OH | | Limited Liability Company |
FC LaDue Reserve, LLC | | OH | | Limited Liability Company |
FC Lehigh Valley Development, Inc. | | PA | | Corporation |
FC LH, Inc. | | OH | | Corporation |
FC Locke Street, LLC | | DE | | Limited Liability Company |
FC Lucky Strike Lessor, LLC | | VA | | Limited Liability Company |
FC Lucky Strike Master Lessee, LLC | | VA | | Limited Liability Company |
FC Lucky Strike, LLC | | VA | | Limited Liability Company |
FC Lumber Shed Manager, LLC | | DE | | Limited Liability Company |
FC Lumber Shed, LLC | | DE | | Limited Liability Company |
FC Manhattan, Inc. | | KS | | Corporation |
FC Mass Ave 300 Block West, LLC | | DE | | Limited Liability Company |
FC Mayfield Plaza, Inc. | | OH | | Corporation |
FC Merc Complex, L.P. | | TX | | Limited Partnership |
FC Merc Lessee Complex, LLC | | TX | | Limited Liability Company |
FC Merc Lessee Member, Inc. | | TX | | Corporation |
FC Mesa Inc. | | NM | | Corporation |
FC Metropolitan Lofts, Inc. | | CA | | Corporation |
FC Military Construction Manager, LLC | | DE | | Limited Liability Company |
FC MODULAR, LLC | | DE | | Limited Liability Company |
FC Moore Farm, LLC | | NC | | Limited Liability Company |
FC Mortgage Loan, LLC | | DE | | Limited Liability Company |
FC Nassau, LLC | | DE | | Limited Liability Company |
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FC New Carrollton, LLC | | DE | | Limited Liability Company |
FC New Flatbush, LLC | | NY | | Limited Liability Company |
FC NEW KERA, LLC | | NY | | Limited Liability Company |
FC NEW MARKETS, LLC | | NY | | Limited Liability Company |
FC New Tech, LLC | | NY | | Limited Liability Company |
FC Newport Landing SPE, LLC | | DE | | Limited Liability Company |
FC NL 2 C.V. | | NL | | Limited Partnership |
FC NORTHERN ASSOCIATES II, LLC | | DE | | Limited Liability Company |
FC Northern Associates, L.P. | | NY | | Limited Partnership |
FC Northern Boulevard, Inc. | | NY | | Corporation |
FC Northfield @ Stapleton, LLC | | CO | | Limited Liability Company |
FC Northwest, Inc. | | WA | | Corporation |
FC Oakland II, Inc. | | CA | | Corporation |
FC Oakland, Inc. | | CA | | Corporation |
FC Ohio HTC Investor, LLC | | DE | | Limited Liability Company |
FC Olmsted Farms, Inc. | | OH | | Corporation |
FC Orange Associates Member, LLC | | DE | | Limited Liability Company |
FC Orchard Town Center, Inc. | | CO | | Corporation |
FC Outlot Parcels, Inc. | | CA | | Corporation |
FC Outlots, Inc. | | CA | | Corporation |
FC PACIFIC ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC Pacific, Inc. | | NY | | Corporation |
FC PARKING EAST RIVER, LLC | | NY | | Limited Liability Company |
FC Parkwood Village, LLC | | DE | | Limited Liability Company |
FC Parma Land, LLC | | DE | | Limited Liability Company |
FC Pavilion Theatre, LLC | | CA | | Limited Liability Company |
FC Pier 70, LLC | | DE | | Limited Liability Company |
FC Pittsburgh, Inc. (fka Harrah's Pittsburgh Investment Company, Inc.) | | NV | | Corporation |
FC Plaza, LLC | | DE | | Limited Liability Company |
FC Plymouth Square Village, LLC | | MI | | Limited Liability Company |
FC Presidio PHSH Lessor, LLC | | CA | | Limited Liability Company |
FC PROSPER PARTNER, INC. | | TX | | Corporation |
FC QIC Antelope Valley Mall JV, LLC | | DE | | Limited Liability Company |
FC QIC Charleston Town Center JV, LLC | | DE | | Limited Liability Company |
FC QIC Galleria at Sunset JV, LLC | | DE | | Limited Liability Company |
FC QIC Promenade in Temecula JV, LLC | | DE | | Limited Liability Company |
FC QIC Short Pump Town Center JV, LLC | | DE | | Limited Liability Company |
FC QIC South Bay Galleria JV, LLC | | DE | | Limited Liability Company |
FC QUARTERMASTER ASSOCIATES II, L.P. | | NY | | Limited Partnership |
FC QUARTERMASTER ASSOCIATES III, L.P. | | NY | | Limited Partnership |
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FC Quartermaster Associates IV, L.P. | | NY | | Limited Partnership |
FC QUARTERMASTER ASSOCIATES, L.P. | | NY | | Limited Partnership |
FC Quebec Square, LLC | | CO | | Limited Liability Company |
FC QUEENS PLACE ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC Ranchstone Deferred, LLC | | DE | | Limited Liability Company |
FC Remediation SEFC, Inc. | | DC | | Corporation |
FC Richmond Associates, L.P. | | NY | | Limited Partnership |
FC Richmond I, LLC | | VA | | Limited Liability Company |
FC Richmond II, LLC | | VA | | Limited Liability Company |
FC RTC 20, LLC | | DE | | Limited Liability Company |
FC RTC 39, LLC | | DE | | Limited Liability Company |
FC San Juan Waterfront, LLC | | PR | | Limited Liability Company |
FC Senior I Member, LLC | | DC | | Limited Liability Company |
FC Senior I, LLC | | DC | | Limited Liability Company |
FC Simi, Inc. | | CA | | Corporation |
FC Skokie PQ, LLC | | DE | | Limited Liability Company |
FC Skokie SPE, LLC | | DE | | Limited Liability Company |
FC Skokie, LLC | | DE | | Limited Liability Company |
FC Skokie-Pavilion, LLC | | DE | | Limited Liability Company |
FC South Bay Galleria Operator, LLC | | DE | | Limited Liability Company |
FC South Bay Outparcel, LLC | | DE | | Limited Liability Company |
FC Springhill Commercial, Inc. | | OH | | Corporation |
FC Stamford II LLC | | CT | | Limited Liability Company |
FC Stapleton I, LLC | | CO | | Limited Liability Company |
FC Stapleton II, LLC | | CO | | Limited Liability Company |
FC Stapleton III, LLC | | CO | | Limited Liability Company |
FC Station Square Gaming, LLC | | DE | | Limited Liability Company |
FC Station Square, LLC | | DE | | Limited Liability Company |
FC STEINWAY STREET ASSOCIATES II, LLC | | NY | | Limited Liability Company |
FC Stratford Crossings LLC | | OH | | Limited Liability Company |
FC Stratford TOD, LLC | | DE | | Limited Liability Company |
FC Subway Lower Floors, LLC | | CA | | Limited Liability Company |
FC Subway Master Lessee, L.P. | | CA | | Limited Partnership |
FC Subway Terminal Lessor, L.P. | | CA | | Limited Partnership |
FC Subway, LLC | | CA | | Limited Liability Company |
FC Subway, LLC | | DE | | Limited Liability Company |
FC Surfside, Inc. | | OH | | Corporation |
FC Sustainable Collinwood, LLC | | DE | | Limited Liability Company |
FC Sustainable Resources Kona, LLC | | HI | | Limited Liability Company |
FC SUTTON LANDING LLC | | OH | | Limited Liability Company |
FC Sweetwater Manager, Inc. | | TX | | Corporation |
FC Sweetwater Partner, LLC | | TX | | Limited Liability Company |
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FC Twinsburg Residential II, LLC | | OH | | Limited Liability Company |
FC Twinsburg Residential, Inc. | | OH | | Corporation |
FC University Park II, Inc. | | MA | | Corporation |
FC UPenn/31st Street, Inc. | | OH | | Corporation |
FC Uptown Oakland Swap, LLC | | DE | | Limited Liability Company |
FC Uptown Park, LLC | | CA | | Limited Liability Company |
FC Vegas 20, LLC | | NV | | Limited Liability Company |
FC Village Square LLC | | NY | | Limited Liability Company |
FC Wadsworth, Inc. | | OH | | Corporation |
FC Waring Associates, L.P. | | NY | | Limited Partnership |
FC Washington-Lincoln Member, LLC | | OH | | Limited Liability Company |
FC Washington-Lincoln, LLC | | OH | | Limited Liability Company |
FC Waterfront Member, LLC | | DE | | Limited Liability Company |
FC Waypointe Assoicates, LLC | | NY | | Limited Liability Company |
FC Westminster Residential, Inc. | | CO | | Corporation |
FC Wheatfield, Inc. | | NY | | Corporation |
FC Wilshire, Inc. | | CA | | Corporation |
FC Winchester Lofts Manager, Inc. | | DE | | Corporation |
FC Winchester Lofts Master Tenant, LLC | | DE | | Limited Liability Company |
FC Winter Street, LLC | | DE | | Limited Liability Company |
FC Wiregrass Member, LLC | | DE | | Limited Liability Company |
FC Wiregrass SPE, LLC | | FL | | Limited Liability Company |
FC WP Building, LLC | | TX | | Limited Liability Company |
FC YONKERS ANCHOR, LLC | | NY | | Limited Liability Company |
FC YONKERS ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC YONKERS HOTEL, LLC | | NY | | Limited Liability Company |
FC Yonkers JM I, LLC | | DE | | Limited Liability Company |
FC Yonkers Office, LLC | | NY | | Limited Liability Company |
FC Yonkers Real Estate, LLC | | NY | | Limited Liability Company |
FC YONKERS RENTAL, LLC | | NY | | Limited Liability Company |
FC YONKERS RESIDENTIAL, LLC | | NY | | Limited Liability Company |
FC YONKERS RETAIL, LLC | | NY | | Limited Liability Company |
FC Yonkers SM I, LLC | | DE | | Limited Liability Company |
FC Ziegler Place LLC | | MI | | Limited Liability Company |
FC/JMT Holdings, LLC | | NY | | Limited Liability Company |
FC/LW Vegas, LLC | | DE | | Limited Liability Company |
FC/Niasher, Inc. | | NY | | Corporation |
FC/RRG FOLEY SQUARE ASSOCIATES, LLC | | NY | | Limited Liability Company |
FC/TREECO COLUMBIA PARK DEVELOPMENT, LLC | | NJ | | Limited Liability Company |
FC/TREECO COLUMBIA PARK LLC | | NJ | | Limited Liability Company |
FC/Wolf Limited Liability Company | | OH | | Limited Liability Company |
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FCAS Facilitator, LLC | | DE | | Limited Liability Company |
FC-BGH, LLC | | NC | | Limited Liability Company |
FCD Bloomfield, LLC | | NJ | | Limited Liability Company |
FCD Chancellor Park, LLC | | PA | | Limited Liability Company |
FCD Lynbrook LLC | | NY | | Limited Liability Company |
FCDT CORP. | | NY | | Corporation |
FC Merger Sub, Inc. | | OH | | Corporation |
FCE Statutory Agent, Inc. | | OH | | Corporation |
FCEP Westchester Swap, LLC | | DE | | Limited Liability Company |
FCG Signature Square, LLC | | OH | | Limited Liability Company |
FCGP-Millender, Inc. | | MI | | Corporation |
FC-Granite, Inc. | | OH | | Corporation |
FCHQC Development, LLC | | DE | | Limited Liability Company |
FC-Hunt, LLC | | CO | | Limited Liability Company |
FCILP, LLC | | DE | | Limited Liability Company |
FC-JHI Garage, LLC | | DE | | Limited Liability Company |
FC-KHC Investment Fund, LLC | | OH | | Limited Liability Company |
FCLG, Inc. | | OH | | Corporation |
FC-MDC/Snyder Holdings, LLC | | NY | | Limited Liability Company |
FC-MDC/ZBall Holdings, LLC | | NY | | Limited Liability Company |
FCNEBP Management, LLC | | DE | | Limited Liability Company |
FCNEBP Parking, LLC | | MD | | Limited Liability Company |
FCPM, Inc. | | MD | | Corporation |
FCR 42ND STREET PARTNERS | | NY | | General Partnership |
FCR ATLANTIC, LLC | | NY | | Limited Liability Company |
FCR CONSTRUCTION SERVICES, LLC | | NY | | Limited Liability Company |
FCR LAND, LLC | | NY | | Limited Liability Company |
FCR SPORTS, LLC | | NY | | Limited Liability Company |
FCR Springing Member, Inc. | | NY | | Corporation |
FCRC CU Tech Development, LLC | | NY | | Limited Liability Company |
FCRC MODULAR, LLC | | NY | | Limited Liability Company |
FCRC Services Company, LLC | | DE | | Limited Liability Company |
FCRC Statutory Agent, LLC | | NY | | Limited Liability Company |
FCRG Development Management, LLC | | DE | | Limited Liability Company |
FCRPC/Niasher, Inc. | | NY | | Corporation |
FCRP-Hamptons, LLC | | OH | | Limited Liability Company |
FCS Residential I, LLC | | DE | | Limited Liability Company |
FCS Residential II, LLC | | DE | | Limited Liability Company |
FCS Residential III, LLC | | DE | | Limited Liability Company |
FCS Residential IV, LLC | | DE | | Limited Liability Company |
FCS Residential V, LLC | | DE | | Limited Liability Company |
FC-Silver Canyon, Inc. | | OH | | Corporation |
FCSR FIT 1, LLC | | DE | | Limited Liability Company |
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FCSR FIT 2, LLC | | DE | | Limited Liability Company |
FCSR FIT 3, LLC | | DE | | Limited Liability Company |
FCSR FIT 4, LLC | | DE | | Limited Liability Company |
FCSR-Quasar, LLC | | DE | | Limited Liability Company |
FC-SW Presidio, LLC | | OH | | Limited Liability Company |
FC-SYSTEM, L.L.C. | | DE | | Limited Liability Company |
FCTRS Services, LLC | | DE | | Limited Liability Company |
FCW Yards LLC | | DC | | Limited Liability Company |
Fenimore Investment Associates Limited Partnership | | MI | | Limited Partnership |
Fenimore Limited Dividend Housing Association | | MI | | Limited Partnership |
Fifth Fairway at Aberdeen, Ltd. | | OH | | Limited Liability Company |
First Forest City Brookline Street, Inc. | | MA | | Corporation |
First New York Management Company, Inc. | | NY | | Corporation |
First New York Partners Management, LLC | | NY | | Limited Liability Company |
Fitzsimons Construction Management, LLC | | CO | | Limited Liability Company |
Fitzsimons Developer Building 1, LLC | | CO | | Limited Liability Company |
Fitzsimons Developer, LLC | | CO | | Limited Liability Company |
FL Tampa West, Inc. | | FL | | Corporation |
FNF, L.L.C. | | IL | | Limited Liability Company |
Forest Bay, Inc. | | OH | | Corporation |
Forest City 129 Franklin, Inc. | | OH | | Corporation |
Forest City 31st Street, LP | | PA | | Limited Partnership |
Forest City 38 Sidney Street, Inc. | | OH | | Corporation |
Forest City 40 Landsdowne, LLC | | DE | | Limited Liability Company |
Forest City 42nd Street, Inc. | | NY | | Corporation |
Forest City 64 Sidney Street, Inc. | | OH | | Corporation |
Forest City 88 Sidney Street, LLC | | DE | | Limited Liability Company |
Forest City American European Company, Ltd. | | OH | | Limited Liability Company |
Forest City Ancillary Services, Inc. | | OH | | Corporation |
Forest City Antelope Valley II, Inc. | | OH | | Corporation |
Forest City Antelope Valley, Inc. | | OH | | Corporation |
Forest City B.U.G. Building, Inc. | | NY | | Corporation |
Forest City Bayside Corp. | | OH | | Corporation |
Forest City Bessemer Court Associates, LP | | DE | | Limited Partnership |
Forest City Big Creek, L.L.C. | | OH | | Limited Liability Company |
Forest City Blossom, LP | | DE | | Limited Partnership |
Forest City Bluffside Corporation | | OH | | Corporation |
Forest City Bolingbrook, LLC | | IL | | Limited Liability Company |
Forest City Brasil Empreendimentos Ltda. | | BR | | Limited Liability Company |
Forest City Bridge Street Associates II, LLC | | DE | | Limited Liability Company |
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Forest City Bridge Street Associates, L.P. | | NY | | Limited Partnership |
Forest City Bruckner, Inc. | | NY | | Corporation |
Forest City California Commercial Construction, Inc. | | CA | | Corporation |
Forest City California Residential Development, Inc. | | CA | | Corporation |
Forest City Cambridge, Inc. | | OH | | Corporation |
Forest City Capital Corporation | | OH | | Corporation |
Forest City Capper/Carrollsburg, Inc. | | DC | | Corporation |
Forest City Central Station, Inc. | | OH | | Corporation |
Forest City Commercial Construction Co., Inc. | | OH | | Corporation |
Forest City Commercial Development, Inc. | | OH | | Corporation |
Forest City Commercial Group, Inc. | | OH | | Corporation |
Forest City Commercial Group, LLC | | DE | | Limited Liability Company |
Forest City Commercial Holdings, Inc. | | NY | | Corporation |
Forest City Commercial Management, Inc. | | OH | | Corporation |
Forest City Community Development Entity, LLC | | NY | | Limited Liability Company |
Forest City Contract Lumber, Inc. | | OH | | Corporation |
Forest City Covington NM, LLC | | NM | | Limited Liability Company |
Forest City CU Tech, LLC | | NY | | Limited Liability Company |
Forest City Development California, Inc. | | CA | | Corporation |
Forest City East Coast, Inc. | | NY | | Corporation |
Forest City Ely, Inc. | | NY | | Corporation |
Forest City Employer, LLC | | DE | | Limited Liability Company |
Forest City Equity Services, Inc. (fka Forest City Residential Development, Inc.) | | OH | | Corporation |
Forest City Fiber Optic LLC | | OH | | Limited Liability Company |
Forest City Finance Corporation | | OH | | Corporation |
FOREST CITY FITZSIMONS, INC. F/K/A Forest City Fitzsimmons, Inc. | | CO | | Corporation |
Forest City Flatbush, Inc. | | NY | | Corporation |
Forest City Fogelson South Properties, LLC | | IL | | Limited Liability Company |
Forest City Franklin Town Corp. | | OH | | Corporation |
Forest City Fulton Street Building, Inc. | | NY | | Corporation |
Forest City G Street, Inc. | | PA | | Corporation |
Forest City Harris AVM, LLC | | DE | | Limited Liability Company |
Forest City Hawaii Kona, LLC | | HI | | Limited Liability Company |
Forest City Hawaii Residential, Inc. | | HI | | Corporation |
Forest City Hawaii, LLC | | HI | | Limited Liability Company |
Forest City Hollisian Lessee, LLC | | DE | | Limited Liability Company |
Forest City Hunters Hollow, L.L.C. | | OH | | Limited Liability Company |
Forest City International Limited | | GB | | Corporation |
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Forest City International Plaza Corp. | | OH | | Corporation |
Forest City Investment Partners I Limited Partnership | | DC | | Limited Partnership |
Forest City Investment Partners II Limited Partnership | | DC | | Limited Partnership |
Forest City Investment Partners III Limited Partnership | | DC | | Limited Partnership |
Forest City Investment Partners IV Limited Partnership | | DC | | Limited Partnership |
Forest City Investment Partners Michigan L. P. | | DC | | Limited Partnership |
Forest City Investment Partners Michigan L. P. II | | DC | | Limited Partnership |
Forest City Investment Partners Millender Center Limited Partnership | | DC | | Limited Partnership |
Forest City Investment Partners V Limited Partnership | | DC | | Limited Partnership |
Forest City Jay Street Associates, L.P. (fka: Forest City Jay Street Associates) | | NY | | Limited Partnership |
Forest City Kaka'ako, LLC | | DE | | Limited Liability Company |
Forest City Kapolei Apartments, LLC | | DE | | Limited Liability Company |
Forest City Land Development, LLC | | OH | | Limited Liability Company |
Forest City Land Group, Inc. | | OH | | Corporation |
Forest City Lehigh Valley Limited Partnership | | PA | | Limited Partnership |
Forest City Lenox, Inc. | | VA | | Corporation |
Forest City Liberty, LLC | | DE | | Limited Liability Company |
Forest City Loan, LLC | | DE | | Limited Liability Company |
FOREST CITY MASTER ASSOCIATES | | NY | | General Partnership |
Forest City Master Associates III, LLC | | NY | | Limited Liability Company |
Forest City Master Planning, LLC | | DC | | Limited Liability Company |
Forest City Mauritius Limited | | MU | | Corporation |
Forest City Merc, LLC | | DE | | Limited Liability Company |
Forest City Mercy Campus, Inc. | | OH | | Corporation |
Forest City Mesa Residential Development, LLC | | DE | | Limited Liability Company |
Forest City Metrotech Associates L.P. | | NY | | Limited Partnership |
Forest City Metrotech Corp. | | OH | | Corporation |
Forest City Military Communities, LLC | | OH | | Limited Liability Company |
Forest City Myrtle Associates, LLC | | DE | | Limited Liability Company |
FOREST CITY MYRTLE MEZZANINE, LLC | | NY | | Limited Liability Company |
Forest City N. Y., Inc. | | NY | | Corporation |
Forest City N.Y. Group, Inc. | | NY | | Corporation |
Forest City Network Solutions, LLC | | MA | | Limited Liability Company |
Forest City New York Member, LLC | | NY | | Limited Liability Company |
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Forest City NJ&M, LLC | | DE | | Limited Liability Company |
Forest City NM, LLC | | NM | | Limited Liability Company |
Forest City Northwest Developer, LLC | | WA | | Limited Liability Company |
Forest City Northwest-DB, LLC | | WA | | Limited Liability Company |
Forest City Peripheral Land, Inc. | | DE | | Corporation |
Forest City Pierrepont Associates | | NY | | General Partnership |
Forest City Pierrepont, Inc. | | NY | | Corporation |
Forest City Pittsburgh Land, Inc. | | DE | | Corporation |
Forest City Prosper Limited Partnership | | TX | | Limited Partnership |
Forest City Quartermaster, Inc. | | PA | | Corporation |
Forest City Ratner Companies, LLC | | NY | | Limited Liability Company |
Forest City Real Estate Services, LLC f/k/a FC Asset Services, LLC | | OH | | Limited Liability Company |
Forest City Realty Trust, Inc. | | MD | | Corporation |
Forest City Reese, LLC | | DE | | Limited Liability Company |
Forest City Rental Properties Corporation | | OH | | Corporation |
Forest City Reserve, LLC | | DE | | Limited Liability Company |
Forest City Residential Group, Inc. | | OH | | Corporation |
Forest City Residential Group, LLC | | DE | | Limited Liability Company |
Forest City Residential Management, Inc. | | OH | | Corporation |
Forest City Residential West, LLC | | CA | | Limited Liability Company |
Forest City Residential, Inc. | | OH | | Corporation |
Forest City Richmond, Inc. | | NY | | Corporation |
Forest City Robinson Mall, Inc. | | DE | | Corporation |
Forest City RRG Associates | | NY | | General Partnership |
Forest City S.I.A.C. Building, Inc. | | NY | | Corporation |
Forest City San Vicente Corp. | | OH | | Corporation |
Forest City Security Services, LLC | | DE | | Limited Liability Company |
Forest City SEFC, LLC | | DC | | Limited Liability Company |
Forest City Silver Spring, Inc. | | MD | | Corporation |
Forest City Sound View Associates | | CT | | Limited Partnership |
Forest City Southern Group, LLC | | DE | | Limited Liability Company |
Forest City Southpark Two, Inc. | | CA | | Corporation |
FOREST CITY SPORTS, LLC | | NY | | Limited Liability Company |
Forest City Stapleton Land, Inc. | | CO | | Corporation |
Forest City Stapleton, Inc. | | CO | | Corporation |
Forest City Station Square Associates, LP | | DE | | Limited Partnership |
Forest City Station Square, Inc. | | PA | | Corporation |
FOREST CITY SUBSIDIARY CDE I, LLC | | NY | | Limited Liability Company |
FOREST CITY SUBSIDIARY CDE II, LLC | | NY | | Limited Liability Company |
FOREST CITY SUBSIDIARY CDE III, LLC | | NY | | Limited Liability Company |
FOREST CITY SUBSIDIARY CDE IV, LLC | | NY | | Limited Liability Company |
FOREST CITY SUBSIDIARY CDE V, LLC | | NY | | Limited Liability Company |
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FOREST CITY SUBSIDIARY CDE VI, LLC | | NY | | Limited Liability Company |
FOREST CITY SUBSIDIARY CDE VII, LLC | | NY | | Limited Liability Company |
Forest City Sustainable Resources Oahu, LLC | | HI | | Limited Liability Company |
Forest City Sustainable Resources Pearl City, LLC | | HI | | Limited Liability Company |
Forest City Sustainable Resources, LLC | | OH | | Limited Liability Company |
Forest City Tangerine, Inc. | | AZ | | Corporation |
FOREST CITY TECH PLACE ASSOCIATES II, LLC | | DE | | Limited Liability Company |
FOREST CITY TECH PLACE ASSOCIATES, L. P. | | NY | | Limited Partnership |
Forest City Tech Place, Inc. | | NY | | Corporation |
Forest City Texas, Inc. | | DE | | Corporation |
FOREST CITY TILDEN ASSOCIATES, LLC | | NY | | Limited Liability Company |
Forest City Tilden, Inc. | | NY | | Corporation |
Forest City TRS, LLC | | DE | | Limited Liability Company |
Forest City University Park Food Services, Inc. | | OH | | Corporation |
Forest City University Park, LLC | | DE | | Limited Liability Company |
Forest City Waring, Inc. | | NY | | Corporation |
Forest City Washington, Inc. | | DC | | Corporation |
Forest City West Village, LLC | | DE | | Limited Liability Company |
Forest City Wiregrass, LLC | | FL | | Limited Liability Company |
Forest City Woodridge, Inc. | | OH | | Corporation |
Forest City-EP, L.L.C. | | OH | | Limited Liability Company |
Forest City-Harris Group | | IL | | General Partnership |
Forest City-New East Baltimore Partnership, LLC | | MD | | Limited Liability Company |
Fort Lincoln Senior Village II Limited Partnership | | DC | | Limited Partnership |
Fort Lincoln Senior Village III Limited Partnership | | DC | | Limited Partnership |
Foundry Lofts Workforce, LLC | | DE | | Limited Liability Company |
Franklin Town Towers Associates | | PA | | Limited Partnership |
Freight House Operating Member, LLC | | DE | | Limited Liability Company |
Frenchtown Place Associates Limited Dividend Housing Association Limited Partnership | | MI | | Limited Partnership |
Ft Benning Swap SPE, LLC | | DE | | Limited Liability Company |
Galway Residential, LTD. | | OH | | Limited Liability Company |
Garfield Mall Associates | | OH | | General Partnership |
GG Natural Gas, LLC | | OH | | Limited Liability Company |
GL - DB, LLC | | IL | | Limited Liability Company |
Gladstone New Energy, LLC | | NM | | Limited Liability Company |
GL-CC, LLC | | IL | | Limited Liability Company |
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Glendora Gardens Associates | | CA | | Limited Partnership |
Glendora Gardens Investors Limited Partnership | | OH | | Limited Partnership |
Glengary LLC | | DE | | Limited Liability Company |
Golden Gate Shopping Center, LTD. | | OH | | Limited Liability Company |
GP 1 AIR RIGHTS, LLC | | IL | | Limited Liability Company |
GP 1, LLC | | IL | | Limited Liability Company |
Granada Apartments Ltd. | | OH | | Limited Liability Company |
Granite Development Partners, L. P. | | DE | | Limited Partnership |
Granite Silver Development Partners L. P. | | DE | | Limited Partnership |
Grove Associates | | CA | | Limited Partnership |
GS FC Hudson Exchange, LLC | | DE | | Limited Liability Company |
GS FC Jersey City Pep 1 Urban Renewal, LLC | | NJ | | Urban Renewal |
GS FC Jersey City Pep 1, LLC | | DE | | Limited Liability Company |
GS FC Jersey City Pep 2 Urban Renewal, LLC | | NJ | | Urban Renewal |
GS FC Jersey City Pep 2, LLC | | DE | | Limited Liability Company |
HAI/FCD Company, LLC | | CA | | Limited Liability Company |
Halle Garage Investments, LLC | | OH | | Limited Liability Company |
Halle Garage, LLC | | OH | | Limited Liability Company |
Halle Investments, LLC | | OH | | Limited Liability Company |
HARLEM CENTER LLC | | NY | | Limited Liability Company |
HARLEM CENTER OFFICE, LLC | | NY | | Limited Liability Company |
Hawaii Military Communities, LLC | | HI | | Limited Liability Company |
Highland II, L.L.C. | | VA | | Limited Liability Company |
Hillcrest Investments, LLC | | VA | | Limited Liability Company |
Historic Developers, LLC | | OH | | Limited Liability Company |
HMC - DB, LLC | | HI | | Limited Liability Company |
Ho'ohana Solar 1, LLC | | DE | | Limited Liability Company |
Horizon Coastal, LLC | | HI | | Limited Liability Company |
Horizon Construction, LLC | | DE | | Limited Liability Company |
Hudson FC Group, LLC | | DE | | Limited Liability Company |
Hunters Hollow Apartments, L.L.C. | | OH | | Limited Liability Company |
In Town Parking, Inc. | | OH | | Corporation |
In Town Shopping Center, Inc. | | OH | | Corporation |
Independence Place Associates, L.L.C. | | OH | | Limited Liability Company |
John Sale Manor, Ltd. | | OH | | Limited Partnership |
JS Fund I, LLC | | OH | | Limited Liability Company |
K & S Associates, an Ohio General Partnership | | OH | | General Partnership |
Kennedy Lofts Associates | | MA | | General Partnership |
Kennedy Lofts Associates Limited Partnership | | MA | | Limited Partnership |
Kennedy Lofts Development Associates | | MA | | General Partnership |
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Kent Tower 43 Associates, Ltd. | | OH | | Limited Partnership |
KERA Limited Partnership | | NY | | Limited Partnership |
Kline's Farm Group, LLC | | OH | | Limited Liability Company |
Laburnum Investment, LLC | | VA | | Limited Liability Company |
Lakeland Place Associates Limited Dividend Housing Association Limited Partnership | | MI | | Limited Partnership |
LaMesa Springs Associates, a California Limited Partnership | | CA | | Limited Partnership |
LaMesa Springs Associates, a California Limited Partnership | | CA | | Limited Partnership |
Landis Forest City AC Estacionamentos Ltda. | | BR | | GEN PARTNERSHIP |
Landis Forest City Consultoria e Intermediacão de NegòLtda. | | BR | | General Partnership (GP) |
Landis Forest City Desenvolvimento Ltda. Ltda. | | BR | | GEN PARTNERSHIP |
Landis Forest City Gestão De Shopping Centers Ltda. | | BR | | General Partnership (GP) |
Lenox Club Holding, LLC | | VA | | Limited Liability Company |
Lenox Club Limited Partnership | | VA | | Limited Partnership |
Lenox Park Business Trust | | MD | | Trust |
Lexington Village II LP | | PA | | Limited Partnership |
Liberty Hill Apartments I, Ltd. | | OH | | Limited Liability Company |
Liberty Hill Apartments SPE, LLC | | DE | | Limited Liability Company |
Lifestyles at Boot Ranch | | FL | | General Partnership |
Lifestyles at Boot Ranch, LLC | | OH | | Limited Liability Company |
Lima L. D. Corp. | | OH | | Corporation |
Lima Towers, Ltd. | | OH | | Limited Partnership |
Mallard Point, LLC | | OH | | Limited Liability Company |
Marigold Development Corp. | | OH | | Corporation |
Mass Ave 300 Block East LLC | | MA | | Limited Liability Company |
Mass Ave 300 Block West LLC | | MA | | Limited Liability Company |
MASTER ASSOCIATES II | | NY | | General Partnership |
Master III FC/BCR Holdings, Inc. | | NY | | Corporation |
McCullough Center Manager, LLC | | OH | | Limited Liability Company |
MDC SPORTS, LLC | | NY | | Limited Liability Company |
MdelS, LLC | | NM | | Limited Liability Company |
Mercy Campus Developers, LLC | | IL | | Limited Liability Company |
Mesa Del Sol, LLC | | NM | | Limited Liability Company |
Mesa-Innovation Park Building 2 LLC | | NM | | Limited Liability Company |
Mesa-Innovation Park Building 3 LLC | | NM | | Limited Liability Company |
Mesa-Towncenter Building #1, LLC | | NM | | Limited Liability Company |
Metro Property Developers | | PA | | General Partnership |
Mid-Corp., Inc. | | OH | | Corporation |
Midwest Family Housing, LLC | | IL | | Limited Liability Company |
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Midwest Military Communities, LLC | | IL | | Limited Liability Company |
Millender Center Associates Limited Partnership | | MI | | Limited Partnership |
Millennium Land Development Company | | OH | | Corporation |
Miner Properties, Ltd. | | OH | | Limited Liability Company |
Miner Properties, Ltd. | | OH | | Limited Liability Company |
Miramar Towers, a California Limited Partnership | | CA | | Limited Partnership |
Monroe Township Associates L. D. H. A. | | MI | | Limited Partnership |
Murphy Hall Manager, LLC | | OH | | Limited Liability Company |
Museum Towers II, LP | | DE | | Limited Partnership |
MWV Pinnacle Capital Fund, L.P. | | OH | | Limited Partnership |
N. Washington Street Garage, LLC | | DE | | Limited Liability Company |
NASSAU EVENTS CENTER, LLC | | DE | | Limited Liability Company |
National Grand Lowry Lofts Associates LP | | CO | | Limited Partnership |
National Grand Lowry Lofts Partners GP | | CO | | General Partnership |
NEC Coliseum Holdings, LLC | | DE | | Limited Liability Company |
NEC Plaza, LLC | | DE | | Limited Liability Company |
NEC Plaza Holdings, LLC | | DE | | Limited Liability Company |
NETS SPORTS AND ENTERTAINMENT, LLC | | DE | | Limited Liability Company |
New Boston L. D. Corp. | | OH | | Corporation |
New Carrollton JV, LLC | | MD | | Limited Liability Company |
New Kensington Tower Associates | | PA | | Limited Partnership |
New Kensington Tower Investments, Ltd. | | OH | | Limited Partnership |
Noble Towers Associates | | PA | | Limited Partnership |
North Church Towers I, LLC | | DE | | Limited Liability Company |
North Church Towers II, Ltd. | | OH | | Limited Liability Company |
North Port Associates, Limited Partnership | | MI | | Limited Partnership |
Northwest Military Communities, LLC | | DE | | Limited Liability Company |
Ocean View Towers Associates Limited Partnership | | NJ | | Limited Partnership |
Ohana Military Communities, LLC | | HI | | Limited Liability Company |
One SFC LLC | | OH | | Limited Liability Company |
Oracle-Wetmore Co. Limited Partnership | | AZ | | Limited Partnership |
Pacific Northwest Communities, LLC | | DE | | Limited Liability Company |
Pacific Park 38 Sixth Avenue, LLC | | DE | | Limited Liability Company |
Pacific Park 535 Carlton, LLC | | DE | | Limited Liability Company |
Pacific Park 550 Vanderbilt, LLC | | DE | | Limited Liability Company |
Pacific Park 615 Dean, LLC | | DE | | Limited Liability Company |
Pacific Park 664 Pacific, LLC | | DE | | Limited Liability Company |
Pacific Park B3 Parking, LLC | | DE | | Limited Liability Company |
Pacific Park B-12 Parking, LLC | | DE | | Limited Liability Company |
Pacific Park Development, LLC | | NY | | Limited Liability Company |
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Pacific Park Parking, LLC | | DE | | Limited Liability Company |
Pacific Park, Inc | | DE | | Corporation |
Palmdale Outparcel Developers Ltd. | | CA | | Limited Partnership |
Palmdale Valley, Inc. | | PA | | Corporation |
Paramount Events Center, LLC | | DE | | Limited Liability Company |
Parcel C Phase 2, L.L.C. | | IL | | Limited Liability Company |
Park Place Tower Associates L. D. H. A. | | MI | | Limited Partnership |
Park Plaza 3-5, LLC | | OH | | Limited Liability Company |
Park Plaza Apartments, LLC | | OH | | Limited Liability Company |
Parkland Place Associates | | WV | | Limited Partnership |
Parkway Advertising Partners | | PA | | General Partnership |
Parmatown Woods, LLC | | DE | | Limited Liability Company |
PB 31st Street LLC | | PA | | Limited Liability Company |
Pembrooke Place, Ltd. | | OH | | Limited Liability Company |
Penrose Properties, Inc. | | OH | | Corporation |
Perrytown Place Associates, a Limited Partnership | | PA | | Limited Partnership |
Pine Grove Manor Associates, Limited Dividend Housing Association | | MI | | Limited Partnership |
Pine Ridge Apartments Co. II, Ltd. | | OH | | Limited Liability Company |
Pine Ridge Apartments Co. Limited Partnership | | OH | | Limited Partnership |
Pine Ridge Building F, LLC | | OH | | Limited Liability Company |
Pine Ridge G & H, LLC (f/k/a Pine Ridge Valley Apartments, Building H, LLC) | | OH | | Limited Liability Company |
Pine Ridge Recreation Club, LLC | | OH | | Limited Liability Company |
Pine Ridge Valley Apartments-East, LLC | | OH | | Limited Liability Company |
Pine Ridge Valley Corp. | | OH | | Corporation |
Pittsburgh Casino, Inc. | | PA | | Corporation |
Playhouse Square Investment, Inc. | | OH | | Corporation |
Post Office Building Co. | | OH | | Corporation |
Post Office Plaza Limited Partnership | | OH | | Limited Partnership |
Post Office Plaza, LLC | | DE | | Limited Liability Company |
Potomac Village Associates Limited Partnership | | WV | | Limited Partnership |
PP 38 Sixth Avenue TC Manager, LLC | | DE | | Limited Liability Company |
PP 38 Sixth Avenue TC, LLC | | DE | | Limited Liability Company |
PP 535 Carlton TC Manager, LLC | | DE | | Limited Liability Company |
PP 535 Carlton TC, LLC | | DE | | Limited Liability Company |
PQ Ground Lessee, LLC | | DE | | Limited Liability Company |
PQ Las Vegas, LLC | | DE | | Limited Liability Company |
QH Las Vegas, LLC | | DE | | Limited Liability Company |
Quebec Square SPE, LLC | | DE | | Limited Liability Company |
Queenswood Associates, L. P. | | DE | | Limited Partnership |
|
| | | | |
Queenswood Management Associates | | NY | | General Partnership |
Ranch Center Associates II | | NV | | General Partnership |
RANCHO BP MEMBER, LLC | | DE | | Limited Liability Company |
RANCHO BP, LLC | | DE | | Limited Liability Company |
Rancho Mall, LLC | | DE | | Limited Liability Company |
RATNER-KESSLER REALTY, INC. | | NY | | Corporation |
Related Forest City Elderly Housing Limited Partnership I | | MA | | Limited Partnership |
Ridge Hill Solar LLC | | DE | | Limited Liability Company |
Riverside Towers, Ltd. | | OH | | Limited Partnership |
Rivervest Limited Partnership | | DC | | Limited Partnership |
RM Member, LLC | | CA | | Limited Liability Company |
Robinson Mall Associates, LLC, | | DE | | Limited Liability Company |
Robinson Mall Developers, LLC | | DE | | Limited Liability Company |
Robinson Mall, Inc. | | PA | | Corporation |
Robinson Metro Associates I | | PA | | Limited Partnership |
Robinson Metro Associates II | | PA | | Limited Partnership |
Robinson Metro Associates III | | PA | | Limited Partnership |
Robinson Metro Associates IV | | PA | | Limited Partnership |
Robinson Metro Associates V | | PA | | Limited Partnership |
Robinson Metro Associates VI | | PA | | Limited Partnership |
Robinson Peripheral Associates I | | PA | | Limited Partnership |
Robinson Peripheral Associates II | | PA | | Limited Partnership |
Robinson Peripheral Associates III | | PA | | Limited Partnership |
Robinson Peripheral Associates IV | | PA | | Limited Partnership |
Robinson Peripheral Associates V | | PA | | Limited Partnership |
Robinson Peripheral Associates VI | | PA | | Limited Partnership |
Robinson Peripheral Developers | | PA | | General Partnership |
Robinson Westpointe Developers | | PA | | General Partnership |
Rockport Square LLC | | OH | | Limited Liability Company |
Rolling Acres Bellefair Member, LLC | | DE | | Limited Liability Company |
Rolling Acres Bellefair, LLC | | DE | | Limited Liability Company |
Rolling Acres Properties Co. Limited Partnership | | OH | | Limited Partnership |
Romig Road, LLC. | | OH | | Limited Liability Company |
RRG 42ND STREET, INC. | | NY | | Corporation |
RRG 625 FULTON ASSOCIATES, INC. | | NY | | Corporation |
RRG B.U.G. ASSOCIATES, L.P. | | DE | | Limited Partnership |
RRG B.U.G. LIMITED PARTNESHIP | | DE | | Limited Partnership |
RRG B.U.G., INC. | | NY | | Corporation |
RRG CASTLE CENTER, INC. | | NY | | Corporation |
RRG COURT STREET, INC | | NY | | Corporation |
RRG FOREST AVENUE, INC. | | NY | | Corporation |
|
| | | | |
RRG FORT GREENE, INC. | | NY | | Corporation |
RRG GRAND AVENUE, INC. | | NY | | Corporation |
RRG JAY OFFICE, INC. | | NY | | Corporation |
RRG MASTER II, INC. | | NY | | Corporation |
RRG METROTECH CORP. | | NY | | Corporation |
RRG PACIFIC, INC. | | NY | | Corporation |
RRG QUARTERMASTER, INC. | | PA | | Corporation |
RRG RESIDENTIAL PROPERTIES, LLC | | NY | | Limited Liability Company |
RRG S.I.A.C., INC. | | NY | | Corporation |
RRG STEINWAY, INC. | | NY | | Corporation |
RRG Sterling Place Associates, LLC | | NY | | Limited Liability Company |
S.D.C. Title Agency, LLC | | OH | | Limited Liability Company |
S.D.C., Inc. | | OH | | Corporation |
S.E. Corner Block 2, L.L.C. | | IL | | Limited Liability Company |
Sabana Seca Land Management, LLC | | DE | | Limited Liability Company |
Sabana Seca Partners, LLC | | DE | | Limited Liability Company |
Scranton Development Company | | OH | | General Partnership |
SDC Realty, Inc. | | OH | | Corporation |
SEFC 160, LLC | | DC | | Limited Liability Company |
Settler's Landing At Greentree I, LLC | | OH | | Limited Liability Company |
Seven Hills Land Company | | OH | | General Partnership |
SF Emporium Bespoke TRS,LLC | | DE | | Limited Liability Company |
SG-DB, LLC | | DE | | Limited Liability Company |
Shamoluzzy, LLC | | DE | | Limited Liability Company |
Shamrock Business Center, Ltd. | | OH | | Limited Liability Company |
Sharp Development, Ltd. | | OH | | Limited Liability Company |
Short Pump Town Center Holding, LLC | | DE | | Limited Liability Company |
Short Pump Town Center, LLC | | VA | | Limited Liability Company |
Signature Square SPE, LLC | | DE | | Limited Liability Company |
Silva Urbs 1 C.V. | | NL | | Limited Partnership |
Silver Canyon Partnership | | NV | | General Partnership |
Simi Valley Town and Country, Inc. | | CA | | Corporation |
Skylight Office Tower Holdings, LLC | | DE | | Limited Liability Company |
Skylight Office Tower Limited Partnership | | CT | | Limited Partnership |
Skylight Office Tower SPE, LLC | | DE | | Limited Liability Company |
SL Syracuse, LLC | | CO | | Limited Liability Company |
Slavic Village Recovery, LLC | | OH | | Limited Liability Company |
SLNG, LLC | | OH | | Limited Liability Company |
Smith - FL Tampa Partners | | FL | | General Partnership |
South Bay Associates | | CA | | Limited Partnership |
South Bay Associates SPE, LLC | | DE | | Limited Liability Company |
South Bay Center SPE, LLC | | DE | | Limited Liability Company |
South Bay Center, LLC | | CA | | Limited Liability Company |
|
| | | | |
South Michigan Avenue Lofts 3, L.L.C. | | IL | | Limited Liability Company |
South Michigan Avenue Lofts Commercial, L.L.C. | | IL | | Limited Liability Company |
Southern Group Military Communities, LLC | | DE | | Limited Liability Company |
Springfield Towers, Ltd. | | OH | | Limited Partnership |
Springhill Commercial Associates | | OH | | General Partnership |
Square 882N Affordable GP, LLC | | DC | | Limited Liability Company |
Square 882N Affordable, L.P. | | DC | | Limited Partnership |
Square 882N FC & MCU, LLC | | DC | | Limited Liability Company |
Square 882N Owner, LLC | | DC | | Limited Liability Company |
SSNG, LLC | | OH | | Limited Liability Company |
St. Mary's Villa Associates Limited Partnership | | NJ | | Limited Partnership |
Stapleton Enterprises, LLC | | CO | | Limited Liability Company |
Stapleton Land II, LLC | | CO | | Limited Liability Company |
Stapleton Land, LLC | | CO | | Limited Liability Company |
Stapleton North Town, LLC | | CO | | Limited Liability Company |
Station Square Gaming L.P. | | PA | | Limited Partnership |
Stonecrest Land Investment, LLC | | GA | | Limited Liability Company |
Sugar Chestnut, LLC | | OH | | Limited Liability Company |
Summerset Development Co. | | OH | | General Partnership |
Sunrise Development Co. | | OH | | Corporation |
Sunrise Land Co. | | OH | | Corporation |
Superior West 6th Partnership | | OH | | General Partnership |
Surfside Apartments, LLC | | OH | | Limited Liability Company |
Surfside Towers II, Inc. | | OH | | Corporation |
Sustainable Albany BioEnergy, LLC | | DE | | Limited Liability Company |
Sustainable BioElectric, LLC | | DE | | Limited Liability Company |
Sustainable BioGas, LLC | | DE | | Limited Liability Company |
Sustainable BioKW, LLC | | DE | | Limited Liability Company |
Sustainable BioPower, LLC | | DE | | Limited Liability Company |
Sustainable BioVolt, LLC | | DE | | Limited Liability Company |
Sustainable NY BioEnergy, LLC | | DE | | Limited Liability Company |
SWC 16th/Indiana, L.L.C. | | IL | | Limited Liability Company |
T.C. Avenue, Inc. F/K/A F.C. Parklabrea Towers, Inc. | | OH | | Corporation |
T.R. Land, Inc. | | VA | | Corporation |
Tamarac Apartments, LLC | | OH | | Limited Liability Company |
Tangerine Road Associates | | AZ | | General Partnership |
Temecula Towne Center Associates, LLC | | DE | | Limited Liability Company |
Terminal Investments, Inc. | | OH | | Corporation |
Terminal Tower Master Tenant, LLC | | DE | | Limited Liability Company |
Terminal Tower SPE, LLC | | DE | | Limited Liability Company |
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| | | | |
The Drake Condominium Association | | PA | | Corporation |
The Grand Business Trust | | MD | | Trust |
THE NEW YORK TIMES BUILDING CONDOMINIUM | | NY | | ... |
THE NEW YORK TIMES BUILDING LLC | | NY | | Limited Liability Company |
Thirty-Eight Sidney Street Limited Partnership | | DE | | Limited Partnership |
Tiago Development, LLC | | NY | | Limited Liability Company |
Tiago Holdings II, LLC | | NY | | Limited Liability Company |
TIAGO HOLDINGS, LLC | | NY | | Limited Liability Company |
TIAGO PARKING HOLDINGS, LLC | | NY | | Limited Liability Company |
Tobacco Row Land, L.P. | | VA | | Limited Partnership |
Tobacco Row TownHouses, LLC F/K/A Tobacco Row Land II, LLC | | VA | | Limited Liability Company |
Tower City Avenue, LLC | | DE | | Limited Liability Company |
Tower City Central Distribution Limited Partnership | | OH | | Limited Partnership |
Tower City Fitness Center, LLC | | OH | | Limited Liability Company |
Tower City Land Corporation | | OH | | Corporation |
Tower City Member, LLC | | DE | | Limited Liability Company |
Tower City Properties Ltd. | | OH | | Limited Partnership |
Tower City Riverview Company | | OH | | Corporation |
Tower City Skylight Tower, Inc. | | OH | | Corporation |
Tower Energy, Inc. | | OH | | Corporation |
Tower Hotels, Inc. | | OH | | Corporation |
Town Center Rental Member, LLC | | CO | | Limited Liability Company |
Town Center Rental, LLC | | DE | | Limited Liability Company |
Towne Centre Place Associates Limited Dividend Housing Association | | MI | | Limited Partnership |
TR Town House, LLC | | VA | | Limited Liability Company |
TR-1 Bond Corp. | | VA | | Corporation |
TR-10 Bond Corp. | | VA | | Corporation |
TR-2 Bond Corp. | | VA | | Corporation |
TR-3 Bond Corp. | | VA | | Corporation |
TR-4 Bond Corp. | | VA | | Corporation |
TR-5 Bond Corp. | | VA | | Corporation |
TR-6 Bond Corp. | | VA | | Corporation |
TR-7 Bond Corp. | | VA | | Corporation |
TR-8 Bond Corp. | | VA | | Corporation |
TR-9 Bond Corp. | | VA | | Corporation |
Tusar, Inc. | | OH | | Corporation |
Twinsburg Land Company, an Ohio Joint Venture | | OH | | General Partnership |
Twinsburg Residential Associates | | OH | | General Partnership |
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University Park Phase II Limited Partnership | | DE | | Limited Partnership |
UP 26 Landsdowne, LLC | | DE | | Limited Liability Company |
UP 35 Landsdowne, LLC | | DE | | Limited Liability Company |
UP 45/75 Sidney Street, LLC | | DE | | Limited Liability Company |
UP 64 Sidney Street, LLC | | DE | | Limited Liability Company |
UP 65/80 Landsdowne, LLC | | DE | | Limited Liability Company |
Uptown Apartments, LLC | | CA | | Limited Liability Company |
Uptown Housing Placeholder, LLC | | CA | | Limited Liability Company |
Vermilion Park Estate, LLC | | OH | | Limited Liability Company |
Village Center Associates Limited Dividend Housing Association | | MI | | Limited Partnership |
Village Green of Beachwood Limited Partnership | | DE | | Limited Partnership |
Wadsworth Development 76, LLC | | OH | | Limited Liability Company |
Waterfront 1001 4th Street, LLC | | DC | | Limited Liability Company |
Waterfront 375 M Street, LLC | | DC | | Limited Liability Company |
Waterfront 425 M Street, LLC | | DC | | Limited Liability Company |
Waterfront Liquidating Trust | | DE | | Trust |
WBA Woodlake, L.L.C. | | MI | | Limited Liability Company |
West Sixth Superior, LLC | | OH | | Limited Liability Company |
West Third Bridge Building LLC | | OH | | Limited Liability Company |
Westerly Associates Limited Partnership | | OH | | Limited Partnership |
Westminster 144th Avenue, LLC | | CO | | Limited Liability Company |
Whiteacres Loan Acquisition, LLC | | DE | | Limited Liability Company |
WilshireWesternCondos, LLC | | CA | | Limited Liability Company |
Winchester Arms NH II LLC | | DE | | Limited Liability Company |
Winchester Lofts, LLC | | DE | | Limited Liability Company |
Winchester Mansfield, LLC | | DE | | Limited Liability Company |
Wisconsin Park Associates Limited Partnership | | MD | | Limited Partnership |
Woodland Residential, Ltd. | | OH | | Limited Liability Company |
Wooster Renewable Energy, LLC | | OH | | Limited Liability Company |
WP, Inc. | | FL | | Corporation |
WWC Member, LLC | | CA | | Limited Liability Company |
York-Ridge Development Company | | OH | | General Partnership |
Schedule 11.02 – Administrative Agent’s Office; Certain Addresses for Notices
BORROWER AND OTHER LOAN PARTIES:
Forest City Enterprises, Inc.
50 Public Square, Suite 1100
Cleveland, Ohio 44113
Attention: Chief Financial Officer
Facsimile: (216) 263-6204
Email: bobobrien@forestcity.net
Telephone: (216) 416-3735
With a copy to:
Forest City Enterprises, Inc.
50 Public Square, Suite 1360
Cleveland, Ohio 44113
Attention: General Counsel
Facsimile: (216) 263-6206
Email: geripresti@forestcity.net
Telephone: (216) 416-3269
With a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: Benjamin R. Weber, Esq.
Email: weberb@sullcrom.com
Facsimile: (212) 291-9162
Telephone: (212) 558-3159
ADMINISTRATIVE AGENT:
Administrative Agent’s Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
225 Franklin Street,
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Oltiana M. Pappas, SVP; Sr. Credit Product Officer
Telephone: (617) 346-0460
Facsimile: (617) 346-5025
Email: Oltiana.pappas@baml.com
With a copy to:
Bank of America, N.A.
225 Franklin Street
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Clare M. O’Connor, AVP; Relationship Administrator
Telephone: (617) 346-0121
Facsimile: (617) 346-4670
Email: clare.m.o’connor@baml.com
Payment Instructions:
Account No.: XXXXXXXX
Other Notices as Administrative Agent:
Bank of America, N.A.
225 Franklin Street,
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Oltiana M. Pappas, SVP; Sr. Credit Product Officer
Telephone: (617) 346-0460
Facsimile: (617) 346-5025
Email: Oltiana.pappas@baml.com
With a copy to:
Bank of America, N.A.
225 Franklin Street
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Clare M. O’Connor, AVP; Relationship Administrator
Telephone: (617) 346-0121
Facsimile: (617) 346-4670
Email: clare.m.o’connor@baml.com
L/C ISSUERS:
Bank of America, N.A.
Bank of America, N.A.
225 Franklin Street,
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Oltiana M. Pappas, SVP; Sr. Credit Product Officer
Telephone: (617) 346-0460
Facsimile: (617) 346-5025
Email: Oltiana.pappas@baml.com
With a copy to:
Bank of America, N.A.
225 Franklin Street
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Clare M. O’Connor, AVP; Relationship Administrator
Telephone: (617) 346-0121
Facsimile: (617) 346-4670
Email: clare.m.o’connor@baml.com
PNC Bank, National Association
PNC Bank, National Association
First Side Center
500 First Avenue
Mail Code: P7-PFSC-04-V
Pittsburgh, Pennsylvania 15219
Attention: Monika Todd
Telephone: 412-762-7675
Facsimile: 999-614-9134
Email: monika.todd@pnc.com
SWING LINE LENDERS:
Bank of America, N.A.
Bank of America, N.A.
225 Franklin Street,
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Oltiana M. Pappas, SVP; Sr. Credit Product Officer
Telephone: (617) 346-0460
Facsimile: (617) 346-5025
Email: Oltiana.pappas@baml.com
With a copy to:
Bank of America, N.A.
225 Franklin Street
Boston, Massachusetts 02210
Mail Code: MAI-225-02-04
Attention: Clare M. O’Connor, AVP; Relationship Administrator
Telephone: (617) 346-0121
Facsimile: (617) 346-4670
Email: clare.m.o’connor@baml.com
PNC Bank, National Association
PNC Bank, National Association
First Side Center
500 First Avenue
Mail Code: P7-PFSC-04-V
Pittsburgh, Pennsylvania 15219
Attention: Monika Todd
Telephone: 412-762-7675
Facsimile: 999-614-9134
Email: monika.todd@pnc.com
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
| |
To: | Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
The undersigned hereby requests (select one):
A Borrowing of Committed Loans
A conversion or continuation of Committed Loans
1. On ________________________________ (a Business Day).
2. In the amount of $____________________.
3. Comprised of ________________________.
[Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of ____ months.
The Committed Borrowing requested herein complies with the proviso to the first sentence of Section 2.01 of the Agreement.
[Signature page immediately follows]
__________________________
1 Minimum principal amount of $1,000,000 for Borrowing of, conversion to or continuation of Eurodollar Rate Loans and $500,000 for Borrowing of or conversion to Base Rate Committed Loans.
A-1-1
Form of Committed Loan Notice
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[BORROWER] |
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
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A-1-2
Form of Committed Loan Notice
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
| |
To: | Bank of America, N.A., as a Swing Line Lender
PNC Bank, National Association, as a Swing Line Lender
Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
The undersigned hereby requests a Swing Line Loan:
1. On _________________________________ (a Business Day).
2. In the amount of $_____________________.
The Swing Line Borrowing requested herein complies with the requirements of the proviso to the first sentence of Section 2.04(a) of the Agreement.
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[BORROWER] |
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
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B-1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF NOTE
__________________
FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to _____________________ or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among the Borrower, certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
To the extent any provision of this Note conflicts with or is inconsistent with the Agreement, the Agreement shall control.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
THIS NOTE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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[BORROWER] |
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
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LOANS AND PAYMENTS WITH RESPECT THERETO
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Date | Type of Loan Made | Amount of Loan Made | End of Interest Period | Amount of Principal or Interest Paid This Date | Outstanding Principal Balance This Date | Notation Made By |
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: __________________, _____
| |
To: | Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the chief financial officer of the Reporting Entity, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Reporting Entity, and not in such person’s individual capacity, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. The Reporting Entity has delivered the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Reporting Entity ended as of the above date, together with the report of an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. The Reporting Entity has delivered the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Reporting Entity ended as of the above date. Such financial statements fairly present the consolidated financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Group in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a review of the transactions and condition (financial or otherwise) of the Consolidated Group during the accounting period covered by such financial statements.
3. A review of the activities of the Consolidated Group during such fiscal period has been made with a view to determining whether during such fiscal period the Consolidated Group performed and observed all their respective Obligations under the Loan Documents, and
D-1
Form of Compliance Certificate
[select one:]
[to the knowledge of the Reporting Entity, during such fiscal period each of the Consolidated Parties performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[to the knowledge of the Reporting Entity, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4. The Reporting Entity is in compliance with the provisions of Section 7.09 1 of the Agreement and the Minimum Unencumbered Property Condition. The financial covenant analyses and information set forth on Schedules 1, 2 and 3 attached hereto are true and accurate on and as of the date of this Compliance Certificate.
5. Attached hereto as Schedule 4 is a true, correct and complete list of all Unencumbered Pool Properties as of the Financial Statement Date.
6. Unencumbered Pool Value as of the Financial Statement Date is $_______________. Attached hereto as Schedule 5 is a true, correct and complete calculation of Unencumbered Pool Value.
7. Attached hereto as Schedule 6 is a true, correct and complete quarterly and year-to-date summary report of Unencumbered NOI attributable to each Unencumbered Pool Property for such fiscal period ending on the Financial Statement Date, prepared on a basis consistent with the Audited Financial Statements. The information contained in the financial statements referenced in paragraph 1 fairly presents Net Operating Income attributable to each Property and Unencumbered NOI attributable to each Unencumbered Pool Property for such periods.
8. Attached hereto as Schedule 7 is a true, correct and complete statement of Funds From Operations.
______________________
1 Prior to March 31, 2016, compliance with the covenants set forth in Sections 7.09(b), (c), (d), (e) and (f) shall not be required.
D-2
Form of Compliance Certificate
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________, __________.
|
|
[REPORTING ENTITY] |
|
By:_________________________________ |
|
Name: ______________________________ |
|
Title: _______________________________ |
|
|
D-3
Form of Compliance Certificate
For the Quarter/Year ended ___________________(“Statement Date”)
SCHEDULE 1
to the Compliance Certificate
on a Pro Forma Basis ($ in 000’s)
|
| | | |
I. | 7.09(a) Maximum Total Leverage Ratio
| | |
A. | Total Indebtedness - Unrestricted Cash in excess of $40,000,000 as of the Statement Date:
| | |
| 1. Total Indebtedness as of the Statement Date: | $_______________ | |
| | | |
| 2. Unrestricted Cash in excess of $40,000,000 as of the Statement Date:
| $_______________ | |
| 3. Line I.A.1. - Line I.A.2.: | | $__________________ |
| | | |
B. | Total Asset Value – Unrestricted Cash in excess of $40,000,000 as of the Statement Date:
| | |
| 1. Total Asset Value as of the Statement Date (Schedule 3): | $_______________ | |
| | | |
| 2. Unrestricted Cash in excess of $40,000,000 as of the Statement Date:
| $_______________ | |
| 3. Line I.B.1. - Line I.B.2.: | | $__________________ |
| | | |
C. | Maximum Total Leverage Ratio (Line I.A.3. < [65%] 2 [60%] 3 of Line I.B.3.) | | Compliance: (Yes or No) |
| | | |
______________________________________
2 Applies on and prior to December 31, 2017. After December 31, 2017, applies only at the election of the Borrower for any fiscal quarter in which a Consolidated Party or an Unconsolidated Affiliate completes a Material Acquisition and for up to the next two subsequent consecutive fiscal quarters, and may be elected for a maximum of four fiscal quarters (whether or not consecutive) during the term of the Facility
3 Applies after December 31, 2017
D-4
Form of Compliance Certificate
|
| | |
II. | 7.09(b) Maximum Secured Leverage Ratio
| |
A. | Total Secured Indebtedness as of the Statement Date:
| $__________________ |
B. | Total Asset Value as of the Statement Date (Schedule 3):
| $__________________ |
C. | Maximum Secured Leverage Ratio (Line II.A < [55%] 4 [50%] 5 of Line II.B) | Compliance: (Yes or No) |
______________________________
4 Applies from March 31, 2016 through and including December 31, 2018
5 Applies after December 31, 2018
D-5
Form of Compliance Certificate
|
| | |
III. | 7.09(c) Maximum Secured Recourse Leverage Ratio 6
| |
A. | Total Secured Recourse Indebtedness as of the Statement Date:
| $__________________ |
B. | Total Asset Value as of the Statement Date (Schedule 3):
| $__________________ |
C. | Maximum Secured Recourse Leverage Ratio (Line III.A < 15% of Line III.B) | Compliance: (Yes or No) |
| | |
| | |
____________________________________
6 Applies on and after March 31, 2016
D-6
Form of Compliance Certificate
|
| | | |
IV. | 7.09(d) Minimum Fixed Charge Coverage Ratio7
| | |
A. | Adjusted EBITDA for the trailing four quarter period ending on the Statement Date (the “Subject Period”):
| | |
| 1. EBITDA (Schedule 2): | $______________ | |
| 2. aggregate Capital Reserves for all Properties during the Subject Period: | $______________ | |
| 3. Adjusted EBITDA (Line IV.A.1. – Line IV.A.2.): | | $_______________ |
| | | |
B. | Total Fixed Charges for the Subject Period:
| | |
| 1. Interest Expense for the Subject Period: | $______________ | |
| | | |
| 2. all regularly scheduled principal payments made with respect to Indebtedness of the Reporting Entity and its Subsidiaries during the Subject Period, other than any balloon, bullet or similar principal payment which repays any such Indebtedness in full:
| $______________ | |
| 3. all Preferred Dividends paid during Subject Period: | $______________ | |
| 4. Total Fixed Charges (Line IV.B.1. + Line IV.B.2. + Line IV.B.3.): | |
$__________________ |
| | | |
C. | Minimum Fixed Charge Coverage Ratio (Line IV.A.3. ÷ Line IV.B.4)
| | _______________ (Minimum permitted is 1.50 to 1.0) |
| | | |
______________________________________
7 Applies on and after March 31, 2016
D-7
Form of Compliance Certificate
|
| | | |
V. | 7.09(e) Maximum Unsecured Leverage Ratio
| | |
A. | Total Indebtedness that is Unsecured Indebtedness – Unrestricted Cash in excess of $40,000,000:
| | |
| 1. Total Indebtedness that is Unsecured Indebtedness as of the Statement Date: | $_______________ | |
| | | |
| 2. Unrestricted Cash in excess of $40,000,000 as of the Statement Date:
| $_______________ | |
| 3. Line I.A.1. - Line I.A.2.: | | $_______________ |
| | | |
B. | Unencumbered Pool Value as of the Statement Date (Schedule 5):
| |
$_______________ |
C. | Maximum Unsecured Leverage Ratio (Line I.A.3. < [60%] 8 [65%] 9 of Line I.B.3.)
| | Compliance: (Yes or No) |
_____________________________________
8 Applies on and after March 31, 2016
9 Applies only at the election of the Borrower for any fiscal quarter in which a Consolidated Party or an Unconsolidated Affiliate completes a Material Acquisition and for up to the next two subsequent consecutive fiscal quarters, and may be elected for a maximum of four fiscal quarters (whether or not consecutive) during the term of the Facility
D-8
Form of Compliance Certificate
|
| | | |
VI. | 7.09(f) Minimum Unencumbered Interest Coverage Ratio
| | |
A. | Unencumbered NOI for the Subject Period (Schedule 6):
| | $_______________ |
B. | Interest Expense on Unsecured Indebtedness for the Subject Period:
| |
$_______________ |
C. | Minimum Unencumbered Interest Coverage Ratio (Line A ÷ Line B)
| | ________________ (Minimum permitted is [1.50] 10 [1.75] 11 to 1.00)
|
[Support for financial covenant calculations to be provided by the Reporting Entity]
___________________________________
10 Applies from March 31, 2016 through and including December 31, 2017
11 Applies after December 31, 2017
D-9
Form of Compliance Certificate
For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
EBITDA
(in accordance with the definition of EBITDA
as set forth in the Agreement) |
| | | | | |
EBITDA | Quarter
Ended
__________ | Quarter
Ended
__________ | Quarter
Ended
__________ | Quarter
Ended
__________ | Four Quarters
Ended
__________ |
net earnings (loss) excluding the following amounts (but only to the extent deducted in calculating net earnings (loss) for such period) | | | | | |
- depreciation and amortization expense and asset write downs and write offs | | | | | |
- Interest Expense | | | | | |
- income tax expense | | | | | |
- gains, losses, charges or expenses resulting from extraordinary or non-recurring transactions, including non-recurring severance payments, gain/loss on sale of assets, early extinguishment or restructuring of Indebtedness (including prepayment premiums), REIT Conversion costs, write-offs and forgiveness of debt | | | | | |
- one-time costs and expenses related to the effectiveness of the Agreement and the other Loan Documents and the transactions related thereto | | | | | |
- proceeds of rent loss insurance and business interruption insurance; | | | | | |
- proceeds of rent loss and business interruption insurance | | | | | |
- acquisition closing costs that are capitalized per FASB ASC 805 | | | | | |
D-10
Form of Compliance Certificate
|
| | | | | |
- other non-cash charges (including impairment charges or expenses) excluding non-cash charges that constitute an accrual of a reserve for future cash payments | | | | | |
= EBITDA | | | | | |
D-11
Form of Compliance Certificate
For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 3
to the Compliance Certificate
($ in 000’s)
Total Asset Value
(in accordance with the definition of Total Asset Value
as set forth in the Agreement)
D-12
Form of Compliance Certificate
For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 4
to the Compliance Certificate
List of Unencumbered Pool Properties
(see attached)
D-13
Form of Compliance Certificate
For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 5
to the Compliance Certificate
($ in 000’s)
Unencumbered Asset Value
(in accordance with the definition of Unencumbered Asset Value
as set forth in the Agreement)
D-14
Form of Compliance Certificate
For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 6
to the Compliance Certificate
($ in 000’s)
Quarterly and Year-to-Date Summary Report of Unencumbered NOI
(in accordance with the definition of Unencumbered NOI
as set forth in the Agreement)
(see attached)
D-15
Form of Compliance Certificate
For the Quarter/Year ended ___________________ (“Statement Date”)
SCHEDULE 7
to the Compliance Certificate
($ in 000’s)
Funds From Operations
(in accordance with the definition of Funds from Operations
as set forth in the Agreement)
D-16
Form of Compliance Certificate
EXHIBIT E-1
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line Loans included in such facilities 5) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
__________________________________
| |
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. |
| |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. |
| |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
| |
5 | Include all applicable subfacilities. |
E-1-1
Form of Assignment and Assumption
1. Assignor[s]: ______________________________
[Assignor [is] [is not] a Defaulting Lender]
______________________________
[Assignor [is] [is not] a Defaulting Lender]
| |
2. | Assignee[s]: ______________________________ |
______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
3. Borrower(s):
| |
4. | Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement |
| |
5. | Credit Agreement: Credit Agreement, dated as of November 17, 2015, among Forest City Enterprises, Inc., an Ohio corporation, certain affiliates thereof from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers |
6. Assigned Interest[s]:
|
| | | | | |
Assignor[s] 6 |
Assignee[s] 7 | Aggregate Amount of Commitment for all Lenders 8 |
Amount of Commitment Assigned |
Percentage Assigned of Commitment 9 |
CUSIP Number |
| | | | | |
| | $________________ | $_________ | ____________% | |
| | $________________ | $_________ | ____________% | |
| | $________________ | $_________ | ____________% | |
[7. Trade Date: __________________] 10
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]
________________________
| |
6 | List each Assignor, as appropriate. |
| |
7 | List each Assignee and, if available, its market entity identifier, as appropriate. |
| |
8 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. |
| |
9 | Set forth, to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder. |
10 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
E-1-2
Form of Assignment and Assumption
[NAME OF ASSIGNOR]
By: _____________________________
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE[S]
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and] 11 Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Title:
[Consented to:] 12
By: _________________________________
Title:
_____________________________________
| |
11 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
| |
12 | To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lenders, L/C Issuers) is required by the terms of the Credit Agreement. |
E-1-3
Form of Assignment and Assumption
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is not a Disqualified Institution and meets all the requirements to be an assignee under Section 11.06(b)(iii) and (v) of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements referred to in Section 5.05 thereof or delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, 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 Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
E-1-4
Form of Assignment and Assumption
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
E-1-5
Form of Assignment and Assumption
EXHIBIT E-2
FORM OF ADMINISTRATIVE QUESTIONNAIRE
(see attached)
E-2-1
Form of Administrative Questionnaire
|
| | | | | | | | | |
| | | | | | 225 Franklin Street |
| | | AGENT'S QUESTIONNAIRE | Boston, MA 02110 |
| | | | | | | Mail Stop MAI-225-02-04 |
Please complete and return this form to Agent's administration contact identified below. Please type or print. |
| | | | | | | | | |
Borrower Name: | Forest City Enterprises, Inc. | |
Project Name: | | |
| | | | | | | | | |
BANK OF AMERICA INFORMATION |
Administration Contact: |
| Name: | Clare M. O'Connor | | |
| Phone: | (617) 346-0121 | | |
| Fax: | (617) 346-4670 | | |
| e-mail: | clare.m.o'connor@baml.com | | |
| | | | | | | | | |
Credit Contact/Loan Officer: |
| Name: | Oltiana M. Pappas | | |
| Phone: | (617) 346-0460 | | |
| Fax: | (617) 346-5025 | | |
| e-mail: | oltiana.m.pappas@baml.com | | |
| | | | | | | | | |
Operations Contact |
| Name: | | | |
| Phone: | | | |
| Fax: | | | |
| e-mail: | | | |
| | | | | | | | | |
Wiring Instructions: | | Bank of America, N.A. | | | | |
| | | | | | | | | |
| | | | ABA | | |
| | | | Attn: | | |
| | | | Account No: | | |
| | | | Reference: | | |
| | | | | | | | | |
LENDER INFORMATION |
| | | | | | | | | |
Lender Name: | | |
Address: | | |
City/State/Zip: | | |
| | | | | | | | | |
Wiring Instructions: | Destination Bank: | |
| | | City/State: | |
| | | ABA: | |
| | | Account Name: | |
| | | Account Number: | |
E-2-2
Form of Administrative Questionnaire
|
| | | | | | | | | |
| | | Other Instructions: | |
| | | Ref. Loan No.: | |
| | | Attention: | |
| | | | | | | | | |
Signature Block: (include name of authorized signer and title) |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | | | | | | |
Administration Contact: |
| If you have more than one administration or credit contact, please check this box and attach a separate sheet. |
| Name: | | | |
| Phone: | | | |
| Fax: | | | |
| e-mail: | | | |
| | | | | | | | | |
Credit Contact/Loan Officer: |
| Name: | | | |
| Phone: | | | |
| Fax: | | | |
| e-mail: | | | |
| | | | | | | | | |
| |
| | | | | | | | | |
| Comments: | |
| |
| |
| |
E-2-3
Form of Administrative Questionnaire
EXHIBIT F
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of ___, 20___ (this “Joinder Agreement”), made by the [Parent][Wholly Owned Subsidiary[ies]] signatory hereto ([each a][the] “New Guarantor”) in favor of Bank of America, N.A., as administrative agent (in such capacity, together with its successors and assigns, the “Administrative Agent”) for the Lenders referred to in that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement;” the terms defined therein being used herein as therein defined), among Forest City Enterprises, Inc. (together with its permitted successors and assigns, the “Borrower”), the affiliates of the Borrower identified therein as Guarantors, the Lenders party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
1. [The][Each] New Guarantor, hereby acknowledges that it has received and reviewed a copy of the Credit Agreement, and acknowledges and agrees to:
(a)join the Credit Agreement as a Guarantor, as indicated with its signature below;
(b)be bound by all covenants, agreements and acknowledgments attributable to a Guarantor in the Credit Agreement; and
(c)perform all obligations and duties required of it by the Credit Agreement.
2. [The][Each] New Guarantor represents and warrants that the representations and warranties contained in Article V of the Credit Agreement as they relate to such New Guarantor or which are contained in any certificate furnished by or on behalf of such New Guarantor are true and correct on the date hereof.
3. The address, taxpayer identification number and jurisdiction of organization of [each][the] New Guarantor is set forth in Annex I to this Joinder Agreement.
4. This Joinder Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single agreement.
5. Except as expressly supplemented hereby, the Credit Agreement and the Guaranty shall remain in full force and effect.
6. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
F-1
Form of Joinder Agreement
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly executed and delivered by its proper and duly authorized officer as of the day and year first above written.
[NEW GUARANTOR[S]],
as [the][a] New Guarantor
By:__________________________
Name:
Title:
[BORROWER],
as the Borrower
By:__________________________
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_________________________
Name:
Title:
F-2
Form of Joinder Agreement
ANNEX I
TO JOINDER AGREEMENT
|
| | | |
Name of Guarantor |
Address |
Taxpayer ID | Jurisdiction of Organization |
| | | |
| | | |
F-3
Form of Joinder Agreement
EXHIBIT G-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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[NAME OF LENDER] |
By: _______________________ |
| Name: ________________________ |
| Title: ________________________ |
Date: ________ __, 20[ ]
G-1
Form of U.S. Tax Compliance Certificate
EXHIBIT G-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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[NAME OF PARTICIPANT] |
By: _______________________ |
| Name: ________________________ |
| Title: ________________________ |
Date: ________ __, 20[ ]
G-2
Form of U.S. Tax Compliance Certificate
EXHIBIT G-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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[NAME OF PARTICIPANT] |
By: _______________________ |
| Name: ________________________ |
| Title: ________________________ |
Date: ________ __, 20[ ]
G-3
Form of U.S. Tax Compliance Certificate
EXHIBIT G-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
G-5
Form of U.S. Tax Compliance Certificate
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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[NAME OF LENDER] |
By: _______________________ |
| Name: ________________________ |
| Title: ________________________ |
Date: ________ __, 20[ ]
G-5
Form of U.S. Tax Compliance Certificate
EXHIBIT H
FORM OF SOLVENCY CERTIFICATE
I, the undersigned, [chief financial officer][chief accounting officer] of Forest City Enterprises, Inc. (the “Borrower”), DO HEREBY CERTIFY on behalf of the Loan Parties and not in my individual capacity that:
1. This certificate is furnished pursuant to Section 4.01(a)(viii) of the Credit Agreement (as in effect on the date of this certificate; the capitalized terms defined therein being used herein as therein defined), dated as of November 17, 2015 among the Borrower, certain affiliates of the Borrower identified therein as Guarantors, the Lenders party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
2. After giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), (a) the fair value of the property of the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, is greater than the total amount of liabilities, including contingent liabilities, of the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, (b) the present fair salable value of the assets of the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, is not less than the amount that will be required to pay the probable liability of the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, on their debts as they become absolute and matured, (c) the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, do not intend to, and do not believe that they will, incur debts or liabilities beyond the ability of the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, to pay such debts and liabilities as they mature, (d) the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which the property of the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, would constitute an unreasonably small capital, and (e) the Loan Parties and their Subsidiaries, taken as a whole on a consolidated basis, are able to pay their debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
[Signature Page Follows]
H-1
Form of Solvency Certificate
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate as of ______________ ___, 20___.
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FOREST CITY ENTERPRISES, INC.
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
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H-2
Form of Solvency Certificate
EXHIBIT I
FORM OF DESIGNATION NOTICE
TO: Bank of America, N.A., as Administrative Agent
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RE: | Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement;” the terms defined therein being used herein as therein defined), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers. |
DATE: [Date]
______________________________________________________________________________
[Name of Cash Management Bank/Hedge Bank] hereby notifies you, pursuant to the terms of the Credit Agreement, that it meets the requirements of a [Cash Management Bank/Hedge Bank] under the terms of the Credit Agreement and is a [Cash Management Bank/Hedge Bank] under the Credit Agreement and the other Loan Documents.
Delivery of an executed counterpart of a signature page of this notice by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this notice.
A duly authorized officer of the undersigned has executed this notice as of the day and year set forth above.
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[NAME OF CASH MANAGEMENT BANK/ |
HEDGE BANK],
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as a [Cash Management Bank/Hedge Bank] |
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
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I-1
Form of Designation Notice
ACKNOWLEDGED:
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[BORROWER]
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
I-2
Form of Designation Notice
EXHIBIT J
FORM OF PREPAYMENT NOTICE
Date: ___________, _____
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To: | Bank of America, N.A., as Administrative Agent |
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November 17, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Forest City Enterprises, Inc., an Ohio corporation (the “Borrower”), certain affiliates of the Borrower from time to time party thereto, as Guarantors, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America, N.A. and PNC Bank, National Association, as Swing Line Lenders and L/C Issuers.
The undersigned hereby notifies you that it intends to prepay Committed Loans [in whole][in part] as follows:
1. On ________________________________ (a Business Day).
2. In the amount of $____________________. 1
3. Comprised of ________________________.
[Type of Committed Loan to be prepaid]
4. For Eurodollar Rate Loans: with an Interest Period of _____ months.
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[BORROWER]
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By:_________________________________ |
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Name: ______________________________ |
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Title: _______________________________ |
1 Minimum prepayment amount of $1,000,000 for Eurodollar Rate Loans and $500,000 Base Rate Committed Loans
J-1
Form of Prepayment Notice
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (“Agreement”) is made and entered into as of the ___ day of __________, 20__, by and between Forest City Realty Trust, Inc., a Maryland corporation (the “Company”), and ________________________ (“Indemnitee”).
WHEREAS, at the request of the Company, Indemnitee currently serves as [a director] [and] [an officer] of the Company and may, therefore, be subjected to claims, suits or proceedings arising as a result of such service;
WHEREAS, as an inducement to Indemnitee to serve or continue to serve in such capacity, the Company has agreed to indemnify Indemnitee and to advance expenses and costs incurred by Indemnitee in connection with any such claims, suits or proceedings, to the maximum extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their agreement regarding indemnification and advance of expenses in connection with any such claims, suits or proceedings.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1.Definitions. For purposes of this Agreement:
(a) “Change in Control” means a change in control of the Company occurring after the Effective Date of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if, after the Effective Date, (i) any “person” (as such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Exchange Act), other than a Permitted Holder, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 15% or more of the combined voting power of all of the Company’s then-outstanding securities entitled to vote generally in the election of directors without the prior approval of at least two-thirds of the members of the Board of Directors in office immediately prior to such person’s attaining such percentage interest; (ii) the Company is a party to a merger, conversion, consolidation, sale of assets, plan of liquidation or other reorganization not approved by at least two-thirds of the members of the Board of Directors then in office, as a consequence of which members of the Board of Directors in office immediately prior to such transaction or event constitute less than a majority of the Board of Directors thereafter; or (iii) at any time, a majority of the members of the Board of Directors are not individuals (A) who were directors as of the Effective Date or (B) whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by the affirmative vote of at least two-thirds of the directors then in office who were directors as of the Effective Date or whose election or nomination for election was previously so approved.
(b) “Corporate Status” means the status of a person as a present or former director, officer, employee or agent of the Company or as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise in each case where such person is or was serving in such capacity at the request of the Company. As a clarification and without limiting the circumstances in which Indemnitee may be serving at the request of the Company, service by Indemnitee shall be deemed to be at the request of the Company: (i) if Indemnitee serves or served as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any corporation, partnership, limited liability company, joint venture, trust or other enterprise (1) of which a majority of the voting power or equity interest is or was owned directly or indirectly by the Company or (2) the management of which is or was controlled directly or indirectly by the Company or (ii) if, as a result of Indemnitee’s service to the Company or any of its affiliated entities, Indemnitee is subject to duties imposed by, or required to perform services for, an employee benefit plan or its participants or beneficiaries, including as a deemed fiduciary thereof.
(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification and/or advance of Expenses is sought by Indemnitee.
(d) “Effective Date” means the date set forth in the first paragraph of this Agreement.
(e) “Expenses” means any and all reasonable and out-of-pocket attorneys’ fees and costs, retainers, court costs, arbitration and mediation costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties and any other disbursements or expenses incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in or otherwise participating in a Proceeding. Expenses shall also include Expenses incurred in connection with any appeal resulting from any Proceeding, including, without limitation, the premium, security for and other costs relating to any cost bond, supersedeas bond or other appeal bond or its equivalent.
(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements), or (ii) any other party to or participant or witness in the Proceeding giving rise to a claim for indemnification or advance of Expenses hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(g) “Permitted Holder” means any “person” (as such term is used in Sections 3(a)(9), 13(d) and 14(d) of the Exchange Act) that, as of the Effective Date, is the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 15% or more of the combined voting power of all of the Company’s then-outstanding securities entitled to vote generally in the election of directors until such time as such person no longer owns 15% or more of the combined voting power of all of the Company’s then-outstanding securities entitled to vote generally in the election of directors.
(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, claim, demand, discovery request or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative (formal or informal) nature, including any appeal therefrom, except one pending or completed on or before the Effective Date, unless otherwise specifically agreed in writing by the Company and Indemnitee. If Indemnitee reasonably believes that a given situation may lead to or culminate in the institution of a Proceeding, such situation shall also be considered a Proceeding.
Section 2. Services by Indemnitee. Indemnitee serves in the capacity or capacities set forth in the first WHEREAS clause above. However, this Agreement shall not impose any independent obligation on Indemnitee or the Company to continue Indemnitee’s service to the Company. This Agreement shall not be deemed an employment contract between the Company (or any other entity) and Indemnitee.
Section 3. General. The Company shall indemnify, and advance Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Maryland law in effect on the Effective Date and as amended from time to time; provided, however, that no change in Maryland law shall have the effect of reducing the benefits available to Indemnitee hereunder based on Maryland law as in effect on the Effective Date. The rights of Indemnitee provided in this Section 3 shall include, without limitation, the rights set forth in the other sections of this Agreement, including any additional indemnification permitted by the Maryland General Corporation Law (the “MGCL”), including, without limitation, Section 2-418 of the MGCL.
Section 4. Standard for Indemnification. If, by reason of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall indemnify, defend and hold harmless Indemnitee against all judgments, penalties, fines and amounts paid in settlement and all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any such Proceeding unless it is established that (a) the act or omission of Indemnitee was material to the matter giving rise to the Proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty, (b) Indemnitee actually received an improper personal benefit in money, property or services or (c) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
Section 5. Certain Limits on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 6), Indemnitee shall not be entitled to:
(a) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable to the Company;
(b) indemnification hereunder if Indemnitee is adjudged, in a final adjudication of the Proceeding not subject to further appeal, to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status; or
(c) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the Company’s charter or Bylaws, a resolution of the stockholders entitled to vote generally in the election of directors or of the Board of Directors or an agreement approved by the Board of Directors to which the Company is a party expressly provide otherwise.
Section 6. Court-Ordered Indemnification. Notwithstanding any other provision of this Agreement, a court of appropriate jurisdiction, upon application of Indemnitee and such notice as the court shall require, may order indemnification of Indemnitee by the Company in the following circumstances:
(a) if such court determines that Indemnitee is entitled to reimbursement under Section 2-418(d)(1) of the MGCL, the court shall order indemnification, in which case Indemnitee shall be entitled to recover the Expenses of securing such reimbursement; or
(b) if such court determines that Indemnitee is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not Indemnitee (i) has met the standards of conduct set forth in Section 2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an improper personal benefit under Section 2-418(c) of the MGCL, the court may order such indemnification as the court shall deem proper without regard to any limitation on such court-ordered indemnification contemplated by Section 2-418(d)(2)(ii) of the MGCL.
Section 7. Indemnification for Expenses of an Indemnitee Who is Wholly or Partially Successful. Notwithstanding any other provision of this Agreement, and without limiting any such provision, to the extent that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, made a party to (or otherwise becomes a participant in) any Proceeding and is successful, on the merits or otherwise, in the defense of such Proceeding, the Company shall indemnify Indemnitee for all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee under this Section 7 for all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each such claim, issue or matter on which the Indemnitee is successful, allocated on a reasonable and proportionate basis with each claim, issue or matter on which the Indemnitee is unsuccessful. For purposes of this Section 7 and, without limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
Section 8. Advance of Expenses for Indemnitee. If, by reason of Indemnitee’s Corporate Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall, without requiring a preliminary determination of Indemnitee’s ultimate entitlement to indemnification hereunder, advance all Expenses incurred by or on behalf of Indemnitee in connection with such Proceeding. The Company shall make such advance within ten days after the receipt by the Company of a statement or statements from the Indemnitee requesting such advance from time to time, whether the request is made prior to or after final disposition of such Proceeding. Advanced Expenses may be in the form of, in the reasonable discretion of Indemnitee (but without duplication), (a) payment of such Expenses directly to third parties on behalf of Indemnitee, (b) advance of funds to Indemnitee in an amount sufficient to pay such Expenses or (c) reimbursement to Indemnitee for Indemnitee’s payment of such Expenses. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written affirmation by Indemnitee and a written undertaking by or on behalf of Indemnitee, in substantially the form attached hereto as Exhibit A or in such form as may be required under applicable law as in effect at the time of the execution thereof. To the extent that Expenses advanced to Indemnitee do not relate to a specific claim, issue or matter in the Proceeding, such Expenses shall be allocated on a reasonable and proportionate basis. The undertaking required by this Section 8 shall be an unlimited general obligation by or on behalf of Indemnitee and shall be accepted without reference to Indemnitee’s financial ability to repay such advanced Expenses and without any requirement to post security therefor.
Section 9. Indemnification and Advance of Expenses as a Witness or Other Participant. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is or may be, by reason of Indemnitee’s Corporate Status, made a witness or otherwise asked to participate in any Proceeding, including through any deposition, interview, interrogatory or document or similar request, whether instituted by the Company or any other person, and to which Indemnitee is not a party, Indemnitee shall be advanced and indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith within ten days after the receipt by the Company of a statement or statements from the Indemnitee requesting any such advance or indemnification from time to time, whether the request is made prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee. In connection with any such advance of Expenses, the Company may require Indemnitee to provide an undertaking and affirmation substantially in the form attached hereto as Exhibit A.
Section 10. Procedure for Determination of Entitlement to Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary or appropriate to determine whether and to what extent Indemnitee is entitled to indemnification. Indemnitee may submit one or more such requests from time to time and at such time(s) as Indemnitee deems appropriate in
Indemnitee’s sole discretion. The officer of the Company receiving any such request from Indemnitee shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a) above, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made in the specific case: (i) if a Change in Control has occurred, by Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval shall not be unreasonably withheld or delayed; or (ii) if a Change in Control has not occurred, (A) by a majority vote of the Disinterested Directors or, by the majority vote of a group of Disinterested Directors designated by the Disinterested Directors to make the determination, (B) if Independent Counsel has been selected by the Board of Directors in accordance with Section 2-418(e)(2)(ii) of the MGCL and approved by the Indemnitee, which approval shall not be unreasonably withheld or delayed, by Independent Counsel, in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, the Company shall make payment to Indemnitee within ten days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary or appropriate to such determination in the discretion of the Board of Directors or Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(b). Any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company shall indemnify and hold Indemnitee harmless therefrom.
(c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is appointed under this Section.
Section 11. Presumptions and Effect of Certain Proceedings.
(a) In making any determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and the Company shall have the burden of overcoming that presumption in connection with the making of any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, upon a plea of nolo contendere or its equivalent, or entry of an order of probation prior to judgment, does not create a presumption that Indemnitee did not meet the requisite standard of conduct described herein for indemnification.
(c) The knowledge and/or actions, or failure to act, of any other director, officer, employee or agent of the Company or any other director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
Section 12. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 10(b) of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely made pursuant to Sections 8 or 9 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(b) of this Agreement within 60 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 7 or 9 of this Agreement within ten days after receipt by the Company of a written request therefor, or (v) payment of indemnification pursuant to any other section of this Agreement or the charter or Bylaws of the Company is not made within ten days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court located in the State of Maryland, or in any other court of competent jurisdiction, or in an arbitration conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association, of Indemnitee’s entitlement to indemnification or advance of Expenses. Indemnitee shall commence a proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply to a proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 7 of this Agreement. Except as set forth herein, the provisions of Maryland law (without regard to its conflicts of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In any judicial proceeding or arbitration commenced pursuant to this Section 12, Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as applicable, under this Agreement and the Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advance of Expenses, as applicable. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 12, Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 8 of this Agreement until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed). The Company shall, to the fullest extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all of the provisions of this Agreement.
(c) If a determination shall have been made pursuant to Section 10(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination
in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification that was not disclosed in connection with the determination.
(d) In the event that Indemnitee is successful in seeking, pursuant to this Section 12, a judicial adjudication of or an award in arbitration to enforce Indemnitee’s rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company for, any and all Expenses actually and reasonably incurred by Indemnitee in such judicial adjudication or arbitration. If it shall be determined in such judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advance of Expenses sought, the Expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.
(e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be charged for judgments under the Courts and Judicial Proceedings Article of the Annotated Code of Maryland for amounts which the Company pays or is obligated to pay for the period (i) commencing with either the tenth day after the date on which the Company was requested to advance Expenses in accordance with Sections 8 or 9 of this Agreement or the 60th day after the date on which the Company was requested to make the determination of entitlement to indemnification under Section 10(b) of this Agreement, as applicable, and (ii) ending on the date such payment is made to Indemnitee by the Company.
Section 13. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly in writing upon being served with any summons, citation, subpoena, complaint, indictment, request or other document relating to any Proceeding which may result in the right to indemnification or the advance of Expenses hereunder and shall include with such notice a description of the nature of the Proceeding and a summary of the facts underlying the Proceeding. The failure to give any such notice shall not disqualify Indemnitee from the right to indemnification or the advance of Expenses or otherwise affect in any manner any right of Indemnitee under this Agreement unless the Company’s ability to defend the Indemnitee in such Proceeding or to obtain proceeds under any insurance policy is materially and adversely prejudiced thereby, and then only to the extent the Company is thereby actually so prejudiced.
(b) Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c) below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any such decision to defend within 15 days following receipt of notice of any such Proceeding under Section 13(a) above. The Company shall not, without the prior written consent of Indemnitee, which shall not be unreasonably withheld or delayed, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee, or (iii) would impose any Expense, judgment, fine, penalty
or limitation on Indemnitee that is not otherwise covered by the Company. This Section 13(b) shall not apply to a Proceeding brought by Indemnitee under Section 12 of this Agreement.
(c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which approval shall not be unreasonably withheld or delayed, that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Proceeding, (ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which approval shall not be unreasonably withheld or delayed, that an actual or apparent conflict of interest or potential conflict of interest exists between Indemnitee and the Company, or (iii) if the Company fails to assume the defense of such Proceeding in a timely manner, Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or delayed, at the expense of the Company. In addition, if the Company fails to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, subject to the prior approval of the Company, which approval shall not be unreasonably withheld or delayed, at the expense of the Company (subject to Section 12(d) of this Agreement), to represent Indemnitee in connection with any such matter.
Section 14. Non-Exclusivity; Survival of Rights; Subrogation.
(a) The rights of indemnification and advance of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the charter or Bylaws of the Company, any agreement or a resolution of the stockholders entitled to vote generally in the election of directors or of the Board of Directors, or otherwise. Unless consented to in writing by Indemnitee, no amendment, alteration or repeal of the charter or Bylaws of the Company, this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal, regardless of whether a claim with respect to such action or inaction is raised prior or subsequent to such amendment, alteration or repeal. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right or remedy shall be cumulative and in addition to every other right or remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of any right or remedy hereunder, or otherwise, shall not prohibit the concurrent assertion or employment of any other right or remedy.
(b) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
Section 15. Insurance.
(a) The Company will use commercially reasonable efforts to acquire directors and officers liability insurance, on terms and conditions deemed appropriate by the Board of Directors, with the advice of counsel, covering Indemnitee or any claim made against Indemnitee by reason of Indemnitee’s Corporate Status and covering the Company for any indemnification or advance of Expenses made by the Company to Indemnitee for any claims made against Indemnitee by reason of Indemnitee’s Corporate Status. In the event of a Change in Control, the Company shall maintain in force any and all directors and officers liability insurance policies that were maintained by the Company immediately prior to the Change in Control for a period of six years with the insurance carrier or carriers and through the insurance broker in place at the time of the Change in Control; provided, however, (i) if the carriers will not offer the same policy and an expiring policy needs to be replaced, a policy substantially comparable in scope and amount shall be obtained and (ii) if any replacement insurance carrier is necessary to obtain a policy substantially comparable in scope and amount, such insurance carrier shall have an AM Best rating that is the same or better than the AM Best rating of the existing insurance carrier; provided, further, however, in no event shall the Company be required to expend in the aggregate in excess of 300% of the annual premium or premiums paid by the Company for directors and officers liability insurance in effect on the date of the Change in Control. In the event that 300% of the annual premium paid by the Company for such existing directors and officers liability insurance is insufficient for such coverage, the Company shall spend up to that amount to purchase such lesser coverage as may be obtained with such amount.
(b) Without in any way limiting any other obligation under this Agreement, the Company shall indemnify Indemnitee for any payment by Indemnitee which would otherwise be indemnifiable hereunder arising out of the amount of any deductible or retention and the amount of any excess of the aggregate of all judgments, penalties, fines, settlements and Expenses incurred by Indemnitee in connection with a Proceeding over the coverage of any insurance referred to in Section 15(a). The purchase, establishment and maintenance of any such insurance shall not in any way limit or affect the rights or obligations of the Company or Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and the Indemnitee shall not in any way limit or affect the rights or obligations of the Company under any such insurance policies. If, at the time the Company receives notice from any source of a Proceeding to which Indemnitee is a party or a participant (as a witness or otherwise), the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies.
(c) The Indemnitee shall cooperate with the Company or any insurance carrier of the Company with respect to any Proceeding.
Section 16. Coordination of Payments. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable as Expenses hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
Section 17. Contribution. If the indemnification provided by this Agreement is unavailable in whole or in part and may not be paid to Indemnitee for any reason, other than for failure to satisfy the standard of conduct set forth in Section 4 or due to the provisions of Section 5, then, with respect to any Proceeding in which the Company is jointly liable with Indemnitee (or would be joined in such Proceeding), to the fullest extent permissible under applicable law, the Company, in lieu of indemnifying and holding harmless Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for Expenses, judgments, penalties, fines and/or amounts paid or to be paid in settlement, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.
Section 18. Reports to Stockholders. To the extent required by the MGCL, the Company shall report in writing to its stockholders the payment of any amounts for indemnification of, or advance of Expenses to, Indemnitee under this Agreement arising out of a Proceeding by or in the right of the Company with the notice of the meeting of stockholders of the Company next following the date of the payment of any such indemnification or advance of Expenses or prior to such meeting.
Section 19. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate on the later of (i) the date that Indemnitee shall have ceased to serve as a director, officer, employee or agent of the Company or as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving in such capacity at the request of the Company and (ii) the date that Indemnitee is no longer subject to any actual or possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement).
(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of any other foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving in such capacity at the request of the Company, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
(c) The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
(d) The Company and Indemnitee agree that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult to prove, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which Indemnitee may be entitled. Indemnitee shall further be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertakings in connection therewith. The Company acknowledges that, in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company hereby waives any such requirement of such a bond or undertaking.
Section 20. Severability. If any provision or provisions of this Agreement shall be held to be invalid, void, illegal or otherwise unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
Section 21. Identical Counterparts. This Agreement may be executed in one or more counterparts (delivery of which may be by facsimile, or via e-mail as a portable document format (.pdf) or other electronic format), each of which will be deemed to be an original, and it will not be necessary in making proof of this Agreement or the terms of this Agreement to produce or account for more than one such counterpart. One such counterpart signed by the party against whom enforceability is sought shall be sufficient to evidence the existence of this Agreement.
Section 22. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
Section 23. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor, unless otherwise expressly stated, shall such waiver constitute a continuing waiver.
Section 24. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, on the day of such delivery, or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:
(a) If to Indemnitee, to the address set forth on the signature page hereto.
(b) If to the Company, to:
Forest City Realty Trust, Inc.
Terminal Tower
50 Public Square, Suite 1100
Cleveland, Ohio 44113
Attention: General Counsel
or to such other address as may have been furnished in writing to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
Section 25. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maryland, without regard to its conflicts of laws rules.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
COMPANY:
FOREST CITY REALTY TRUST, INC.
By: ________________________________
Name:
Title:
INDEMNITEE
____________________________________
Name:
Address:
EXHIBIT A
AFFIRMATION AND UNDERTAKING TO REPAY EXPENSES ADVANCED
To: The Board of Directors of Forest City Realty Trust, Inc.
Re: Affirmation and Undertaking
Ladies and Gentlemen:
This Affirmation and Undertaking is being provided pursuant to that certain Indemnification Agreement dated the _____ day of ______________, 20____, by and between Forest City Realty Trust, Inc., a Maryland corporation (the “Company”), and the undersigned Indemnitee (the “Indemnification Agreement”), pursuant to which I am entitled to advance of Expenses in connection with [Description of Proceeding] (the “Proceeding”).
Terms used herein and not otherwise defined shall have the meanings specified in the Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by reason of alleged actions or omissions by me in such capacity. I hereby affirm my good faith belief that at all times, insofar as I was involved as [a director] [and] [an officer] of the Company, in any of the facts or events giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate dishonesty, (2) did not receive any improper personal benefit in money, property or services and (3) in the case of any criminal proceeding, had no reasonable cause to believe that any act or omission by me was unlawful.
In consideration of the advance by the Company for Expenses incurred by me in connection with the Proceeding (the “Advanced Expenses”), I hereby agree that if, in connection with the Proceeding, it is established that (1) an act or omission by me was material to the matter giving rise to the Proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty, or (2) I actually received an improper personal benefit in money, property or services or (3) in the case of any criminal proceeding, I had reasonable cause to believe that the act or omission was unlawful, then I shall promptly reimburse the portion of the Advanced Expenses relating to the claims, issues or matters in the Proceeding as to which the foregoing findings have been established.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___ day of ____________________, 20____.
Name: _____________________________
January 1, 2016
David J. LaRue
Forest City Employer, LLC
50 Public Square
Terminal Tower, Suite 1100
Cleveland, Ohio 44113
Re: Employment Agreement
Dear David:
This letter is to affirm our intent to have you serve as an employee of Forest City Employer, LLC (the “Company”) effective as of January 1, 2016 (the “Effective Date”). The following letter agreement (the “Agreement”) outlines the terms and conditions of your employment.
The Company agrees to employ you and you agree to such employment with the Company, upon the terms and subject to the conditions set forth in this Agreement, for the period beginning on the Effective Date and ending on the earlier of (i) the Date of Termination (as defined below), or (ii) the first anniversary of the Effective Date. Unless terminated prior to such date, the Term shall be automatically renewed for successive one-year periods on the terms and subject to the conditions of this Agreement, commencing on the first anniversary of the Effective Date and on each anniversary date thereafter, unless either the Company or you gives the other party written notice, at least 180 days prior to the end of such initial or extended Term, of its or your intention not to renew this Agreement or your employment. Any reference to the “Term” of this Agreement shall include the original term and any extension. As provided for herein, you agree to also perform services for Forest City Realty Trust, Inc. (“Forest City”) and its affiliates (Forest City, the Company, and any of their respective affiliates or subsidiaries are referred to herein collectively as the “Forest City Group”) without receiving additional consideration for such services.
You agree to serve as an employee of the Company. In addition, you agree to serve (i) as President and Chief Executive Officer of Forest City, (ii) on the Board of Directors of Forest City (the “Board”) at its discretion and subject to re-election by the shareholders of Forest City, and (iii) in such other position or positions within the Forest City Group as may be reasonably requested by the Company or any other member of the Forest City Group, in each case without any additional consideration. You will be responsible for the general management of the affairs of the Forest City Group and shall perform all duties incidental to such positions which may be required by the Board. You will report directly to the Board. During the Term, you shall perform your duties faithfully, honestly, diligently and
conscientiously subject to the reasonable and lawful directions of the Board, and in accordance with the policies and procedures generally applicable to employees of the Company and the other members of the Forest City Group. You acknowledge and agree to comply with the stock ownership guidelines maintained by Forest City applicable to your position, as the same may be amended from time to time.
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3. | Compensation and Benefits |
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a) | Base Salary. During the Term, the Company will pay you an annualized base salary (“Annual Base Salary”) at a rate of not less than Six Hundred Seventy Five Thousand Dollars ($675,000), payable in regular installments in accordance with the Company’s customary payroll practices. During the Term, the Annual Base Salary shall be reviewed by the Compensation Committee of Forest City (the “Compensation Committee”), and adjusted, based upon your performance and the Forest City Group’s performance and competitive with industry standards. |
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b) | Bonus. For each fiscal year during the Term, you will participate in the Company’s Short-Term Incentive Plan (the “STIP”) and the Long-Term Incentive Plan (the “LTIP”) under terms and conditions established by the Board or the Compensation Committee from time to time. |
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c) | Vacation and Benefits. During the Term, you will participate in the Company’s paid time-off program and other Company benefits consistent with applicable policies for the executive officers of Forest City, including but not limited to benefits substantially comparable to those provided to you by Forest City Enterprises, Inc. immediately prior to the Effective Date. |
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4. | Termination of Employment |
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a) | Death and Disability. Your employment will terminate automatically upon the date of your death. If the Company determines in good faith that your Disability (as defined below) has occurred during the Term, it may give to you written notice of its intention to terminate your employment; provided that such notice is provided no later than 180 days following your first day of Disability. In such event, your employment will terminate effective on the 30th day after receipt of such notice by you (the “Disability Effective Date”), provided that, within the 30 days after such receipt, you shall not have returned to full-time performance of your duties. For purposes of this Agreement, “Disability” shall mean the inability of you to perform the essential duties of the position held by you by reason of any medically determined physical or mental impairment that lasts for 150 consecutive days in any one-year period, all as determined by an independent licensed physician mutually acceptable to the Company and you or your legal representative. |
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b) | Cause. Your employment with the Company may be terminated with or without Cause. For purposes of this Agreement, “Cause” shall mean: (i) your conviction, a guilty plea or plea of nolo contendere by you for (x) any crime involving dishonesty |
with respect to the Forest City Group, or (y) any felony; or (ii) a material breach by you of the Code of Legal and Ethical Conduct or other written Forest City Group policies, your obligations under this Agreement, or any laws material to the conduct of the Forest City Group’s business. The cessation of your employment will not be deemed to be for Cause unless and until (A) there shall have been delivered to you a copy of a resolution duly adopted by majority vote of the Compensation Committee (after reasonable notice is provided to you that specifically identifies the manner and sets forth the specific acts of which the Compensation Committee believes that you may be guilty of the conduct described in subparagraph (i) through and including (ii), and you are given an opportunity, together with counsel, to be heard before the Compensation Committee), finding that, in the good faith opinion of the majority of the Compensation Committee, you are guilty of the conduct described in subparagraph (i) through and including (ii) above, and (B) you shall fail to cure such conduct (if curable) within a reasonable time period established by the Compensation Committee of not less than thirty (30) calendar days after your receipt of such notice.
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c) | Good Reason. Your employment with the Company may be terminated by you with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean any of the following without your consent: (i) a material reduction of your duties or responsibilities set forth in Section 2, including any change in your officer status; (ii) a material reduction, other than across-the-board reductions that apply to other named executive officers (as set forth in Forest City’s most recently-filed proxy statement) of your Annual Base Salary, STIP target opportunity, LTIP target opportunity or total direct compensation opportunity (provided that for purposes of this clause (ii) a material reduction shall be any reduction of greater than 10% occurring during the Term); (iii) a material change in geographic location at which you must perform services under this Agreement from the Company’s offices at which you were principally employed (the Company has determined that a relocation of more than fifty (50) miles would constitute such a material change); or (iv) a material breach by the Company or Forest City of this Agreement. A termination of your employment by you shall not be deemed to be for Good Reason unless (x) you give notice to the Company of the existence of the event or condition constituting Good Reason within 90 days after you have knowledge that such event or condition initially occurs or exists, (y) the Company fails to cure such event or condition within 30 days after receiving such written notice (or, if earlier, the last day of the Term), and (z) your Date of Termination (as defined below) occurs not later than 150 days after such event or condition initially occurs or exists (or, if earlier, the last day of the Term). |
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d) | Notice of Termination. Any termination by the Company for Cause, or by you for Good Reason, shall be communicated by a written notice to the other party which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of your employment under the provision so indicated and (iii) if the Date of Termination is other than the date of receipt of |
such notice, specifies the termination date (which date shall be not more than 30 days after the giving of such notice). The failure by the Company or you to set forth in the notice of termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or you, respectively, hereunder or preclude the Company or you, respectively, from asserting such fact or circumstance in enforcing the Company’s or your rights hereunder.
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e) | Date of Termination. “Date of Termination” means (i) if your employment is terminated by the Company for Cause, or by you for Good Reason, the date of receipt of the notice of termination or any later date specified within 30 days of such notice, as the case may be, (ii) if your employment is terminated by the Company other than for Cause or Disability, or if you voluntarily resign without Good Reason, the date on which the terminating party notifies the other party that such termination shall be effective, provided that on a voluntary resignation without Good Reason, the Company may, in its sole discretion, make such termination effective on any date it elects in writing, between the date of the notice and the proposed date of termination specified in the notice, (iii) if your employment is terminated by reason of death, the date of your death, (iv) if your employment is terminated by the Company due to Disability, the Disability Effective Date, or (v) if your employment is terminated at the end of the Term. |
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a) | Disability; Other than for Cause or Good Reason. If, during the Term, the Company terminates your employment for Disability or other than for Cause, or if you terminate your employment for Good Reason: |
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i. | The Company shall pay to you the sum of: (A) the portion of your Annual Base Salary earned through the Date of Termination, to the extent not previously paid; (B) the amount of any incentive compensation under the STIP or LTIP that has been earned by you for a completed fiscal year or other measuring period preceding the Date of Termination, but has not yet been paid to you; and (C) any accrued paid time-off, to the extent not previously paid (the sum is referred to as the “Accrued Benefits”). Unless subject to a valid deferral election made pursuant to the terms of the Company’s deferred compensation plan, the Accrued Benefits described in clauses (A) and (C) shall be paid in a single lump sum within 30 days after the Date of Termination and the Accrued Benefits described in Clause (B) shall be paid in a single lump sum within 30 days after the Date of Termination (but in no event later than two and one half months following the end of the fiscal year or other measuring period preceding the Date of Termination). |
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ii. | The Company shall pay or provide to you the severance benefits described in this Section 5(a)(ii) if and only if you sign and do not revoke a release of claims agreement in the form attached as Exhibit A, with such changes as the Company may determine to be required or reasonably advisable in order |
to make the release enforceable and otherwise compliant with applicable law (the “Release”), and the Release becomes effective and irrevocable no later than the 60th day following your Date of Termination (the “Release Deadline”). If these conditions are not satisfied, then you will forfeit any right to severance payments under this Section 5(a)(ii). To become effective and irrevocable, the Release must be executed by you and any revocation periods (as required by statute, regulation, or otherwise) must have expired without you having revoked the Release. The severance benefits under this Section 5(a)(ii) are as follows:
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(A) | Two times the sum of (I) your Annual Base Salary, (II) the average of the annual incentives payable to you under the STIP for the last three full fiscal years prior to the Date of Termination, (III) an amount equal to 12 monthly long-term care premiums, based on the level of coverage in effect for you immediately prior to the Date of Termination, and (IV) an amount equal to your annual health care subsidy payment as in effect immediately prior to the Date of Termination. The Company shall pay this amount within 10 days after the date that the Release becomes effective and irrevocable; provided, however, that if the Release Deadline could occur in the calendar year immediately following your Date of Termination, then the amount shall be paid within 10 days after the date of the Release Deadline (even if the Release has become effective and irrevocable in accordance with its terms prior to that date). |
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(B) | The annual incentive that would have been payable to you under the STIP for the fiscal year during which the Date of Termination occurs, determined as if you had remained employed for the entire year (and any additional period of time necessary to be eligible to receive the annual incentive for the year), based on actual performance during the entire fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), pro-rated based on the number of days in Forest City’s fiscal year through (and including) your Date of Termination. The pro-rated annual incentive shall be payable in a single lump sum at the same time that payments are made to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP but in no event later than two and one-half months after the fiscal year during which the Date of Termination occurs), or as otherwise may be provided in a valid deferral election made pursuant to the terms of the Company’s deferred compensation plan. |
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(C) | If and only if the Date of Termination occurs in the second half of a performance period under the LTIP, the cash LTIP and performance shares that would have been payable to you for that particular performance period (and only that performance period), determined as if you had remained employed for the entire performance period (and any additional period of time necessary to be eligible to receive payment for the performance period), based on actual performance during the entire performance period and without regard to any discretionary adjustments that have the effect of reducing the amount of payment (other than discretionary adjustments applicable to all senior executives who did not terminate employment), pro-rated based on the number of days in the performance period through (and including) your Date of Termination. The cash LTIP and performance shares earned, if any, shall be payable in a single lump sum at the same time that payments are made to other participants in the LTIP for that performance period (pursuant to the terms of the LTIP but in no event later than two and one-half months after the performance period during which the Date of Termination occurs), or as otherwise may be provided in a valid deferral election made pursuant to the terms of the Company’s deferred compensation plan. |
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(D) | All outstanding and unvested Forest City restricted shares, restricted share units and stock options that are subject to a vesting schedule based solely on continued service (and specifically excluding any awards with respect to which the number of shares earned depends upon performance) shall become immediately vested and exercisable. In addition, all outstanding and vested Forest City stock options (including those that vest pursuant to the operation of the immediately preceding sentence) will remain exercisable for the full duration of their term. |
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iii. | To the extent not previously paid or provided in Section 5(a)(i) above, the Company shall pay or provide, or cause to be paid or provided, to you any other amounts or benefits required to be paid or provided or which you are eligible to receive under any plan, program, policy or practice or contract or agreement of the Forest City Group, including any benefits to which you are entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended, and the Company’s unfunded nonqualified supplemental retirement plan (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”), in accordance with the terms and normal procedures of each such plan, program, policy or practice or contract or agreement, based on accrued and vested benefits through the Date of Termination. |
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b) | Death; Cause; Other than for Good Reason; Expiration of Term. If your employment is terminated for Cause, or if you voluntarily terminate your employment without Good Reason or you die, or upon expiration of the Term due to either party’s election not to renew the then-current term, this Agreement shall terminate without further obligations to you other than the obligation to pay to you your Accrued Benefits through the Date of Termination and the Other Benefits, in each case to the extent not previously paid or provided. |
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c) | Full Settlement. Except as otherwise provided in Section 8 of this Agreement, or in the applicable compensation recovery policy maintained by Forest City from time to time, as the same may be amended to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities and Exchange Commission or applicable securities exchange, the Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Forest City Group may have against you or others. In no event shall you be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to you under any of the provisions of this Agreement and such amounts shall not be reduced whether or not you obtain other employment. If you receive payments under Section 5(a)(ii) of this Agreement, then you shall not be entitled to any other severance pay or benefits under any severance plan, program or policy of the Forest City Group, unless otherwise authorized by the Compensation Committee, in its discretion. |
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6. | Confidential Information |
You acknowledge that the information, observations and data obtained by you while employed by the Company pursuant to this Agreement, as well as those obtained by you while employed by Forest City Enterprises, Inc. or any of its subsidiaries or affiliates or any predecessor thereof prior to the date of this Agreement, concerning the business or affairs of the Forest City Group or any predecessors thereof, including, without limitation, information relating to the products, suppliers, customers, processes, costs, prices, business plans and strategies of the Forest City Group or any predecessor thereof (unless and except to the extent the foregoing become generally known to and available for use by the public other than as a result of your acts or omissions to act in violation of this Agreement) (hereinafter defined as “Confidential Information”) are the property of the Forest City Group. Therefore, you agree that both during and after the Term you will not disclose any Confidential Information without the prior written consent of the Chairman of the Board (which may be withheld for any reason or no reason) unless and except to the extent that such disclosure is (i) made in the ordinary course of your performance of your duties under this Agreement or (ii) required by any subpoena or other legal process (in which event you will give the Company prompt notice of such subpoena or other legal process in order to permit the Company to seek appropriate protective orders), and that you shall not use any Confidential Information for your own account without the prior written consent of the Chairman of the Board (which may be withheld for any reason or no reason). You will deliver
to the Company at the termination of the Term, or at any other time the Company may reasonably request, all memoranda, notes, plans, records, reports, computer files and software and other documents and data (and copies thereof) relating to the Confidential Information, or to the work product or the business of the Forest City Group which you may then possess or have under your control. Your obligations under this Section 6 are in addition to, and not in limitation of or preemption of, all other obligations of confidentiality which you may have to the Forest City Group under general legal or equitable principles, and federal, state or local law.
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7. | Non-Solicitation; Non-Competition; Non-Disparagement |
You acknowledge that the services provided under this Agreement give you the opportunity to have special knowledge of the Forest City Group, its Confidential Information, and the capabilities of individuals employed by or affiliated with the Forest City Group. You further acknowledge that interference with those business or employment relationships of the Forest City Group would cause irreparable injury to the Forest City Group. Consequently, you agree to be subject to the following restrictive covenants:
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a) | You agree that during the period commencing on the date of this Agreement and ending two years after the Date of Termination (the “Protection Period”), and provided that the Company has not materially breached its obligations under Section 5 hereof, you will not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or limited liability company or as an officer, director, shareholder, investor or employee of or in any other corporation or enterprise or otherwise, in the United States, (i) have any direct or indirect equity or other ownership interest in, or provide any financial or other assistance (whether as a lender, investor or otherwise) to, any Competitive Business (as defined below); (ii) perform services as a director, officer, manager, employee, member, consultant, representative, agent or otherwise for any Competitive Business; or (iii) otherwise engage in any Competitive Business, including, without limitation, by diverting or attempting to divert from the Forest City Group any business whatsoever by influencing or attempting to influence, or soliciting or attempting to solicit any of the customers of the Forest City Group (or any potential customers with whom the Forest City Group had business contact during the one-year period ending on the Date of Termination). For purposes of this Section 7, the term “Competitive Business” shall mean any person or entity (including any joint venture, partnership, firm, corporation, or limited liability company) that conducts a real estate business that is competitive with the commercial office, retail rental, and/or multifamily residential portfolios owned or managed by any member of the Forest City Group as of the Date of Termination (or any significant business that is being actively pursued as of the Date of Termination by any member of the Forest City Group). |
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b) | You agree that during the Protection Period, and provided that the Company has not materially breached its obligations under Section 5 hereof, you will not in any manner, directly or indirectly, through any person, firm or corporation, alone or as |
a member of a partnership or limited liability company or as an officer, director, shareholder, investor or employee of or in any other corporation or enterprise or otherwise, induce or attempt to induce any employee of any member of the Forest City Group, but only with respect to employees with whom you had direct contact while employed by the Company pursuant to this Agreement, as well as those with whom you had direct contact while employed by Forest City Enterprises, Inc. or any of its subsidiaries or affiliates or any predecessor thereof at prior to the date of this Agreement, to quit or abandon their employ.
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c) | You agree to refrain, both during and after the Term, from publishing or providing any oral or written statements about the Forest City Group, or any of such member’s officers, directors, managers, employees, agents or representatives that are disparaging, slanderous, libelous or defamatory, or that disclose private or Confidential Information about their business affairs, or that constitute an intrusion into their private lives, or that give rise to unreasonable publicity about their private lives, or that place them in a false light before the public, or that constitute a misappropriation of their name or likeness. |
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d) | Likewise, the Forest City Group shall not publish or provide any oral or written statements about you or your family that are disparaging, slanderous, libelous or defamatory, or that disclose private or confidential information about your business or personal affairs, or that constitute an intrusion into your private life, or that give rise to unreasonable publicity about your private life, or that place you or your family in a false light before the public or that constitute a misappropriation of your name or likeness. |
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e) | Nothing in this Section 7 shall prohibit you from being: (i) a shareholder in a mutual fund or a diversified investment company or (ii) an owner of not more than 5% of the outstanding equity securities of any class of a corporation or other entity which is publicly traded, provided that you have no active participation in the business of such corporation or other entity. |
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f) | You agree and acknowledge that the promises and obligations made by the Company in this Agreement (specifically including, but not limited to, the payments and benefits provided for under Section 5(a)(ii) hereof) constitute sufficient consideration for the covenants contained in this Section 7. You also agree and acknowledge that the covenants contained in this Section 7: (i) are reasonable in period, scope and area, and (ii) are necessary to protect legitimate proprietary and business interests of the Forest City Group. If, at the time of enforcement of this Section 7, a court of competent jurisdiction holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope or area permitted by law. |
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g) | Your obligations set forth in this Section 7 shall remain in full force and effect for the entire period provided herein notwithstanding the termination of your employment under this Agreement for any reason; provided that your obligations under Section 7(a) shall cease if the Company terminates your employment for Cause or you terminate your employment for Good Reason. |
Because your services are unique and because you have access to Confidential Information and work product, the parties hereto agree that the Forest City Group would be damaged irreparably in the event any of the provisions of Sections 6 and 7 hereof were not performed in accordance with their specific terms or were otherwise breached and that monetary damages would be an inadequate remedy for any such non-performance or breach. Therefore, the Company (or its successors or assigns) and other members of the Forest City Group shall be entitled, in addition to other rights and remedies existing in their favor, to an injunction or injunctions to prevent any breach or threatened breach of any of such provisions and to enforce such provisions specifically (without posting a bond or other security).
Subject to any limits on applicability contained therein, Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive and continue in full force in accordance with their terms notwithstanding any termination of the Term or this Agreement.
Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight carrier or mailed by first class mail, return receipt requested, to the recipient. Notices to you shall be sent to your most recent address provided to the Company. Notices to the Company should be sent to the Chairman of the Board and the Executive Vice President of Human Resources of Forest City, with a copy to the General Counsel of Forest City, at the address of the Company’s headquarters. Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.
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11. | Successors and Assigns; Forest City Group |
This Agreement is personal to you, and, without the prior written consent of the Company, shall not be assignable by you other than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by your legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. Except as provided in the immediately following sentence, without the prior written consent of you this Agreement shall not be assignable by the Company. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession
had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise. If a particular action is required to be taken, or a particular notice is required to be given, by the Company, and such action or notice is in fact taken by, or such notice is in fact given by, Forest City, then such action or notice shall be deemed to have been taken or given by the Company. Notwithstanding anything to the contrary contained in this Agreement, you agree that you are an employee only of the Company (or it successors or assigns, if applicable) and not an employee of any other entity or member of the Forest City Group.
The provisions of this Agreement may be amended or waived only with the prior approval of the Board and you, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant to any law or government regulation or ruling. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement. This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Ohio, without regard to conflicts of law principles.
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14. | Section 409A Compliance |
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a) | Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. It is the Company’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section |
409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code, to the maximum extent possible. If neither of these exceptions applies, then notwithstanding any provision in this Agreement to the contrary:
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i. | All amounts that would otherwise be paid or provided during the first six months following the date of termination shall instead be accumulated through and paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. |
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ii. | Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. |
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b) | For purposes of this Agreement, “termination of employment” or words or phrases to that effect shall mean a “separation from service” within the meaning of Section 409A. |
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a) | In the event any claim, dispute or controversy arises in connection with this Agreement or the interpretation or enforcement of any provision of this Agreement and the claim, dispute or controversy is not resolved within 30 days through informal, good faith negotiations between the parties, the claim, dispute or controversy shall be referred to non-binding mediation. It is agreed that any mediation shall be conducted in Cleveland, Ohio, or some other location upon mutual consent of the parties involved, at a time and place convenient to the mediator and the parties involved. |
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b) | The parties shall, in good faith, select a mediator who is mutually agreeable to both sides. Each party shall bear his or its own costs and attorneys’ fees associated with the mediation and shall share equally the responsibility for paying the mediator’s fee. |
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c) | Should any claim, dispute, or controversy remain in existence between the parties after the completion of the two-step resolution process set forth above, either party may pursue its remedies for such breach in a court of competent jurisdiction in Cleveland, Ohio. |
In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause performance of the terms and conditions of this Agreement to be unreasonable.
This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and it supersedes all prior contemporaneous agreements, representations, and understandings of the parties. Without limiting the forgoing, the Employment Agreement between you and Forest City Enterprises, Inc. dated September 22, 2011 and as amended as of January 1, 2014, is hereby superseded, replaced in its entirety and considered null and void, and your employment with Forest City Enterprises, Inc. is hereby terminated, in each case immediately prior to the Effective Date.
[Signatures on the following page]
If the foregoing correctly sets forth our understanding, please sign, date and return three originally signed copies of this Agreement to the undersigned for execution on behalf of the Company. After this Agreement has been executed by the Company and a fully-executed copy returned to you, it shall constitute a binding agreement between us.
The parties hereto have signed this Agreement as of the 18th day of November, 2015, to be effective as of the 1st day of January, 2016.
FOREST CITY EMPLOYER, LLC
By Forest City Rental Properties, LLC, the sole manager
By Forest City Enterprises, L.P., the sole manager
By Forest City Realty Trust, Inc., its general partner
/s/ CHARLES A. RATNER
By: Charles A. Ratner
Its: Chairman of the Board of Directors
ACCEPTED AND AGREED:
/s/ DAVID J. LARUE
David J. LaRue
GUARANTEE
In order to induce you to enter into the foregoing Agreement, Forest City hereby unconditionally and irrevocably guarantees to you and your estate and legal representatives that it will cause the Company to perform each and all of its obligations under this Agreement in accordance with the terms hereof. This guarantee of performance is a principal obligation of the undersigned and shall continue in full force and effect notwithstanding any amendments or modifications to this Agreement.
FOREST CITY REALTY TRUST, INC.
/s/ CHARLES A. RATNER
By: Charles A. Ratner
Its: Chairman of the Board of Directors
EXHIBIT A
GENERAL RELEASE
This General Release (this “Release”) is entered into between Forest City Employer, LLC (the “Company”) and David J. LaRue (the “Employee”) as of ________________________, 20___. The Company and the Employee agree as follows:
1. Employment Status. The Employee’s employment with the Company and its affiliates terminated on ____________________, 20____.
2. Payment and Benefits. Upon the effectiveness of the terms set forth herein, the Company shall provide the Employee with certain payments and benefits set forth in Section 5(a)(ii) of the Employment Agreement between the Company and Employee dated __________________________, 20___ (the “Employment Agreement”), upon the terms, and subject to the conditions, of the Employment Agreement.
3. No Liability. This Release does not constitute an admission by the Company, or any of its parents, subsidiaries, affiliates, divisions, officers, directors, partners, agents, or employees, or by the Employee, of any unlawful acts or of any violation of federal, state or local laws.
4. Release.
(a) In consideration of the payments and benefits set forth in Section 5(a)(ii) of the Employment Agreement, the Employee for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “Employee Releasors”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, Forest City Realty Trust, Inc., and each of their respective parents, subsidiaries, affiliates, divisions, predecessors, successors, assigns, officers, directors, partners, agents, attorneys, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “Company Releasees”), and each of them, from any and all claims, demands, actions, causes of action, costs, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which the Employee has, had, or may ever have against the Company Releasees relating to or arising out of the Employee’s employment or separation from employment with the Company, from the beginning of time and up to and including the date the Employee executes this Release. This Release includes, without limitation, (i) law or equity claims; (ii) contract (express or implied) or tort claims; (iii) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing; (iv) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ADEA”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962, and the Americans with Disabilities Act of 1990, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Equal Pay Act, the Lilly Ledbetter
Fair Pay Act or any other foreign, federal, state or local law or judicial decision), (v) claims arising under the Employee Retirement Income Security Act (excluding claims for amounts that are vested benefits or that the Employee is otherwise entitled to receive under any employee benefit plan of the Company or any of its affiliates in accordance with the terms of such plan and applicable law), and (vi) any other statutory or common law claims related to the Employee’s employment with the Company or the separation of the Employee’s employment with the Company; provided, however, that nothing herein shall release any obligation of the Company under the Employment Agreement.
In addition, nothing in this Release is intended to interfere with the Employee’s right to file a charge with the Equal Employment Opportunity Commission or any state or local human rights commission in connection with any claim the Employee believes he may have against the Company Releasees. However, by executing this Release, the Employee hereby waives the right to recover in any proceeding that the Employee may bring before the Equal Employment Opportunity Commission or any state human rights commission or in any proceeding brought by the Equal Employment Opportunity Commission or any state human rights commission on the Employee’s behalf.
(b) In consideration of the Employee’s release of claims set forth in Section 4(a) of this Release, the Company, Forest City Realty Trust, Inc. and each of their respective parents, subsidiaries, affiliates, divisions, predecessors, successors, assigns, officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “Company Releasors”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Employee for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “Employee Releasees”), and each of them, from any and all claims, demands, actions, causes of action, costs, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which any of the Company Releasors has, had, or may ever have against any of the Employee Releasees relating to or arising out of the Employee’s employment or separation from employment with the Company, from the beginning of time and up to and including the date the Employee executes this Release; provided, however, that nothing herein shall release any obligation of the Employee under the Employment Agreement.
5. Bar. The Employee and the Company acknowledge and agree that if he or it should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against the other party with respect to any cause, matter or thing which is the subject of the releases under Section 4 of this Release, this Release may be raised as a complete bar to any such action, claim or proceeding, and the applicable Releasee may recover from the other party all costs incurred in connection with such action, claim or proceeding, including attorneys’ fees.
6. Governing Law. This Release shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to conflicts of laws principles.
7. Acknowledgment. The Employee has read this Release, understands it, and voluntarily accepts its terms, and the Employee acknowledges that he has been advised by the Company to seek the advice of legal counsel before entering into this Release, and has been provided with a period of at least twenty-one (21) days in which to consider entering into this Release. The Employee acknowledges and agrees that the payments and benefits provided under Section 5(a)(ii) of the Employment Agreement represent substantial value over and above that to which the Employee would otherwise be entitled.
8. Revocation. The Employee has a period of seven (7) days following the execution of this Release during which the Employee may revoke this Release by delivering written notice to the Company, and this Release shall not become effective or enforceable until such revocation period has expired. The Employee understands that if he revokes this Release, it will be null and void in its entirety, and he will not be entitled to any payments or benefits provided in this Release, including without limitation under Section 5(a)(ii) of the Employment Agreement.
9. Miscellaneous. This Release is the complete understanding between the Employee and the Company in respect of the subject matter of this Release and supersedes all prior agreements relating to the same subject matter. The Employee has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law.
10. Counterparts. This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties have executed this Release on the date first set forth above.
FOREST CITY EMPLOYER, LLC
By:
Its:
Employee:
[SAMPLE RELEASE — DO NOT SIGN]
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David J. LaRue
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January 1, 2016
Robert G. O’Brien
Forest City Employer, LLC
50 Public Square
Terminal Tower, Suite 1100
Cleveland, Ohio 44113
Re: Employment Agreement
Dear Robert:
This letter is to affirm our intent to have you serve as an employee of Forest City Employer, LLC (the “Company”) effective as of January 1, 2016 (the “Effective Date”). The following letter agreement (the “Agreement”) outlines the terms and conditions of your employment.
The Company agrees to employ you and you agree to such employment with the Company, upon the terms and subject to the conditions set forth in this Agreement, for the period beginning on the Effective Date and ending on the earlier of (i) the Date of Termination (as defined below), or (ii) the first anniversary of the Effective Date. Unless terminated prior to such date, the Term shall be automatically renewed for successive one-year periods on the terms and subject to the conditions of this Agreement, commencing on the first anniversary of the Effective Date and on each anniversary date thereafter, unless either the Company or you gives the other party written notice, at least 180 days prior to the end of such initial or extended Term, of its or your intention not to renew this Agreement or your employment. Any reference to the “Term” of this Agreement shall include the original term and any extension. As provided for herein, you agree to also perform services for Forest City Realty Trust, Inc. (“Forest City”) and its affiliates (Forest City, the Company, and any of their respective affiliates or subsidiaries are referred to herein collectively as the “Forest City Group”) without receiving additional consideration for such services.
You agree to serve as an employee of the Company. In addition, you agree to serve (i) as Executive Vice President and Chief Financial Officer of Forest City and (ii) in such other position or positions within the Forest City Group as may be reasonably requested by the Company or any other member of the Forest City Group, in each case without any additional consideration. You will be responsible for planning, implementing, managing and controlling all financial-related activities of the Forest City Group. This will include direct responsibility for accounting, finance, forecasting, strategic planning, investment analysis and negotiations, investor relationships, private and institutional financing and capital market transactions. You will report directly to the Chief Executive Officer of Forest City.
During the Term, you shall perform your duties faithfully, honestly, diligently and conscientiously, and in accordance with the policies and procedures generally applicable to employees of the Company and the other members of the Forest City Group. You acknowledge and agree to comply with the stock ownership guidelines maintained by Forest City applicable to your position, as the same may be amended from time to time.
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3. | Compensation and Benefits |
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a) | Base Salary. During the Term, the Company will pay you an annualized base salary (“Annual Base Salary”) at a rate of not less than Five Hundred and Sixty Six Thousand Five Hundred Dollars ($566,500), payable in regular installments in accordance with the Company’s customary payroll practices. During the Term, the Annual Base Salary shall be reviewed by the Compensation Committee of Forest City (the “Compensation Committee”), and adjusted, based upon your performance and the Forest City Group’s performance and competitive with industry standards. |
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b) | Bonus. For each fiscal year during the Term, you will participate in the Company’s Short-Term Incentive Plan (the “STIP”) and the Long-Term Incentive Plan (the “LTIP”) under terms and conditions established by the Board of Directors of Forest City (the “Board’) or the Compensation Committee from time to time. |
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c) | Vacation and Benefits. During the Term, you will participate in the Company’s paid time-off program and other Company benefits consistent with applicable policies for the executive officers of Forest City, including but not limited to benefits substantially comparable to those provided to you by Forest City Enterprises, Inc. immediately prior to the Effective Date. |
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4. | Termination of Employment |
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a) | Death and Disability. Your employment will terminate automatically upon the date of your death. If the Company determines in good faith that your Disability (as defined below) has occurred during the Term, it may give to you written notice of its intention to terminate your employment; provided that such notice is provided no later than 180 days following your first day of Disability. In such event, your employment will terminate effective on the 30th day after receipt of such notice by you (the “Disability Effective Date”), provided that, within the 30 days after such receipt, you shall not have returned to full-time performance of your duties. For purposes of this Agreement, “Disability” shall mean the inability of you to perform the essential duties of the position held by you by reason of any medically determined physical or mental impairment that lasts for 150 consecutive days in any one-year period, all as determined by an independent licensed physician mutually acceptable to the Company and you or your legal representative. |
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b) | Cause. Your employment with the Company may be terminated with or without Cause. For purposes of this Agreement, “Cause” shall mean: (i) your conviction, a guilty plea or plea of nolo contendere by you for (x) any crime involving dishonesty with respect to the Forest City Group, or (y) any felony; or (ii) a material breach by you of the Code of Legal and Ethical Conduct or other written Forest City Group policies, your obligations under this Agreement, or any laws material to the conduct of the Forest City Group’s business. The cessation of your employment will not be deemed to be for Cause unless and until (A) there shall have been delivered to you a copy of a resolution duly adopted by majority vote of the Compensation Committee (after reasonable notice is provided to you that specifically identifies the manner and sets forth the specific acts of which the Compensation Committee believes that you may be guilty of the conduct described in subparagraph (i) through and including (ii), and you are given an opportunity, together with counsel, to be heard before the Compensation Committee), finding that, in the good faith opinion of the majority of the Compensation Committee, you are guilty of the conduct described in subparagraph (i) through and including (ii) above, and (B) you shall fail to cure such conduct (if curable) within a reasonable time period established by the Compensation Committee of not less than thirty (30) calendar days after your receipt of such notice. |
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c) | Good Reason. Your employment with the Company may be terminated by you with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean any of the following without your consent: (i) a material reduction of your duties or responsibilities set forth in Section 2, including any change in your officer status; (ii) a material reduction, other than across-the-board reductions that apply to other named executive officers (as set forth in Forest City’s most recently-filed proxy statement) of your Annual Base Salary, STIP target opportunity, LTIP target opportunity or total direct compensation opportunity (provided that for purposes of this clause (ii) a material reduction shall be any reduction of greater than 10% occurring during the Term); (iii) a material change in geographic location at which you must perform services under this Agreement from the Company’s offices at which you were principally employed (the Company has determined that a relocation of more than fifty (50) miles would constitute such a material change); or (iv) a material breach by the Company or Forest City of this Agreement. A termination of your employment by you shall not be deemed to be for Good Reason unless (x) you give notice to the Company of the existence of the event or condition constituting Good Reason within 90 days after you have knowledge that such event or condition initially occurs or exists, (y) the Company fails to cure such event or condition within 30 days after receiving such written notice (or, if earlier, the last day of the Term), and (z) your Date of Termination (as defined below) occurs not later than 150 days after such event or condition initially occurs or exists (or, if earlier, the last day of the Term). |
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d) | Notice of Termination. Any termination by the Company for Cause, or by you for Good Reason, shall be communicated by a written notice to the other party which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to |
the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of your employment under the provision so indicated and (iii) if the Date of Termination is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than 30 days after the giving of such notice). The failure by the Company or you to set forth in the notice of termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Company or you, respectively, hereunder or preclude the Company or you, respectively, from asserting such fact or circumstance in enforcing the Company’s or your rights hereunder.
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e) | Date of Termination. “Date of Termination” means (i) if your employment is terminated by the Company for Cause, or by you for Good Reason, the date of receipt of the notice of termination or any later date specified within 30 days of such notice, as the case may be, (ii) if your employment is terminated by the Company other than for Cause or Disability, or if you voluntarily resign without Good Reason, the date on which the terminating party notifies the other party that such termination shall be effective, provided that on a voluntary resignation without Good Reason, the Company may, in its sole discretion, make such termination effective on any date it elects in writing, between the date of the notice and the proposed date of termination specified in the notice, (iii) if your employment is terminated by reason of death, the date of your death, (iv) if your employment is terminated by the Company due to Disability, the Disability Effective Date, or (v) if your employment is terminated at the end of the Term. |
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a) | Disability; Other than for Cause or Good Reason. If, during the Term, the Company terminates your employment for Disability or other than for Cause, or if you terminate your employment for Good Reason: |
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i. | The Company shall pay to you the sum of: (A) the portion of your Annual Base Salary earned through the Date of Termination, to the extent not previously paid; (B) the amount of any incentive compensation under the STIP or LTIP that has been earned by you for a completed fiscal year or other measuring period preceding the Date of Termination, but has not yet been paid to you; and (C) any accrued paid time-off, to the extent not previously paid (the sum is referred to as the “Accrued Benefits”). Unless subject to a valid deferral election made pursuant to the terms of the Company’s deferred compensation plan, the Accrued Benefits described in clauses (A) and (C) shall be paid in a single lump sum within 30 days after the Date of Termination and the Accrued Benefits described in Clause (B) shall be paid in a single lump sum within 30 days after the Date of Termination (but in no event later than two and one half months following the end of the fiscal year or other measuring period preceding the Date of Termination). |
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ii. | The Company shall pay or provide to you the severance benefits described in this Section 5(a)(ii) if and only if you sign and do not revoke a release of claims agreement in the form attached as Exhibit A, with such changes as the Company may determine to be required or reasonably advisable in order to make the release enforceable and otherwise compliant with applicable law (the “Release”), and the Release becomes effective and irrevocable no later than the 60th day following your Date of Termination (the “Release Deadline”). If these conditions are not satisfied, then you will forfeit any right to severance payments under this Section 5(a)(ii). To become effective and irrevocable, the Release must be executed by you and any revocation periods (as required by statute, regulation, or otherwise) must have expired without you having revoked the Release. The severance benefits under this Section 5(a)(ii) are as follows: |
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(A) | Two times the sum of (I) your Annual Base Salary, (II) the average of the annual incentives payable to you under the STIP for the last three full fiscal years prior to the Date of Termination, (III) an amount equal to 12 monthly long-term care premiums, based on the level of coverage in effect for you immediately prior to the Date of Termination, and (IV) an amount equal to your annual health care subsidy payment as in effect immediately prior to the Date of Termination. The Company shall pay this amount within 10 days after the date that the Release becomes effective and irrevocable; provided, however, that if the Release Deadline could occur in the calendar year immediately following your Date of Termination, then the amount shall be paid within 10 days after the date of the Release Deadline (even if the Release has become effective and irrevocable in accordance with its terms prior to that date). |
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(B) | The annual incentive that would have been payable to you under the STIP for the fiscal year during which the Date of Termination occurs, determined as if you had remained employed for the entire year (and any additional period of time necessary to be eligible to receive the annual incentive for the year), based on actual performance during the entire fiscal year and without regard to any discretionary adjustments that have the effect of reducing the amount of the annual incentive (other than discretionary adjustments applicable to all senior executives who did not terminate employment), pro-rated based on the number of days in Forest City’s fiscal year through (and including) your Date of Termination. The pro-rated annual incentive shall be payable in a single lump sum at the same time that payments are made to other participants in the STIP for that fiscal year (pursuant to the terms of the STIP but in no event later than two and one-half months after the fiscal year during which the Date of Termination occurs), or as otherwise may be provided in a valid deferral election |
made pursuant to the terms of the Company’s deferred compensation plan.
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(C) | If and only if the Date of Termination occurs in the second half of a performance period under the LTIP, the cash LTIP and performance shares that would have been payable to you for that particular performance period (and only that performance period), determined as if you had remained employed for the entire performance period (and any additional period of time necessary to be eligible to receive payment for the performance period), based on actual performance during the entire performance period and without regard to any discretionary adjustments that have the effect of reducing the amount of payment (other than discretionary adjustments applicable to all senior executives who did not terminate employment), pro-rated based on the number of days in the performance period through (and including) your Date of Termination. The cash LTIP and performance shares earned, if any, shall be payable in a single lump sum at the same time that payments are made to other participants in the LTIP for that performance period (pursuant to the terms of the LTIP but in no event later than two and one-half months after the performance period during which the Date of Termination occurs), or as otherwise may be provided in a valid deferral election made pursuant to the terms of the Company’s deferred compensation plan. |
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(D) | All outstanding and unvested Forest City restricted shares, restricted share units and stock options that are subject to a vesting schedule based solely on continued service (and specifically excluding any awards with respect to which the number of shares earned depends upon performance) shall become immediately vested and exercisable. In addition, all outstanding and vested Forest City stock options (including those that vest pursuant to the operation of the immediately preceding sentence) will remain exercisable for the full duration of their term. |
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iii. | To the extent not previously paid or provided in Section 5(a)(i) above, the Company shall pay or provide, or cause to be paid or provided, to you any other amounts or benefits required to be paid or provided or which you are eligible to receive under any plan, program, policy or practice or contract or agreement of the Forest City Group, including any benefits to which you are entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended, and the Company’s unfunded nonqualified supplemental retirement plan (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”), in accordance with the terms and normal procedures of each such plan, program, policy or |
practice or contract or agreement, based on accrued and vested benefits through the Date of Termination.
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b) | Death; Cause; Other than for Good Reason; Expiration of Term. If your employment is terminated for Cause, or if you voluntarily terminate your employment without Good Reason or you die, or upon expiration of the Term due to either party’s election not to renew the then-current term, this Agreement shall terminate without further obligations to you other than the obligation to pay to you your Accrued Benefits through the Date of Termination and the Other Benefits, in each case to the extent not previously paid or provided. |
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c) | Full Settlement. Except as otherwise provided in Section 8 of this Agreement, or in the applicable compensation recovery policy maintained by Forest City from time to time, as the same may be amended to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities and Exchange Commission or applicable securities exchange, the Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Forest City Group may have against you or others. In no event shall you be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to you under any of the provisions of this Agreement and such amounts shall not be reduced whether or not you obtain other employment. If you receive payments under Section 5(a)(ii) of this Agreement, then you shall not be entitled to any other severance pay or benefits under any severance plan, program or policy of the Forest City Group, unless otherwise authorized by the Compensation Committee, in its discretion. |
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6. | Confidential Information |
You acknowledge that the information, observations and data obtained by you while employed by the Company pursuant to this Agreement, as well as those obtained by you while employed by Forest City Enterprises, Inc. or any of its subsidiaries or affiliates or any predecessor thereof prior to the date of this Agreement, concerning the business or affairs of the Forest City Group or any predecessors thereof, including, without limitation, information relating to the products, suppliers, customers, processes, costs, prices, business plans and strategies of the Forest City Group or any predecessor thereof (unless and except to the extent the foregoing become generally known to and available for use by the public other than as a result of your acts or omissions to act in violation of this Agreement) (hereinafter defined as “Confidential Information”) are the property of the Forest City Group. Therefore, you agree that both during and after the Term you will not disclose any Confidential Information without the prior written consent of the Chairman of the Board (which may be withheld for any reason or no reason) unless and except to the extent that such disclosure is (i) made in the ordinary course of your performance of your duties under this Agreement or (ii) required by any subpoena or other legal process (in which event you
will give the Company prompt notice of such subpoena or other legal process in order to permit the Company to seek appropriate protective orders), and that you shall not use any Confidential Information for your own account without the prior written consent of the Chairman of the Board (which may be withheld for any reason or no reason). You will deliver to the Company at the termination of the Term, or at any other time the Company may reasonably request, all memoranda, notes, plans, records, reports, computer files and software and other documents and data (and copies thereof) relating to the Confidential Information, or to the work product or the business of the Forest City Group which you may then possess or have under your control. Your obligations under this Section 6 are in addition to, and not in limitation of or preemption of, all other obligations of confidentiality which you may have to the Forest City Group under general legal or equitable principles, and federal, state or local law.
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7. | Non-Solicitation; Non-Competition; Non-Disparagement |
You acknowledge that the services provided under this Agreement give you the opportunity to have special knowledge of the Forest City Group, its Confidential Information, and the capabilities of individuals employed by or affiliated with the Forest City Group. You further acknowledge that interference with those business or employment relationships of the Forest City Group would cause irreparable injury to the Forest City Group. Consequently, you agree to be subject to the following restrictive covenants:
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a) | You agree that during the period commencing on the date of this Agreement and ending two years after the Date of Termination (the “Protection Period”), and provided that the Company has not materially breached its obligations under Section 5 hereof, you will not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or limited liability company or as an officer, director, shareholder, investor or employee of or in any other corporation or enterprise or otherwise, in the United States, (i) have any direct or indirect equity or other ownership interest in, or provide any financial or other assistance (whether as a lender, investor or otherwise) to, any Competitive Business (as defined below); (ii) perform services as a director, officer, manager, employee, member, consultant, representative, agent or otherwise for any Competitive Business; or (iii) otherwise engage in any Competitive Business, including, without limitation, by diverting or attempting to divert from the Forest City Group any business whatsoever by influencing or attempting to influence, or soliciting or attempting to solicit any of the customers of the Forest City Group (or any potential customers with whom the Forest City Group had business contact during the one-year period ending on the Date of Termination). For purposes of this Section 7, the term “Competitive Business” shall mean any person or entity (including any joint venture, partnership, firm, corporation, or limited liability company) that conducts a real estate business that is competitive with the commercial office, retail rental, and/or multifamily residential portfolios owned or managed by any member of the Forest City Group as of the Date of Termination (or any significant business that is being actively pursued as of the Date of Termination by any member of the Forest City Group). |
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b) | You agree that during the Protection Period, and provided that the Company has not materially breached its obligations under Section 5 hereof, you will not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or limited liability company or as an officer, director, shareholder, investor or employee of or in any other corporation or enterprise or otherwise, induce or attempt to induce any employee of any member of the Forest City Group, but only with respect to employees with whom you had direct contact while employed by the Company pursuant to this Agreement, as well as those with whom you had direct contact while employed by Forest City Enterprises, Inc. or any of its subsidiaries or affiliates or any predecessor thereof at prior to the date of this Agreement, to quit or abandon their employ. |
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c) | You agree to refrain, both during and after the Term, from publishing or providing any oral or written statements about the Forest City Group, or any of such member’s officers, directors, managers, employees, agents or representatives that are disparaging, slanderous, libelous or defamatory, or that disclose private or Confidential Information about their business affairs, or that constitute an intrusion into their private lives, or that give rise to unreasonable publicity about their private lives, or that place them in a false light before the public, or that constitute a misappropriation of their name or likeness. |
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d) | Likewise, the Forest City Group shall not publish or provide any oral or written statements about you or your family that are disparaging, slanderous, libelous or defamatory, or that disclose private or confidential information about your business or personal affairs, or that constitute an intrusion into your private life, or that give rise to unreasonable publicity about your private life, or that place you or your family in a false light before the public or that constitute a misappropriation of your name or likeness. |
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e) | Nothing in this Section 7 shall prohibit you from being: (i) a shareholder in a mutual fund or a diversified investment company or (ii) an owner of not more than 5% of the outstanding equity securities of any class of a corporation or other entity which is publicly traded, provided that you have no active participation in the business of such corporation or other entity. |
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f) | You agree and acknowledge that the promises and obligations made by the Company in this Agreement (specifically including, but not limited to, the payments and benefits provided for under Section 5(a)(ii) hereof) constitute sufficient consideration for the covenants contained in this Section 7. You also agree and acknowledge that the covenants contained in this Section 7: (i) are reasonable in period, scope and area, and (ii) are necessary to protect legitimate proprietary and business interests of the Forest City Group. If, at the time of enforcement of this Section 7, a court of competent jurisdiction holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances |
shall be substituted for the stated period, scope or area and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period, scope or area permitted by law.
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g) | Your obligations set forth in this Section 7 shall remain in full force and effect for the entire period provided herein notwithstanding the termination of your employment under this Agreement for any reason; provided that your obligations under Section 7(a) shall cease if the Company terminates your employment for Cause or you terminate your employment for Good Reason. |
Because your services are unique and because you have access to Confidential Information and work product, the parties hereto agree that the Forest City Group would be damaged irreparably in the event any of the provisions of Sections 6 and 7 hereof were not performed in accordance with their specific terms or were otherwise breached and that monetary damages would be an inadequate remedy for any such non-performance or breach. Therefore, the Company (or its successors or assigns) and other members of the Forest City Group shall be entitled, in addition to other rights and remedies existing in their favor, to an injunction or injunctions to prevent any breach or threatened breach of any of such provisions and to enforce such provisions specifically (without posting a bond or other security).
Subject to any limits on applicability contained therein, Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive and continue in full force in accordance with their terms notwithstanding any termination of the Term or this Agreement.
Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, sent by reputable overnight carrier or mailed by first class mail, return receipt requested, to the recipient. Notices to you shall be sent to your most recent address provided to the Company. Notices to the Company should be sent to the Chairman of the Board and the Executive Vice President of Human Resources of Forest City, with a copy to the General Counsel of Forest City, at the address of the Company’s headquarters. Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.
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11. | Successors and Assigns; Forest City Group |
This Agreement is personal to you, and, without the prior written consent of the Company, shall not be assignable by you other than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by your legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. Except as provided in the immediately following sentence, without the prior written consent of you this Agreement shall not be assignable by the Company.
The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise. If a particular action is required to be taken, or a particular notice is required to be given, by the Company, and such action or notice is in fact taken by, or such notice is in fact given by, Forest City, then such action or notice shall be deemed to have been taken or given by the Company. Notwithstanding anything to the contrary contained in this Agreement, you agree that you are an employee only of the Company (or it successors or assigns, if applicable) and not an employee of any other entity or member of the Forest City Group.
The provisions of this Agreement may be amended or waived only with the prior approval of the Board and you, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant to any law or government regulation or ruling. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement. This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of the State of Ohio, without regard to conflicts of law principles.
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14. | Section 409A Compliance |
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a) | Section 409A of the Internal Revenue Code (“Section 409A”) imposes payment restrictions on “separation pay” (i.e., payments owed to you upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to you, including immediate taxation, interest and a 20% penalty tax. |
It is the Company’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible, and to the extent they do not so qualify, are intended to qualify for the involuntary separation pay exceptions to Section 409A of the Code, to the maximum extent possible. If neither of these exceptions applies, then notwithstanding any provision in this Agreement to the contrary:
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i. | All amounts that would otherwise be paid or provided during the first six months following the date of termination shall instead be accumulated through and paid or provided (together with interest on any delayed payment at the applicable federal rate under the Internal Revenue Code), on the first business day following the six-month anniversary of your termination of employment. |
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ii. | Any expense eligible for reimbursement must be incurred, or any entitlement to a benefit must be used, during the Term (or the applicable expense reimbursement or benefit continuation period provided in this Agreement). The amount of the reimbursable expense or benefit to which you are entitled during a calendar year will not affect the amount to be provided in any other calendar year, and your right to receive the reimbursement or benefit is not subject to liquidation or exchange for another benefit. Provided the requisite documentation is submitted, the Company will reimburse the eligible expenses on or before the last day of the calendar year following the calendar year in which the expense was incurred. |
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b) | For purposes of this Agreement, “termination of employment” or words or phrases to that effect shall mean a “separation from service” within the meaning of Section 409A. |
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a) | In the event any claim, dispute or controversy arises in connection with this Agreement or the interpretation or enforcement of any provision of this Agreement and the claim, dispute or controversy is not resolved within 30 days through informal, good faith negotiations between the parties, the claim, dispute or controversy shall be referred to non-binding mediation. It is agreed that any mediation shall be conducted in Cleveland, Ohio, or some other location upon mutual consent of the parties involved, at a time and place convenient to the mediator and the parties involved. |
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b) | The parties shall, in good faith, select a mediator who is mutually agreeable to both sides. Each party shall bear his or its own costs and attorneys’ fees associated with the mediation and shall share equally the responsibility for paying the mediator’s fee. |
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c) | Should any claim, dispute, or controversy remain in existence between the parties after the completion of the two-step resolution process set forth above, either party may pursue its remedies for such breach in a court of competent jurisdiction in Cleveland, Ohio. |
In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause performance of the terms and conditions of this Agreement to be unreasonable.
This Agreement constitutes the entire agreement between the parties pertaining to its subject matter, and it supersedes all prior contemporaneous agreements, representations, and understandings of the parties. Without limiting the forgoing, the Employment Agreement between you and Forest City Enterprises, Inc. dated September 22, 2011 and as amended as of January 1, 2014, is hereby superseded, replaced in its entirety and considered null and void, and your employment with Forest City Enterprises, Inc. is hereby terminated, in each case immediately prior to the Effective Date.
[Signatures on the following page]
If the foregoing correctly sets forth our understanding, please sign, date and return three originally signed copies of this Agreement to the undersigned for execution on behalf of the Company. After this Agreement has been executed by the Company and a fully-executed copy returned to you, it shall constitute a binding agreement between us.
The parties hereto have signed this Agreement as of the 18th day of November, 2015, to be effective as of the 1st day of January, 2016.
FOREST CITY EMPLOYER, LLC
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
ACCEPTED AND AGREED:
/s/ ROBERT G. O’BRIEN
Robert G. O’Brien
GUARANTEE
In order to induce you to enter into the foregoing Agreement, Forest City hereby unconditionally and irrevocably guarantees to you and your estate and legal representatives that it will cause the Company to perform each and all of its obligations under this Agreement in accordance with the terms hereof. This guarantee of performance is a principal obligation of the undersigned and shall continue in full force and effect notwithstanding any amendments or modifications to this Agreement.
FOREST CITY REALTY TRUST, INC.
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
EXHIBIT A
GENERAL RELEASE
This General Release (this “Release”) is entered into between Forest City Employer, LLC (the “Company”) and Robert G. O’Brien (the “Employee”) as of ______________________, 20____. The Company and the Employee agree as follows:
1. Employment Status. The Employee’s employment with the Company and its affiliates terminated on ___________________, 20___.
2. Payment and Benefits. Upon the effectiveness of the terms set forth herein, the Company shall provide the Employee with certain payments and benefits set forth in Section 5(a)(ii) of the Employment Agreement between the Company and Employee dated _______________________, 20____ (the “Employment Agreement”), upon the terms, and subject to the conditions, of the Employment Agreement.
3. No Liability. This Release does not constitute an admission by the Company, or any of its parents, subsidiaries, affiliates, divisions, officers, directors, partners, agents, or employees, or by the Employee, of any unlawful acts or of any violation of federal, state or local laws.
4. Release.
(a) In consideration of the payments and benefits set forth in Section 5(a)(ii) of the Employment Agreement, the Employee for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “Employee Releasors”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Company, Forest City Realty Trust, Inc., and each of their respective parents, subsidiaries, affiliates, divisions, predecessors, successors, assigns, officers, directors, partners, agents, attorneys, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “Company Releasees”), and each of them, from any and all claims, demands, actions, causes of action, costs, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which the Employee has, had, or may ever have against the Company Releasees relating to or arising out of the Employee’s employment or separation from employment with the Company, from the beginning of time and up to and including the date the Employee executes this Release. This Release includes, without limitation, (i) law or equity claims; (ii) contract (express or implied) or tort claims; (iii) claims for wrongful discharge, retaliatory discharge, whistle blowing, libel, slander, defamation, unpaid compensation, intentional infliction of emotional distress, fraud, public policy contract or tort, and implied covenant of good faith and fair dealing; (iv) claims arising under any federal, state, or local laws of any jurisdiction that prohibit age, sex, race, national origin, color, disability, religion, veteran, military status, sexual orientation, or any other form of discrimination, harassment, or retaliation (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ADEA”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962, and the Americans with Disabilities Act of 1990, the Rehabilitation Act, the Family and Medical Leave Act, the Sarbanes-Oxley Act, the Employee Polygraph Protection Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Equal Pay Act, the Lilly Ledbetter
Fair Pay Act or any other foreign, federal, state or local law or judicial decision), (v) claims arising under the Employee Retirement Income Security Act (excluding claims for amounts that are vested benefits or that the Employee is otherwise entitled to receive under any employee benefit plan of the Company or any of its affiliates in accordance with the terms of such plan and applicable law), and (vi) any other statutory or common law claims related to the Employee’s employment with the Company or the separation of the Employee’s employment with the Company; provided, however, that nothing herein shall release any obligation of the Company under the Employment Agreement.
In addition, nothing in this Release is intended to interfere with the Employee’s right to file a charge with the Equal Employment Opportunity Commission or any state or local human rights commission in connection with any claim the Employee believes he may have against the Company Releasees. However, by executing this Release, the Employee hereby waives the right to recover in any proceeding that the Employee may bring before the Equal Employment Opportunity Commission or any state human rights commission or in any proceeding brought by the Equal Employment Opportunity Commission or any state human rights commission on the Employee’s behalf.
(b) In consideration of the Employee’s release of claims set forth in Section 4(a) of this Release, the Company, Forest City Realty Trust, Inc. and each of their respective parents, subsidiaries, affiliates, divisions, predecessors, successors, assigns, officers, directors, partners, agents, and former and current employees, including without limitation all persons acting by, through, under or in concert with any of them (collectively, “Company Releasors”) does hereby irrevocably and unconditionally release, acquit and forever discharge the Employee for himself, his heirs, administrators, representatives, executors, successors and assigns (collectively, “Employee Releasees”), and each of them, from any and all claims, demands, actions, causes of action, costs, attorney fees, and all liability whatsoever, whether known or unknown, fixed or contingent, which any of the Company Releasors has, had, or may ever have against any of the Employee Releasees relating to or arising out of the Employee’s employment or separation from employment with the Company, from the beginning of time and up to and including the date the Employee executes this Release; provided, however, that nothing herein shall release any obligation of the Employee under the Employment Agreement.
5. Bar. The Employee and the Company acknowledge and agree that if he or it should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against the other party with respect to any cause, matter or thing which is the subject of the releases under Section 4 of this Release, this Release may be raised as a complete bar to any such action, claim or proceeding, and the applicable Releasee may recover from the other party all costs incurred in connection with such action, claim or proceeding, including attorneys’ fees.
6. Governing Law. This Release shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to conflicts of laws principles.
7. Acknowledgment. The Employee has read this Release, understands it, and voluntarily accepts its terms, and the Employee acknowledges that he has been advised by the Company to seek the advice of legal counsel before entering into this Release, and has been provided with a period of at least twenty-one (21) days in which to consider entering into this Release. The Employee acknowledges and agrees that the payments and benefits provided under Section 5 (a)(ii) of the Employment Agreement represent substantial value over and above that to which the Employee would otherwise be entitled.
8. Revocation. The Employee has a period of seven (7) days following the execution of this Release during which the Employee may revoke this Release by delivering written notice to the Company, and this Release shall not become effective or enforceable until such revocation period has expired. The Employee understands that if he revokes this Release, it will be null and void in its entirety, and he will not be entitled to any payments or benefits provided in this Release, including without limitation under Section 5(a)(ii) of the Employment Agreement.
9. Miscellaneous. This Release is the complete understanding between the Employee and the Company in respect of the subject matter of this Release and supersedes all prior agreements relating to the same subject matter. The Employee has not relied upon any representations, promises or agreements of any kind except those set forth herein in signing this Release. In the event that any provision of this Release should be held to be invalid or unenforceable, each and all of the other provisions of this Release shall remain in full force and effect. If any provision of this Release is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Release to be upheld and enforced to the maximum extent permitted by law.
10. Counterparts. This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original.
IN WITNESS WHEREOF, the parties have executed this Release on the date first set forth above.
FOREST CITY EMPLOYER, LLC
By:
Its:
Employee:
[SAMPLE RELEASE — DO NOT SIGN]
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___________________________________________ |
Robert G. O’Brien
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AGREEMENT
THIS AGREEMENT MADE AND ENTERED INTO as of this 1st day of January, 2016 (the “Effective Date”), by and between FOREST CITY EMPLOYER, LLC of Terminal Tower, 50 Public Square, Suite 1100, Cleveland, Ohio 44113-2267, hereinafter referred to as “Company”, and JAMES A. RATNER (“Employee”).
WHEREAS, the Company desires to employ Employee, and Employee desires to accept such employment, as of the Effective Date.
NOW, THEREFORE, it is agreed that:
1. The Employment Agreement dated July 20, 2005, as amended, and Employee’s employment with Forest City Enterprises, Inc., shall terminate effective immediately prior to the Effective Date and this Employment Agreement shall become effective as of the Effective Date.
2. The Employee, in consideration of the promises and agreements of the Company herein contained, hereby accepts employment with the Company for a period of one (1) year commencing on the Effective Date. During that period, Employee agrees to serve as an Executive and Officer of Forest City Realty Trust, Inc. (“Forest City”) (Forest City, the Company, and any of their respective affiliates or subsidiaries are referred to herein collectively as the “Forest City Group”). Employee will perform such duties as may be required of him in such capacities by the Forest City Group, faithfully, honestly, diligently and to the satisfaction of the Forest City Group. Employee’s employment with the Company shall continue for additional periods of one (1) year each until termination by mutual consent, death, or by either party giving ninety (90) days written notice to either amend or terminate this Employment Agreement to the other party prior to the termination of any such one (1) year period.
3. In consideration whereof, the Company promises and agrees to pay the Employee a base salary of FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00) per year, payable from time to time during each employment year.
4. In consideration of this Employment Agreement, if the Employee dies while in the employ of the Company, the Company agrees to pay to the beneficiaries of the Employee as stipulated in his Will, or designated by written notice to the Company from the Employee during his lifetime, or designated by operation of law if the Employee dies intestate, one hundred percent (100%) of the base salary stated above for a period of five (5) years following the decease of said Employee; said sum to be payable in quarterly installments to said beneficiaries of said deceased Employee.
5. It is mutually agreed by and between the parties hereto that the Company may cancel or terminate this Employment Agreement at any time prior to the expiration of said one (1) year period, or any renewal thereof, without notice, for any conduct on the part of the Employee which injures the Forest City Group’s business, such as, but not limited to, intemperance, negligence, failure to follow instructions or perform and fulfill the obligations on the Employee’s part to be performed hereunder to the satisfaction of the Forest City Group.
6. Noncompetition: The Company acknowledges that the Employee owns and will continue to own, alone or in conjunction with others, certain retail and residential properties which have not been transferred to the Forest City Group. These properties may be managed, developed, expanded, operated and sold by the owners, independently of the business of the Forest City Group. Should Employee sell property, Employee may purchase additional property, to effectuate a Section 1031 tax free exchange under the Internal Revenue Code, with the prior approval of the Audit Committee of Forest City. Except for this property, and any potential purchase of property to effect a tax deferred transaction, Employee will engage in all business activities of the type conducted by the Forest City Group only through and on behalf of the Forest City Group, as long as he is employed by the Company. Employee further agrees to update the disclosure of real estate holdings on an annual basis in connection with any annual conflict of interest questionnaire distributed to management, as required by the Audit Committee of Forest City.
Employee may invest in commercial, industrial and residential real estate properties or projects as a passive investor holding directly and indirectly, up to 10 percent (10%) of the equity of any such entity, as long as such ownership interest is not deemed a majority or controlling interest in the entity. For purposes of this provision, Employee will be deemed to be a passive investor in an entity only if he does not, directly or indirectly, participate in or control either the day to day or strategic management of the entity.
[Signatures on the following page]
The parties hereto have signed this Employment Agreement as of the 18th day of November, 2015, to be effective as of the 1st day of January, 2016.
FOREST CITY EMPLOYER, LLC
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
ACCEPTED AND AGREED
/s/ JAMES A. RATNER
JAMES A. RATNER, Employee
GUARANTEE
In order to induce Employee to enter into the foregoing Employment Agreement, Forest City hereby unconditionally and irrevocably guarantees to Employee and Employee’s estate and legal representatives that it will cause the Company to perform each and all of its obligations under this Employment Agreement in accordance with the terms hereof. This guarantee of performance is a principal obligation of the undersigned and shall continue in full force and effect notwithstanding any amendments or modifications to this Employment Agreement.
FOREST CITY REALTY TRUST, INC.
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
AGREEMENT
THIS AGREEMENT MADE AND ENTERED INTO as of this 1st day of January, 2016 (the “Effective Date”), by and between FOREST CITY EMPLOYER, LLC of Terminal Tower, 50 Public Square, Suite 1100, Cleveland, Ohio 44113-2267, hereinafter referred to as “Company”, and RONALD A. RATNER (“Employee”).
WHEREAS, the Company desires to employ Employee, and Employee desires to accept such employment, as of the Effective Date.
NOW, THEREFORE, it is agreed that:
1. The Employment Agreement dated July 20, 2005, as amended, and Employee’s employment with Forest City Enterprises, Inc., shall terminate effective immediately prior to the Effective Date and this Employment Agreement shall become effective as of the Effective Date.
2. The Employee, in consideration of the promises and agreements of the Company herein contained, hereby accepts employment with the Company for a period of one (1) year commencing on the Effective Date. During that period, Employee agrees to serve as an Executive and Officer of Forest City Realty Trust, Inc. (“Forest City”) (Forest City, the Company, and any of their respective affiliates or subsidiaries are referred to herein collectively as the “Forest City Group”). Employee will perform such duties as may be required of him in such capacities by the Forest City Group, faithfully, honestly, diligently and to the satisfaction of the Forest City Group. Employee’s employment with the Company shall continue for additional periods of one (1) year each until termination by mutual consent, death, or by either party giving ninety (90) days written notice to either amend or terminate this Employment Agreement to the other party prior to the termination of any such one (1) year period.
3. In consideration whereof, the Company promises and agrees to pay the Employee a base salary of FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00) per year, payable from time to time during each employment year.
4. In consideration of this Employment Agreement, if the Employee dies while in the employ of the Company, the Company agrees to pay to the beneficiaries of the Employee as stipulated in his Will, or designated by written notice to the Company from the Employee during his lifetime, or designated by operation of law if the Employee dies intestate, one hundred percent (100%) of the base salary stated above for a period of five (5) years following the decease of said Employee; said sum to be payable in quarterly installments to said beneficiaries of said deceased Employee.
5. It is mutually agreed by and between the parties hereto that the Company may cancel or terminate this Employment Agreement at any time prior to the expiration of said one (1) year period, or any renewal thereof, without notice, for any conduct on the part of the Employee which injures the Forest City Group’s business, such as, but not limited to, intemperance, negligence, failure to follow instructions or perform and fulfill the obligations on the Employee’s part to be performed hereunder to the satisfaction of the Forest City Group.
6. Noncompetition: The Company acknowledges that the Employee owns and will continue to own, alone or in conjunction with others, certain retail and residential properties which have not been transferred to the Forest City Group. These properties may be managed, developed, expanded, operated and sold by the owners, independently of the business of the Forest City Group. Should Employee sell property, Employee may purchase additional property, to effectuate a Section 1031 tax free exchange under the Internal Revenue Code, with the prior approval of the Audit Committee of Forest City. Except for this property, and any potential purchase of property to effect a tax deferred transaction, Employee will engage in all business activities of the type conducted by the Forest City Group only through and on behalf of the Forest City Group, as long as he is employed by the Company. Employee further agrees to update the disclosure of real estate holdings on an annual basis in connection with any annual conflict of interest questionnaire distributed to management, as required by the Audit Committee of Forest City.
Employee may invest in commercial, industrial and residential real estate properties or projects as a passive investor holding directly and indirectly, up to 10 percent (10%) of the equity of any such entity, as long as such ownership interest is not deemed a majority or controlling interest in the entity. For purposes of this provision, Employee will be deemed to be a passive investor in an entity only if he does not, directly or indirectly, participate in or control either the day to day or strategic management of the entity.
[Signatures on the following page]
The parties hereto have signed this Employment Agreement as of the 18th day of November, 2015, to be effective as of the 1st day of January, 2016.
FOREST CITY EMPLOYER, LLC
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
ACCEPTED AND AGREED
/s/ RONALD A. RATNER
RONALD A. RATNER, Employee
GUARANTEE
In order to induce Employee to enter into the foregoing Employment Agreement, Forest City hereby unconditionally and irrevocably guarantees to Employee and Employee’s estate and legal representatives that it will cause the Company to perform each and all of its obligations under this Employment Agreement in accordance with the terms hereof. This guarantee of performance is a principal obligation of the undersigned and shall continue in full force and effect notwithstanding any amendments or modifications to this Employment Agreement.
FOREST CITY REALTY TRUST, INC.
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
AGREEMENT
THIS AGREEMENT MADE AND ENTERED INTO as of this 1st day of January, 2016 (the “Effective Date”), by and between FOREST CITY EMPLOYER, LLC, of Terminal Tower, 50 Public Square, Suite 1100, Cleveland, Ohio 44113-2267, hereinafter referred to as “Company”, and DAVID J. LaRUE, hereinafter referred to as “Employee”.
WHEREAS, the Company desires to grant to the Employee a benefit to his Estate upon his death, and
NOW THEREFORE, it is agreed that in consideration of the Employee working for the Company, it is agreed that:
1. The Agreement between Employee and Forest City Enterprises, Inc. dated May 31, 1999 shall terminate effective immediately prior to the Effective Date and this Agreement shall become effective as of the Effective Date.
2. In consideration of his employment, if the Employee dies while in the employ of the Company, the Company agrees to pay to the beneficiaries of the Employee as stipulated in his Will, or designated by written notice to the Company from the Employee during his lifetime, or designated by operation of law if the Employee dies intestate, an amount equal to one hundred percent (100%) of the salary paid to the Employee for the last calendar year prior to the death, for a period of five (5) years following the decease of said Employee; said sum to be payable in quarterly installments to said beneficiaries of said deceased Employee.
[Signatures on the following page]
The parties hereto have signed this Agreement as of the 18th day of November, 2015, to be effective as of the 1st day of January, 2016.
FOREST CITY EMPLOYER, LLC
By Forest City Rental Properties, LLC, the sole manager
By Forest City Enterprises, L.P., the sole manager
By Forest City Realty Trust, Inc., its general partner
By: /s/ CHARLES A. RATNER
Charles A. Ratner, Chairman of the Board
ACCEPTED AND AGREED
/s/ DAVID J. LARUE
DAVID J. LaRUE, Employee
GUARANTEE
In order to induce Employee to enter into the foregoing Agreement, Forest City Realty Trust, Inc. hereby unconditionally and irrevocably guarantees to Employee and Employee’s estate and legal representatives that it will cause the Company to perform each and all of its obligations under this Agreement in accordance with the terms hereof. This guarantee of performance is a principal obligation of the undersigned and shall continue in full force and effect notwithstanding any amendments or modifications to this Agreement.
FOREST CITY REALTY TRUST, INC.
/s/ CHARLES A. RATNER
By: Charles A. Ratner
Its: Chairman of the Board of Directors
AGREEMENT
THIS AGREEMENT MADE AND ENTERED INTO as of this 1st day of January, 2016 (the “Effective Date”), by and between FOREST CITY EMPLOYER, LLC, of Terminal Tower, 50 Public Square, Suite 1100, Cleveland, Ohio 44113-2267, hereinafter referred to as “Company”, and ROBERT G. O’BRIEN, hereinafter referred to as “Employee”.
WHEREAS, the Company desires to grant to the Employee a benefit to his Estate upon his death, and
NOW THEREFORE, it is agreed that in consideration of the Employee working for the Company, it is agreed that:
1. The Agreement between Employee and Forest City Enterprises, Inc. dated May 31, 1999 shall terminate effective immediately prior to the Effective Date and this Agreement shall become effective as of the Effective Date.
2. In consideration of his employment, if the Employee dies while in the employ of the Company, the Company agrees to pay to the beneficiaries of the Employee as stipulated in his Will, or designated by written notice to the Company from the Employee during his lifetime, or designated by operation of law if the Employee dies intestate, an amount equal to one hundred percent (100%) of the salary paid to the Employee for the last calendar year prior to the death, for a period of five (5) years following the decease of said Employee; said sum to be payable in quarterly installments to said beneficiaries of said deceased Employee.
[Signatures on the following page]
The parties hereto have signed this Agreement as of the 18th day of November, 2015, to be effective as of the 1st day of January, 2016.
FOREST CITY EMPLOYER, LLC
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
ACCEPTED AND AGREED
/s/ ROBERT G. O’BRIEN
ROBERT G. O’BRIEN, Employee
GUARANTEE
In order to induce Employee to enter into the foregoing Agreement, Forest City Realty Trust, Inc. hereby unconditionally and irrevocably guarantees to Employee and Employee’s estate and legal representatives that it will cause the Company to perform each and all of its obligations under this Agreement in accordance with the terms hereof. This guarantee of performance is a principal obligation of the undersigned and shall continue in full force and effect notwithstanding any amendments or modifications to this Agreement.
FOREST CITY REALTY TRUST, INC.
/s/ DAVID J. LARUE
By: David J. LaRue
Its: President and Chief Executive Officer
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “Agreement”) is made as of December 31, 2015 (the “Effective Date”), by and between Forest City Enterprises, Inc. (“Assignor”) and Forest City Realty Trust, Inc. (“Assignee”).
WHEREAS, Assignor currently maintains and sponsors director nonqualified deferred compensation arrangements, including the Forest City Enterprises, Inc. Deferred Compensation Plan for Nonemployee Directors and the Forest City Enterprises, Inc. 2005 Deferred Compensation Plan for Nonemployee Directors (collectively, including all amendments thereto, the “Director Plans”);
WHEREAS, Assignor currently maintains and sponsors equity plans, including the Employee Stock Purchase Plan, the Dividend Reinvestment and Stock Purchase Plan, and the Forest City Enterprises, Inc. 1994 Stock Plan and is a party to related award agreements with respect to awards made thereunder (collectively, including all amendments thereto the “Equity Plans”, and together with the Director Plans, the “Assigned Plans”); and
WHEREAS, Assignor and Assignee desire to enter into this Agreement to effectuate the assignment and assumption of the sponsorship of the Assigned Plans and to allocate payment obligations with respect to the Assigned Plans.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby agree as follows:
1. Assignment and Assumption. Effective as of 11:59 p.m. on the Effective Date (the “Effective Time”), Assignor hereby assigns to Assignee sponsorship of the Assigned Plans and Assignee assumes sponsorship of the Assigned Plans. Notwithstanding the foregoing: (a) Assignor expressly agrees to pay, perform and discharge any and all obligations under the Director Plans that accrue prior to the Effective Time, and (b) Assignee agrees to pay, perform and discharge any and all obligations (i) under the Director Plans that accrue on or after the Effective Time, and (ii) under the Equity Plans that accrue prior to, on or after the Effective Time.
2. Conforming Changes. Upon the effectiveness of the assignment and assumption contemplated by this Agreement, each Assigned Plan shall be amended in such manner as the parties determine to be appropriate to effectuate the purposes of this Agreement, including the following amendment: all references to Assignor or its predecessors in the Assigned Plans are hereby amended to be references to Assignee, in each case except where the context clearly dictates otherwise.
3. Further Action. The parties will from time to time on or after the date hereof, without further consideration, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances, assumptions and assurances as may be reasonably required to carry out the intent of this Agreement.
4. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Maryland, without reference to principles of conflict of laws.
5. Counterparts. This Agreement may be executed in counterparts, which together shall constitute one and the same agreement.
6. Successors. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns, including, without limitation, the surviving entity resulting from the merger of FCE Merger Sub, Inc. with and into Assignor pursuant to the terms of the Agreement and Plan of Merger, dated as of September 15, 2015, among Assignor, Assignee, FCE Merger Sub, Inc. and certain other parties and the subsequent conversion into a limited partnership.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the 20th day of November, 2015, to be effective as of the 31st day of December, 2015.
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FOREST CITY ENTERPRISES, INC.
By: /s/ DAVID J. LARUE David J. LaRue President, Chief Executive Officer and Director |
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FOREST CITY REALTY TRUST, INC.
By: /s/ DAVID J. LARUE David J. LaRue President, Chief Executive Officer and Director |
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “Agreement”) is made as of December 31, 2015 (the “Effective Date”), by and between Forest City Enterprises, Inc. (“Assignor”) and Forest City Employer, LLC (“Assignee”).
WHEREAS, Assignor currently maintains and sponsors employee nonqualified deferred compensation plans and cash-based incentive plans, including the Forest City Enterprises, Inc. Deferred Compensation Plan for Executives, the Forest City Enterprises, Inc. 2005 Deferred Compensation Plan for Executives, the Forest City Enterprises, Inc. Unfunded Nonqualified Supplemental Retirement Plan for Executives, the Forest City Enterprises, Inc. Executive Short-Term Incentive Plan, the Forest City Enterprises, Inc. Executive Long-Term Incentive Plan, the Forest City Enterprises, Inc. Senior Management Short-Term Incentive Plan, and the Forest City Enterprises, Inc. Senior Management Long-Term Incentive Plan (collectively, including all amendments thereto, the “Nonqualified Plans”).
WHEREAS, Assignor currently maintains and sponsors employee benefit plans, including the Forest City Enterprises, Inc. Group Insurance Plan, the Forest City Enterprises Flexible Benefits Plan, and the Forest City 401(k) Employee Savings Plan & Trust (collectively, including all amendments thereto, the “Qualified Plans”, and together with the Nonqualified Plans, the “Assigned Plans”); and
WHEREAS, Assignor and Assignee desire to enter into this Agreement to effectuate the assignment and assumption of the sponsorship of the Assigned Plans and to allocate payment obligations with respect to the Assigned Plans.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby agree as follows:
1. Assignment and Assumption. Effective as of 11:59 p.m. on the Effective Date (the “Effective Time”), Assignor hereby assigns to Assignee sponsorship of the Assigned Plans and Assignee assumes sponsorship of the Assigned Plans. Notwithstanding the foregoing, (a) Assignor expressly agrees to pay, perform and discharge any and all obligations under the Nonqualified Plans that accrue prior to the Effective Time and (b) Assignee agrees to pay, perform and discharge any and all obligations (i) under the Nonqualified Plans that accrue on or after the Effective Time and (ii) under the Qualified Plans that accrue prior to, on or after the Effective Time.
2. Conforming Changes. Upon the effectiveness of the assignment and assumption contemplated by this Agreement, each Assigned Plan shall be amended in such manner as the parties determine to be appropriate to effectuate the purposes of this Agreement, including the following amendments: all references to Assignor or its predecessors in the Assigned Plans are hereby amended to be references to Assignee, and all references to the Board of Directors or the Compensation Committee of Assignor or its predecessors are hereby amended to be references to the Board of Directors or the Compensation Committee of Forest City Realty Trust, Inc., as applicable, in each case except where the context clearly dictates otherwise.
3. Further Action. The parties will from time to time on or after the date hereof, without further consideration, execute, acknowledge and deliver such further acts, assignments, transfers, conveyances, assumptions and assurances as may be reasonably required to carry out the intent of this Agreement.
4. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, without reference to principles of conflict of laws.
5. Counterparts. This Agreement may be executed in counterparts, which together shall constitute one and the same agreement.
6. Successors. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns, including, without limitation, the surviving entity resulting from the merger of FCE Merger Sub, Inc. with and into Assignor pursuant to the terms of the Agreement and Plan of Merger, dated as of September 15, 2015, among Assignor, Forest City Realty Trust, Inc., FCE Merger Sub, Inc. and certain other parties and the subsequent conversion into a limited partnership.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the 20th day of November, 2015, to be effective as of the 31st day of December, 2015.
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FOREST CITY ENTERPRISES, INC.
By: /s/ DAVID J. LARUE David J. LaRue President, Chief Executive Officer and Director |
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FOREST CITY EMPLOYER, LLC
By: /s/ DAVID J. LARUE David J. LaRue President and Chief Executive Officer |
FOREST CITY REALTY TRUST, INC.
1994 STOCK PLAN
(Effective as of December 31, 2015)
1. PURPOSE
Forest City Enterprises, Inc. established the Forest City Enterprises, Inc. 1994 Stock Plan for the purpose of enhancing the attraction, retention and motivation of nonemployee directors and certain officers, executives and other employees by awarding such employees and nonemployee directors the opportunity to receive Option Rights, Restricted Shares, Restricted Stock Units, Appreciation Rights and Performance Shares. The Plan is also intended to foster within these employees and nonemployee directors an identification with ownership and shareholder interests. The Plan was amended and restated as of March 14, 2013 and further amended effective as of December 17, 2013.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Realty Trust, Inc. (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, the Company has agreed to pay, perform, and discharge, on and after the Effective Time, any and all obligations of Forest City Enterprises, Inc. under the Plan and each outstanding award granted under the Plan, including, but not limited to, the obligation to deliver Shares (as defined below), in accordance with the terms of the Plan and the applicable award agreement. Effective as of the Effective Time for purposes of the Plan, each reference to Forest City Enterprises, Inc. or its predecessors in any such award agreement with respect to an outstanding award shall be deemed to be a reference to the Company, each reference to the Board of Directors (or Board) or the Compensation Committee (or Committee) of Forest City Enterprises, Inc. in any such award agreement shall be deemed to be a reference to the Board of Directors or the Compensation Committee of the Company, and each reference to shares of Forest City Enterprises, Inc.’s Class A Common Stock in any such award agreement shall be deemed to be a reference to shares of the Company’s Class A Common Stock, as applicable, in each case except where the context clearly dictates otherwise.
2. DEFINITIONS
Unless the context of the applicable section clearly indicates otherwise, the terms below, when used within the Plan, shall have the meaning set forth in this Section 2.
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A. | APPRECIATION RIGHT means a right granted pursuant to Section 9 of the Plan, including a Free-standing Appreciation Right and a Tandem Appreciation Right. |
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B. | BASE PRICE means the price to be used as the basis for determining the Spread upon the exercise of a Free-standing Appreciation Right. |
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C. | BOARD OF DIRECTORS or BOARD means the Board of Directors of the Company. |
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D. | CHANGE OF CONTROL means if at any time any of the following events has occurred: |
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(1) | the Company merges itself, or is merged or consolidated with, another corporation and as a result of such merger or consolidation less than 51% of the voting power of the then-outstanding voting securities of the surviving corporation immediately after such transaction are directly or indirectly beneficially owned in the aggregate by the former shareholders of the Company immediately prior to such transaction; |
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(2) | all or substantially all the assets accounted for on the Consolidated Balance Sheet of the Company are sold or transferred to one or more corporations or persons, and as a result of such sale or transfer less than 51% of the voting power of the then-outstanding voting securities of such corporation or person immediately after such sale or transfer is directly or indirectly beneficially held in the aggregate by the former shareholders of the Company immediately prior to such transaction or series of transactions; |
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(3) | a person, within the meaning of Section 3(a)(9) or 13(d)(13) (as in effect on the date of the award) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), becomes the beneficial owner (as defined in Rule 13d-3 of the Securities and Exchange Commission pursuant to the Exchange Act) of (a) 15% or more but less than 35% of the voting power of the then-outstanding voting securities of the Company without prior approval of the Company’s Board, or (b) 35% or more of the voting power of the then-outstanding voting securities of the Company; provided, however, that the foregoing does not apply to any such acquisition that is made by (i) any Subsidiary of the Company (ii) any employee benefit plan of the Company or any Subsidiary or (iii) any person or group of which employees of the Company or of any Subsidiary control a greater than 25% interest unless the Board determines that such person or group is making a “hostile acquisition”; or |
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(4) | a majority of the members of the Board are not Continuing Directors, where a “Continuing Director” is any member of the Board who (x) was a member of the Board of Directors of Forest City Enterprises, Inc. immediately prior to the Effective Date or (y) was nominated for election or elected to such Board with the affirmative vote of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election. |
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E. | CODE means the Internal Revenue Code of 1986, as amended from time to time. |
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F. | COMPANY means Forest City Realty Trust, Inc. |
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G. | COMPENSATION COMMITTEE or COMMITTEE means the Compensation Committee of the Board of Directors, as described in Section 3-A of the Plan. |
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H. | COVERED EMPLOYEE means a Grantee who is, or is determined by the Committee to be likely to become, a “covered employee” within the meaning of Section 162(m) of the Code. |
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I. | DATE OF GRANT means the date specified by the Committee on which a grant of Option Rights or Stock Appreciation Rights or a grant or sale of Restricted Shares, Restricted Stock Units or Performance Shares shall become effective, which shall not be earlier than the date on which the Committee takes action with respect thereto. |
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J. | DEFERRAL PERIOD means the period of time during which Restricted Stock Units are subject to deferral limitations under Section 8 of the Plan. |
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K. | EFFECTIVE DATE means December 31, 2015. |
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L. | EFFECTIVE TIME means 11:59 p.m. on the Effective Date. |
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M. | FREE-STANDING APPRECIATION RIGHT means an Appreciation Right granted pursuant to Section 9 of the Plan that is not granted in tandem with an Option Right or similar right. |
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N. | GRANTEE means an employee of the Company or a Subsidiary or a Nonemployee Director to whom an Option Right, Appreciation Right, or an award of Restricted Shares, Restricted Stock Units or Performance Shares has been granted under the Plan. |
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O. | INCENTIVE STOCK OPTIONS means Option Rights that are intended to qualify as “Incentive Stock Options” under Section 422 of the Code or any successor provision. |
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P. | MANAGEMENT OBJECTIVES means the measurable performance objective or objectives established pursuant to the Plan for Grantees who have received grants of Performance Shares or, when so determined by the Committee, received grants of Option Rights, Restricted Shares, Restricted Stock Units or Appreciation Rights pursuant to the Plan. Management Objectives may be described in terms of Company-wide objectives or objectives that are related to the performance of the individual Grantee or of the Subsidiary, division, department, region or function within the Company or Subsidiary in which the Grantee is employed. The Management Objectives may be made relative to the performance of other companies. The Management Objectives applicable to any Qualified Performance-Based Award to a Covered Employee shall be based on specified levels of or growth in or relative to peer company performance in one or more of the following criteria: |
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(1) | Assets (e.g., net asset value); |
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(2) | Capital (e.g., working capital); |
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(3) | Cash Flow (e.g., EBDT [earnings before depreciation, amortization and deferred taxes], operating cash flow, total cash flow, cash flow in excess of cost of capital, residual cash flow, cash flow return on investment or FFO [funds from operations]); |
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(4) | Liquidity measures (e.g., available cash and credit, total debt ratio, debt-to-EBDT ratio or net operating income-to-debt ratio); |
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(5) | Margins (e.g., profits divided by revenues, operating margins, gross margins or material margins divided by revenues); |
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(6) | Productivity (e.g., productivity improvement); |
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(7) | Profits (e.g., net income, operating income, EBT [earnings before taxes], EBIT [earnings before interest and taxes], EBDT, FFO, residual or economic earnings, earnings or EBDT per share - these profitability criteria could be measured subject to GAAP definitions); |
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(8) | Sales or expenses (e.g., revenue growth, reduction in expenses, sales and administrative costs divided by sales or sales and administrative costs divided by profits); and |
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(9) | Stock price (e.g., stock price appreciation or total shareholder return). |
In addition to the returns and ratios mentioned above, the management objectives may be based on any other ratios or returns using the criteria mentioned above, including: economic value added; net asset ratio; debt-to-capital ratio; working capital divided by sales; and profits or cash flow returns on assets, designated assets, invested capital, net capital employed or equity (including return on net assets, return on capital or invested capital, or total return, meaning change in net asset value plus or minus net cash flow).
If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which we conduct our business, or other events or circumstances render the Management Objectives unsuitable, the Committee may in its discretion modify such Management Objectives or the related minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable, except in the case of a Qualified Performance-Based Award where such action would result in the loss of the otherwise available exemption under Section 162(m) of the Code. In such case, the Committee shall not make any modification of the Management Objectives or minimum acceptable level of achievement.
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Q. | MARKET VALUE PER SHARE means the fair market value of the Shares as determined by the Committee from time to time. |
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R. | NONEMPLOYEE DIRECTOR means a member of the Board who is not an employee of the Company or any Subsidiary. |
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S. | NONQUALIFIED STOCK OPTIONS means options which do not qualify as Incentive Stock Options within the meaning of Section 422(b) of the Code or any successor provision. |
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T. | OPTION PRICE means the purchase price payable upon the exercise of an Option Right. |
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U. | OPTION RIGHT means an option to purchase a Share or Shares upon exercise of an option granted pursuant to Section 6 of the Plan. |
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V. | PERFORMANCE PERIOD means, in respect of a Performance Share, a period of time established pursuant to Section 10 of the Plan within which the Management Objectives relating to such Performance Share are to be achieved. |
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W. | PERFORMANCE SHARE means a bookkeeping entry that records the equivalent of one Common Share awarded pursuant to Section 10 of the Plan. |
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X. | PLAN means this Forest City Realty Trust, Inc. 1994 Stock Plan and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. 1994 Stock Plan. |
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Y. | QUALIFIED PERFORMANCE-BASED AWARD means any award or portion of an award that is intended to satisfy the requirements for “qualified performance-based compensation” under Section 162(m) of the Code. |
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Z. | RESTRICTED SHARES means Shares granted or sold pursuant to Section 7 of the Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers referred to in such Section 7 has expired. |
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AA. | RESTRICTED STOCK UNIT means a bookkeeping entry reflecting an award made pursuant to Section 8 of the Plan of the right to receive Shares or cash at the end of a specified Deferral Period. |
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BB. | RETIREMENT means termination of employment with the Company or a Subsidiary at age 65 or older and after five or more years of continuous employment with the Company or a Subsidiary (including employment with Forest City Enterprises, Inc. and its subsidiaries prior to the Effective Time). Approved absence or leave from the Company or a Subsidiary shall not be considered an interruption of employment for purposes of the Plan. |
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CC. | RULE 16b-3 means Rule 16b-3 of the Securities and Exchange Commission (or any successor rule to the same effect), as in effect from time to time. |
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DD. | SHARES means shares of the Company’s Class A Common Stock, $0.01 par value. |
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EE. | SPREAD means, in the case of an Option Right, the excess of the Market Value per Share of the Shares on the date when Option Rights are surrendered in payment of the Option Price of other Option Rights, over the Option Price provided for in the surrendered Option Right, in the case of a Free-standing Appreciation Right, the amount by which the Market Value per Share on the date when any such right is exercised exceeds the Base Price specified in such right or, in the case of a Tandem Appreciation Right, the amount by which the Market Value per Share on the date when any such right is exercised exceeds the Option Price specified in the related Option Right. |
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FF. | SUBSIDIARY means a corporation, company or other entity (i) more than 50 percent of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture or unincorporated association), but more than 50 percent of whose ownership interest representing the right generally to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company, except that for purposes of determining whether an Option Right may qualify as an Incentive Stock Option, “Subsidiary” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the employer corporation, in which chain each of the corporations other than the last corporation in the chain owns stock possessing 50 percent or more of the total combined voting power represented by all classes of stock in one of the other corporations in such chain. |
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GG. | TANDEM APPRECIATION RIGHT means an Appreciation Right granted pursuant to Section 9 of the Plan that is granted in tandem with an Option Right. |
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HH. | Wherever used herein, unless indicated otherwise, words in the masculine form shall be deemed to refer to females as well as to males. |
3. ADMINISTRATION
The Plan shall be administered by the Compensation Committee. The Committee shall be composed of not less than three members of the Board, each of whom shall (i) meet all applicable independence requirements of the New York Stock Exchange, or if the Shares are not traded on the New York Stock Exchange, the principal national securities exchange on which the Shares are traded, (ii) be a “nonemployee director” within the meaning of Rule 16b-3 and (iii) be an “outside director” within the meaning of Section 162(m) of the Code. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee.
Within the limits of the provisions of the Plan, the Committee shall have the plenary authority to determine (i) the employees to whom awards hereunder shall be granted, (ii) the number of shares subject to each award under the Plan; provided that, if the award is an Incentive Stock Option, the aggregate fair market value of the shares (as determined at the time the option is granted) which become exercisable in any calendar year for any employee shall not exceed $100,000, (iii) the form (Incentive Stock Options, Nonqualified Stock Options, Restricted Shares, Restricted Stock Units, Appreciation Rights or Performance Shares) and amount of each award granted, (iv) the provisions of each agreement relating to an award under the Plan, and (v) the limitations, restrictions and conditions applicable to any such award. In making such awards the Committee shall take into consideration the performance of each eligible employee and Nonemployee Director. The determinations of the Committee on all matters regarding the Plan shall be final and conclusive.
Subject to the provisions of the Plan, the Committee may interpret the Plan, and prescribe, amend and rescind rules and regulations relating to it. The interpretation of any provision of the Plan by the Committee shall be final and conclusive.
4. ELIGIBILITY
All awards under the Plan may be granted under the Plan to employees of the Company or any Subsidiary and Nonemployee Directors, as determined by the Committee, based upon the Committee’s evaluation of employees’ and Nonemployee Directors’ duties and their overall performance including current and potential contributions to the Company’s success. Generally, the group of eligible employees includes officers, senior executives, directors who are also employees, and any other members of the Company’s management team or other employees deemed appropriate by the Committee. All determinations by the Committee as to the identity of persons eligible to be granted awards hereunder shall be conclusive.
5. SHARE AWARDS UNDER THE PLAN
Awards under the Plan shall be granted in the form of Incentive Stock Options, Nonqualified Stock Options, Restricted Shares, Restricted Stock Units, Appreciation Rights or Performance Shares as herein defined in Section 2.
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B. | SHARES SUBJECT TO THE PLAN |
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(i) | The aggregate number of Shares that may be issued or transferred (a) upon the exercise of Option Rights or Appreciation Rights, (b) as Restricted Shares |
(and released from all substantial risks of forfeiture), (c) upon the vesting of Restricted Stock Units or (d) in payment of Performance Shares that have been earned under the Plan during the term of the Plan may not exceed 21,750,000 Shares (plus any Shares relating to awards that expire or are forfeited or cancelled), subject to adjustments described in Section 12-A. Such Shares may be Shares of original issuance or treasury shares or a combination of the foregoing.
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(ii) | Shares covered by an award granted under the Plan shall not be counted as used unless and until they are actually issued and delivered to a Grantee. Without limiting the generality of the foregoing, if any portion of the benefit provided by an award granted under the Plan is paid in cash, the Shares that were covered by that award will, to the extent settled in cash, be available for issue or transfer hereunder. Notwithstanding anything to the contrary contained in the foregoing provisions of this Section 5-B: (a) Shares tendered in payment of the Option Price of an Option Right shall not be added to the aggregate plan limit described above; (b) Shares withheld by the Company to satisfy tax withholding obligations shall not be added to the aggregate plan limit described above; (c) Shares that are repurchased by the Company with Option Right proceeds shall not be added to the aggregate plan limit described above; and (d) all Shares covered by an Appreciation Right, to the extent that it is exercised and settled in Shares, shall be considered issued or transferred pursuant to the Plan. |
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(iii) | Notwithstanding anything in this Section 5-B, or elsewhere in this Plan, to the contrary and subject to adjustment as provided in Section 12-A of this Plan: |
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(a) | The aggregate number of Shares actually issued or transferred by the Company upon the exercise of Incentive Stock Options will not exceed 21,750,000 Shares. |
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(b) | No Grantee will be granted Option Rights or Free-standing Appreciation Rights, in the aggregate, for more than 500,000 Shares during any calendar year. |
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(c) | No Grantee will be granted Qualified Performance-Based Awards of Restricted Shares, Restricted Stock Units or Performance Shares in the aggregate, for more than 500,000 Shares in any calendar year. |
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(d) | Notwithstanding any other provision of the Plan to the contrary, the aggregate grant date fair value (computed as of the Date of Grant in accordance with applicable financial accounting rules) of all awards granted to any single Nonemployee Director during any single calendar year shall not exceed $250,000. |
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(iv) | For purposes of clarity, any shares of Forest City Enterprises, Inc. Class A Common Stock issued or transferred prior to the Effective Time pursuant to awards granted by Forest City Enterprises, Inc. under the Plan shall be treated as Shares issued or transferred under the Plan for purposes of the limitations of this Section 5-B. |
6. OPTION RIGHTS
The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting to eligible employees or Nonemployee Directors of options to purchase Shares. Each such grant may utilize any or all of the authorizations, and shall be subject to all of the requirements, contained in the following provisions:
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A. | Each grant shall specify the number of Shares to which it pertains subject to the limitations set forth in Section 5-B of the Plan. |
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B. | Each grant shall specify an Option Price per Share, which may not be less than the Market Value per Share on the Date of Grant. |
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C. | Each grant shall specify whether the Option Price shall be payable (i) in cash or by check acceptable to the Company, (ii) by the actual or constructive transfer to the Company of nonforfeitable, unrestricted Shares owned by the Grantee (or other lawful consideration) having a value at the time of exercise equal to the total Option Price, or (iii) by a combination of such methods of payment. |
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D. | To the extent permitted by law, any grant may provide for deferred payment of the Option Price from the proceeds of sale through a bank or broker on a date satisfactory to the Company of some or all of the Shares to which such exercise relates. |
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E. | Successive grants may be made to the same Grantee whether or not any Option Rights previously granted to such Grantee remain unexercised. |
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F. | Each grant shall specify the period or periods of continuous service by the Grantee with the Company or any Subsidiary which is necessary before the Option Rights or installments thereof will become exercisable and may provide for the earlier exercise of such Option Rights in the event of Retirement, death or disability, a Change of Control or other similar transaction or event. Unless otherwise determined by the Committee at the Date of Grant, the Option Rights shall immediately become exercisable upon the Retirement of the Grantee and shall remain exercisable until 10 years from the Date of Grant. |
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G. | Any grant of Option Rights may specify Management Objectives that must be achieved as a condition to the exercise of such Option Rights. |
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H. | Option Rights grants under the Plan may be (i) options, including Incentive Stock Options, that are intended to qualify under particular provisions of the Code, (ii) |
Nonqualified Stock Options that are not intended to so qualify, or (iii) combinations of the foregoing. Incentive Stock Options may be granted only to Grantees who, as of the Date of Grant, are officers or other key employees of the Company or any Subsidiary.
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I. | No Option Right shall be exercisable more than 10 years from the Date of Grant. |
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J. | Each grant of Option Rights shall be evidenced by an agreement, which shall contain such terms and provisions, consistent with the Plan, as the Committee may approve. |
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K. | Notwithstanding any other provision of this Plan, in no event may any Option Right provide for the payment of dividend equivalents. |
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L. | Notwithstanding any other provision of the Plan or any award agreement to the contrary, to the extent that any Option Right that was intended to qualify as an Incentive Stock Option fails for any reason to so qualify, then such Option Right shall be treated as a Nonqualified Stock Option. |
7. RESTRICTED SHARES
The Committee may also authorize the grant or sale to eligible employees or Nonemployee Directors of Restricted Shares. Each such grant or sale may utilize any or all of the authorizations, and shall be subject to all of the requirements, contained in the following provisions:
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A. | Each such grant or sale shall constitute an immediate transfer of the ownership of Shares to the Grantee in consideration of the performance of services, entitling such Grantee to voting, dividend and other ownership rights, but subject to the substantial risk of forfeiture and restrictions on transfer hereinafter referred to. |
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B. | Each such grant or sale may be made without additional consideration or in consideration of a payment by such Grantee that is less than the Market Value per Share at the Date of Grant. |
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C. | Each such grant or sale to an employee shall provide that the Restricted Shares covered by such grant or sale shall be subject, except (if the Committee shall so determine) in the event of Retirement, death or disability or a Change of Control or other similar transaction or event, for a period of not less than three years, as determined by the Committee at the Date of Grant (which period may lapse on a pro-rated, graded, or cliff basis as determined by the Committee), to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code. Each such grant or sale to a Nonemployee Director shall provide that the Restricted Shares covered by such grant or sale shall be subject, except (if the Committee shall so determine) in the event of death or disability or a Change of Control or other similar transaction or event, for a period of not less than one year, as determined by the Committee at the Date of Grant (which period may lapse on a cliff basis or, to the extent that such |
period exceeds one year, on a pro-rated or graded basis as determined by the Committee), to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code.
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D. | Each such grant or sale shall provide that during the period for which such substantial risk of forfeiture is to continue, the transferability of the Restricted Shares shall be prohibited or restricted in the manner and to the extent prescribed by the Committee at the Date of Grant (which restrictions may include, without limitation, rights of repurchase or first refusal in the Company or provisions subjecting the Restricted Shares to a continuing substantial risk of forfeiture in the hands of any transferee). |
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E. | Any grant of Restricted Shares may specify Management Objectives which, if achieved, will result in termination or early termination of the restrictions applicable to such shares and each such grant shall specify in respect of such specified Management Objectives, a minimum acceptable level of achievement and shall set forth a formula for determining the number of Restricted Shares on which restrictions will terminate if performance is at or above the minimum level, but falls short of full achievement of the specified Management Objectives. |
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F. | Any such grant or sale of Restricted Shares may require that any or all dividends or other distributions paid thereon during the period of such restrictions be automatically deferred and reinvested in additional Restricted Shares, which may be subject to the same restrictions as the underlying award; provided that any dividends with respect to Restricted Shares that vest based on the achievement of Management Objectives shall be accumulated until such award is earned, and the dividends shall not be paid if the Management Objectives are not satisfied. |
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G. | Each grant or sale of Restricted Shares shall be evidenced by an agreement that shall contain such terms and provisions, consistent with the Plan, as the Committee may approve. Unless otherwise directed by the Committee, all certificates representing Restricted Shares shall be held in custody by the Company until all restrictions thereon shall have lapsed, together with a stock power executed by the Grantee in whose name such certificates are registered, endorsed in blank and covering such Shares. |
8. RESTRICTED STOCK UNITS
The Committee may also authorize the granting or sale of Restricted Stock Units to eligible employees or Nonemployee Directors. Each such grant or sale may utilize any or all of the authorizations, and shall be subject to all of the requirements contained in the following provisions:
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A. | Each such grant or sale shall constitute the agreement by the Company to deliver Shares or cash to the Grantee in the future in consideration of the performance of services, but subject to the fulfillment of such conditions during the Deferral Period as the Committee may specify. |
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B. | Each such grant or sale may be made without additional consideration or in consideration of a payment by such Grantee that may be less than the Market Value per Share at the Date of Grant. |
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C. | Each such grant or sale to an employee shall be subject, except (if the Committee shall so determine) in the event of Retirement, death or disability or a Change of Control or other similar transaction or event, to a Deferral Period of not less than three years, as determined by the Committee at the Date of Grant (which period may lapse on a pro-rated, graded, or cliff basis as determined by the Committee). Each such grant or sale to a Nonemployee Director shall be subject, except (if the Committee shall so determine) in the event of death or disability or a Change of Control or other similar transaction or event, to a Deferral Period of not less than one year, as determined by the Committee at the Date of Grant (which period may lapse on a cliff basis or, to the extent that such period exceeds one year, on a pro-rated or graded basis as determined by the Committee). Unless otherwise determined by the Committee at the Date of Grant, the Deferral Period shall immediately lapse upon the Retirement of the Grantee. |
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D. | During the Deferral Period, the Grantee shall have no right to transfer any rights under his or her award and will have no voting rights. |
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E. | Any grant of Restricted Stock Units may specify Management Objectives which, if achieved, will result in termination or early termination of the Deferral Period applicable to such Restricted Stock Units and each such grant shall specify in respect of such specified Management Objectives, a minimum acceptable level of achievement and shall set forth a formula for determining the number of Restricted Stock Units payable upon termination of the Deferral Period if performance is at or above the minimum level, but falls short of full achievement of the specified Management Objectives. |
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F. | Each grant or sale of Restricted Stock Units will specify the time and manner of payment of the Restricted Stock Units that have been earned. Any grant or sale may specify that the amount payable with respect thereto may be paid by the Company in cash, in Shares or in any combination thereof and may either grant to the Grantee or retain in the Committee the right to elect among those alternatives. |
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G. | Each grant or sale of Restricted Stock Units shall be evidenced by an agreement containing such terms and provisions, consistent with the Plan, as the Committee may approve. |
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H. | Each grant or sale of Restricted Stock Units may provide the Grantee with dividend equivalents, on either a current or deferred or contingent basis, and either in cash or in additional Shares, as determined by the Committee in its sole discretion and set forth in the related award agreement; provided that dividend equivalents with respect to Restricted Stock Units that vest based on the achievement of Management |
Objectives shall be accumulated until such award is earned, and the dividend equivalents shall not be paid if the Management Objectives are not satisfied.
9. APPRECIATION RIGHTS
The Committee may also authorize grants to Grantees of Appreciation Rights. An Appreciation Right shall be a right of the Grantee to receive from the Company an amount, which shall be determined by the Committee and shall be expressed as a percentage (not exceeding 100 percent) of the Spread at the time of the exercise of such right, upon such terms and conditions as the Committee may determine in accordance with the following provisions:
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A. | Any grant may specify that the amount payable upon the exercise of an Appreciation Right may be paid by the Company in cash, Shares or any combination thereof and may either grant to the Grantee or reserve to the Committee the right to elect among those alternatives. |
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B. | Any grant may specify that the amount payable upon the exercise of an Appreciation Right shall not exceed a maximum specified by the Committee on the Date of Grant. |
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C. | Any grant may specify (i) a waiting period or periods before Appreciation Rights shall become exercisable and (ii) permissible dates or periods on or during which Appreciation Rights shall be exercisable. |
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D. | Any grant may specify that an Appreciation Right may be exercised only in the event of Retirement, death or disability of the Grantee or a Change of Control of the Company or other similar transaction or event. |
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E. | Each grant shall be evidenced by an agreement, which shall describe the subject Appreciation Rights, identify any related Option Rights, state that the Appreciation Rights are subject to all of the terms and conditions of this Plan and contain such other terms and provisions as the Committee may determine consistent with this Plan. |
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F. | Any grant of Appreciation Rights may specify Management Objectives that must be achieved as a condition of the exercise of such rights. |
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G. | Regarding Tandem Appreciation Rights only: Each grant shall provide that a Tandem Appreciation Right may be exercised only (i) at a time when the related Option Right (or any similar right granted under any other plan of the Company) is also exercisable and the Spread is positive and (ii) by surrender of the related Option Right (or such other right) for cancellation. |
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H. | Notwithstanding any other provision of this Plan, in no event may any Appreciation Right provide for the payment of dividend equivalents. |
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I. | Regarding Free-standing Appreciation Rights only: |
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(i) | Each grant shall specify in respect of each Free-standing Appreciation Right a Base Price per Common Share, which shall be equal to or greater than the Market Value per Share on the Date of Grant. |
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(ii) | Successive grants may be made to the same Grantee regardless of whether any Free-standing Appreciation Rights previously granted to such Grantee remain unexercised. |
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(iii) | Each grant shall specify the period or periods of continuous employment of the Grantee by the Company or any Subsidiary that are necessary before the Free-standing Appreciation Rights or installments thereof shall become exercisable, and any grant may provide for the earlier exercise of such rights in the event of Retirement, death or disability of the Grantee or a change in control of the Company or other similar transaction or event. Unless otherwise determined by the Committee at the Date of Grant, the Free-standing Appreciation Rights shall immediately become exercisable upon the Retirement of the Grantee and shall remain exercisable until 10 years from the Date of Grant. |
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(iv) | No Free-standing Appreciation Right granted under this Plan may be exercised more than 10 years from the Date of Grant. |
10. PERFORMANCE SHARES
The Committee may also authorize the granting of Performance Shares that will become payable to a Grantee upon achievement of specified Management Objectives during the Performance Period. Each such grant may utilize any or all of the authorizations, and shall be subject to all of the requirements, contained in the following provisions:
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A. | Each grant will specify the number of Performance Shares to which it pertains, which number may be subject to adjustment to reflect changes in compensation or other factors; provided, however, that no such adjustment will be made in the case of a Qualified Performance-Based Award where such action would result in the loss of the otherwise available exemption of the award under Section 162(m) of the Code. |
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B. | The Performance Period with respect to each Performance Share will be such period of time (not less than one year), as will be determined by the Committee at the time of grant which may be subject to earlier lapse or other modification in the event of the Retirement, death or disability of a Grantee, or a Change of Control of the Company or other similar transaction or event. |
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C. | Any grant of Performance Shares will specify Management Objectives which, if achieved, will result in payment or early payment of the award, and each grant may specify in respect of such Management Objectives a minimum acceptable level of achievement and may set forth a formula for determining the number of Performance Shares that will be earned if performance is at or above the minimum or threshold |
level or levels, or is at or above the target level or levels, but falls short of maximum achievement of the specified Management Objectives. The grant of Performance Shares will specify that, before the Performance Shares will be earned and paid, the Committee must certify that the Management Objectives have been satisfied.
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D. | Each grant will specify the time and manner of payment of Performance Shares that have been earned. Each grant will specify that the amount payable with respect thereto may be paid by the Company in cash, in Shares or in any combination thereof and may either grant to the Grantee or retain in the Committee the right to elect among those alternatives. |
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E. | Any grant of Performance Shares may specify that the amount payable or the number of Shares issued with respect thereto may not exceed maximums specified by the Committee at the Date of Grant. |
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F. | Each grant of Performance Shares will be evidenced by an agreement and will contain such other terms and provisions, consistent with this Plan, as the Committee may approve. |
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G. | Each grant Performance Shares may provide the Grantee with dividend equivalents, either in cash or in additional Shares, as determined by the Committee in its sole discretion and set forth in the related award agreement; provided that any such dividend equivalents shall be accumulated until the Performance Shares are earned, and the dividend equivalents shall not be paid if the Management Objectives are not satisfied. |
11. DURATION
No awards may be granted under this Plan after March 13, 2023, but all grants made on or prior to such date shall continue in effect thereafter subject to the terms of the Plan.
12. MISCELLANEOUS
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A. | ADJUSTMENTS IN THE EVENT OF CHANGE IN COMMON STOCK |
The Committee shall make or provide for such adjustments in the numbers of Shares covered by outstanding Option Rights, Restricted Shares, Restricted Stock Units, Appreciation Rights or Performance Shares granted hereunder, in the price per share applicable to such Option Rights and Appreciation Rights and in the kind of shares covered thereby, as the Committee, in its sole discretion, exercised in good faith, may determine is equitably required to prevent dilution or enlargement of the rights of Grantees that otherwise would result from (i) any stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, or (ii) any merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities, or (iii) any other corporate transaction
or event having an effect similar to any of the foregoing. With respect to each adjustment contemplated by the foregoing sentence, no such adjustment shall be made to the extent that such adjustment would cause an award to violate the provisions of Section 409A of the Code. Moreover, in the event of any such transaction or event, the Committee, in its discretion, may provide in substitution for any or all outstanding awards under the Plan such alternative consideration as it, in good faith, may determine to be equitable in the circumstances and may require in connection therewith the surrender of all awards so replaced in a manner that complies with Section 409A of the Code. The Committee shall also make or provide for such adjustments in the numbers of Shares specified in Section 5-B of the Plan as the Committee in its sole discretion, exercised in good faith, may determine is appropriate to reflect any transaction or event described in this Section 12-A; provided, however, that any such adjustment to the number specified in Section 5-B(iii)(a) will be made only if and to the extent that such adjustment would not cause any Option Right intended to qualify as an Incentive Stock Option to fail to qualify.
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(i) | Except as provided in Section 12-B(iii) below, no Option Right, Restricted Share, Restricted Stock Unit, Appreciation Right or Performance Share granted under the Plan will be transferable by a Grantee other than by will or the laws of descent and distribution. Except as otherwise determined by the Committee, Option Rights and Appreciation Rights will be exercisable during the Grantee’s lifetime only by him or her or by his or her guardian or legal representative. |
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(ii) | The Committee may specify at the Date of Grant that part or all of the Shares that are (a) to be issued or transferred by the Company upon the exercise of Option Rights or Appreciation Rights or upon payment under any grant of Restricted Stock Units or Performance Shares or (b) no longer subject to the substantial risk of forfeiture and restrictions on transfer referred to in Section 7 of the Plan, will be subject to further restrictions on transfer. |
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(iii) | The Committee may determine that Option Rights (other than Incentive Stock Options), Restricted Shares, Restricted Stock Units, Performance Shares or Appreciation Rights may be transferable by a Grantee, without payment of consideration therefor by the transferee, only to any one or more members of the Grantee’s immediate family; provided, however, that (a) no such transfer shall be effective unless reasonable prior notice thereof is delivered to the Company and such transfer is thereafter effected in accordance with any terms and conditions that shall have been made applicable thereto by the Company or the Board and (b) any such transferee shall be subject to the same terms and conditions hereunder as the Grantee. For the purposes of this Section 12-B, the term “immediate family” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, |
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Grantee’s household (other than a tenant or Grantee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Grantee) control the management of assets, and any other entity in which these persons (or the Grantee) own more than fifty percent of the voting interests.
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C. | APPLICATION OF PROCEEDS |
The proceeds received by the Company from the sale of Shares under the Plan shall be used for general corporate purposes.
Upon the issuance of any Shares or any payment made or benefit realized by a Grantee under the Plan, the Company shall have the right to require the Grantee to remit to the Company an amount payable in cash, money order, certified check or cashier’s check that is sufficient to satisfy all federal, state and local withholding tax requirements prior to the delivery of any certificate(s) for shares of common stock or any payment or benefit.
The Committee, in its sole discretion, may permit or require the Grantee to pay such taxes through the withholding of Shares otherwise deliverable to such Grantee or the delivery to the Company of Shares otherwise acquired by the Grantee. In no event, however, shall the Company accept Shares for payment of taxes in excess of required tax withholding rates, except that, in the discretion of the Committee, a Grantee or such other person may surrender Shares owned by the Grantee to satisfy any tax obligations resulting from any such transaction.
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E. | RIGHT TO TERMINATE EMPLOYMENT |
Nothing in the Plan or any agreement entered into pursuant to the Plan shall confer upon any Grantee the right to continue in the employment of the Company or any Subsidiary or service as a Nonemployee Director or affect any right which the Company has to terminate any Grantee’s employment or other service at any time.
The Plan and all grants and awards and actions taken thereunder shall be construed and its provisions enforced and administered in accordance with the internal substantive laws of Maryland, except to the extent that such laws may be superseded by any federal laws.
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G. | AWARDS NOT TREATED AS COMPENSATION UNDER BENEFIT PLANS |
No awards under the Plan shall be considered as compensation under any employee benefit plan of the Company, except as specifically provided in any such plan or as otherwise determined by the Board of Directors.
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H. | ELIMINATION OF FRACTIONAL SHARES |
If, under any provision of the Plan or formula used to calculate award levels of Option Rights, Restricted Shares, Restricted Stock Units, Appreciation Rights or Performance Shares, the number so computed is not a whole number, such number of shares shall be rounded down to the next whole number.
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I. | PROHIBITION OF RE-PRICING |
Except for adjustments made pursuant to Sections 12-A or 13, neither the Board nor the Committee will, without the further approval of the shareholders of the Company, authorize the amendment of any outstanding Option Right or Appreciation Right to reduce the Option Price or Base Price. No Option Right or Appreciation Right will be cancelled and replaced with an award having a lower Option Price or Base Price, or for another award, or for cash without further approval of the shareholders of the Company, except as provided in Sections 12-A or 13. Furthermore, no Option Right or Appreciation Right will provide for the payment, at the time of exercise, of a cash bonus or grant or sale of another award without further approval of the shareholders of the Company. This Section 12-I is intended to prohibit the re-pricing of “underwater” Option Rights or Appreciation Rights without shareholder approval and will not be construed to prohibit the adjustments provided for in Sections 12-A or 13.
Notwithstanding any other provision of the Plan to the contrary, any award granted hereunder shall be subject to forfeiture or repayment pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by the Company from time to time, as such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange.
13. CHANGE OF CONTROL
In the event of a Change of Control, the Committee, in its sole discretion, may provide for or take such actions, if any, as it deems necessary or desirable with respect to any award that is outstanding as of the date of the Change of Control. Such actions may include, without limitation: (a) the acceleration of the vesting, settlement and/or exercisability of an award; (b) the payment of a cash amount in exchange for the cancellation of an award; (c) the cancellation of Option Rights and/or Appreciation Rights without payment therefor if the Market Value per Share on the date of the Change of Control does not exceed the Option
Price or Base Price per Share of the applicable awards; and/or (d) the issuance of substitute awards that substantially preserve the value, rights and benefits of any affected awards.
14. COMPLIANCE WITH SECTION 409A OF THE CODE
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A. | To the extent applicable, it is intended that this Plan and any grants made hereunder comply with the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to the Grantees. This Plan and any grants made hereunder shall be administered in a manner consistent with this intent. Any reference in this Plan to Section 409A of the Code will also include any regulations or any other formal guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service. |
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B. | Neither a Grantee nor any of a Grantee’s creditors or beneficiaries shall have the right to subject any deferred compensation (within the meaning of Section 409A of the Code) payable under this Plan and grants hereunder to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A of the Code, any deferred compensation (within the meaning of Section 409A of the Code) payable to a Grantee or for a Grantee’s benefit under this Plan and grants hereunder may not be reduced by, or offset against, any amount owing by a Grantee to the Company or any of its affiliates. |
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C. | If, at the time of a Grantee’s separation from service (within the meaning of Section 409A of the Code), (i) the Grantee shall be a specified employee (within the meaning of Section 409A of the Code and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A of the Code) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to avoid taxes or penalties under Section 409A of the Code, then the Company shall not pay such amount on the otherwise scheduled payment date but shall instead pay it, without interest, on the first business day of the seventh month after such six-month period. |
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D. | Notwithstanding any provision of this Plan and grants hereunder to the contrary, in light of the uncertainty with respect to the proper application of Section 409A of the Code, the Company reserves the right to make amendments to this Plan and grants hereunder as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A of the Code. In any case, a Grantee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on a Grantee or for a Grantee’s account in connection with this Plan and grants hereunder (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its affiliates shall have any obligation to indemnify or otherwise hold a Grantee harmless from any or all of such taxes or penalties. |
15. EFFECTIVE DATE
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A. | The Plan is amended and restated as set forth herein on the Effective Date, effective as of the Effective Time. |
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B. | Except as otherwise provided herein, all awards granted prior to March 14, 2013, shall be governed by the terms of the Plan in effect prior to such date, and all awards granted during the period beginning on March 14, 2013, and ending prior to approval of the Plan by the Company’s shareholders on June 13, 2013 shall be subject to the provisions of Section 5-B of the Plan in effect immediately prior to March 14, 2013. |
16. AMENDMENT AND TERMINATION OF THE PLAN
The Plan may be amended from time to time or suspended or terminated by the Committee; provided, however, that any amendment that must be approved by the shareholders of the Company in order to comply with applicable law or the rules of the New York Stock Exchange or, if the Shares are not traded on the New York Stock Exchange, the principal national securities exchange upon which the Shares are traded or quoted, shall not be effective unless and until such approval has been obtained. Without limiting the generality of the foregoing, the Committee may amend the Plan to eliminate provisions which are no longer necessary as a result of changes in tax or securities laws or regulations, or in the interpretation thereof.
FOREST CITY REALTY TRUST, INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT, effective as of __________ by and between FOREST CITY REALTY TRUST, INC. (the “Company”) and _________, an employee of the Company or a Subsidiary (the “Grantee”). All capitalized terms have the meanings set forth in the Forest City Realty Trust, Inc. 1994 Stock Plan (the “Plan”) unless otherwise specifically provided.
WHEREAS, the Board of Directors is of the opinion that the interests of the Company and its shareholders will be advanced by affording present and future executives and key employees an opportunity to secure stock ownership in the Company; and
WHEREAS, the execution of a stock option agreement substantially in the form hereof has been authorized by a resolution of the Committee duly adopted on ___________________.
NOW THEREFORE, pursuant to the Plan, and subject to the terms and conditions thereof and the terms and conditions hereinafter set forth, the Company hereby confirms to the Grantee, effective as of ___________ (the “Date of Grant”), the grant of Option Rights to purchase an aggregate of _________ Shares. As set forth in the table below, all or a portion of the Option Rights may be intended to constitute an “incentive stock option” within the meaning of Section 422 of the Code (such Option Rights, if any, the “Incentive Stock Option Rights”), and all or a portion of the Option Rights may be intended to constitute a nonqualified stock option (such Option Rights, if any, the “Nonqualified Option Rights”). The Nonqualified Option Rights shall not be treated as an “incentive stock option” within the meaning of Section 422 of the Code. Further, to the extent that any Incentive Stock Option Rights fail for reason to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, then such Incentive Stock Option Rights shall be treated as Nonqualified Option Rights.
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Incentive Stock Option Rights: | _______ Shares |
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Nonqualified Option Rights: | _______ Shares |
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1. | DEFINITIONS. All capitalized terms have the meanings set forth in the Plan unless otherwise specifically provided. As used in this Agreement, the following term has the following meaning: |
“Disability” means disability as defined in the Long Term Disability Plan of the Company (or a Subsidiary, as applicable), as amended from time to time.
“Subsidiary” has the meaning set forth in the Plan, except that with respect to any Incentive Stock Option Rights only, “Subsidiary” shall mean any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of such corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
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2. | OPTION PRICE. The Option Price with respect to the Shares covered by the Option Rights shall be $______ per Share, the Market Value per Share as of the close of business on the Date of Grant. |
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3. | OPTION PERIOD; VESTING AND TIME OF EXERCISE OF OPTION RIGHTS. The Option Rights shall continue in effect for a period of 10 years from the Date of Grant, except as such option period may be reduced as hereinafter provided in Section 6 of this Agreement as a result of certain terminations of the employment of the Grantee. |
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(a) | The Option Rights shall be exercisable cumulatively over the option period only in accordance with the following terms, conditions and provisions: |
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(i) | Except as otherwise provided in the Plan or this Agreement, the Option Rights shall not be exercisable prior to the first anniversary of the Date of Grant, and upon such day the Option Rights shall automatically become vested and exercisable with respect to ___% of the Option Rights. Thereafter, upon the second anniversary of the Date of Grant, the Grantee may exercise an additional ___% up to ___% of the Option Rights. Upon the third anniversary and thereafter until the tenth anniversary of the Date of Grant, the Grantee may exercise an additional ___% up to ___% of the Option Rights. |
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(ii) | Except as hereinafter provided in Section 6 of this Agreement, no part of the Option Rights may be exercised unless the Grantee is, at the date of such exercise, in the employ of the Company or a Subsidiary, and shall have been continuously so employed since the Date of Grant. Approved absence or leave from the Company, or a Subsidiary, shall not be considered an interruption of employment for the purposes of this Agreement. |
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4. | METHOD OF EXERCISE. Shares may be purchased pursuant to this Agreement only upon receipt by the Secretary of the Company of notice in writing from the Grantee of his or her intention to purchase, specifying the number of Shares as to which the Grantee desires to exercise the Option Rights, and said notice shall be accompanied by the full amount of the Option Price in the form of: cash, a certified or official bank check, a money order, a cashier’s check, or in Shares owned by the Grantee and having a market value at the time of exercise equal to the total Option Price of the Shares subject to such exercise. Such form of written notice is attached hereto. In no event shall the Option Rights be exercisable as to less than 25 Shares at any one time or all of the remaining Shares then subject to the Option Rights, if less than 25. |
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5. | OPTION RIGHTS CONFER NO RIGHTS AS COMMON SHAREHOLDER. The Grantee shall not be entitled to any privileges of ownership with respect to Shares subject to the Option Rights, unless and until purchased and delivered upon the exercise of the Option Rights, in whole or in part, and the Grantee becomes a shareholder of record with respect to such delivered Shares. The Grantee shall not be considered a shareholder of the Company with respect to any such Shares not so purchased and delivered. |
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6. | TERMINATION OF OPTION RIGHTS. In the event the employment of the Grantee with the Company or a Subsidiary shall terminate under any circumstance other than those specified in Section 6(b), (c) or (d) below, all rights to purchase Shares pursuant to the Option Rights (including rights to purchase Shares thereunder which have accrued but which then remain unexercised) shall forthwith cease and terminate. |
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(a) | In the event of the termination of the Grantee’s employment because of Disability, the Option Rights may be exercised by the Grantee, to the extent he or she was entitled to do so on the date of termination, but not later than ten years from the Date of Grant. |
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(b) | If, with the consent of the Committee, the Grantee’s employment shall terminate by reason of Retirement, the Option Rights shall become immediately exercisable by the Grantee on the date of his or her Retirement and shall remain exercisable until ten years from the Date of Grant. |
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(c) | If the Grantee shall die during his or her employment with the Company or a Subsidiary or during a period of Disability, the Option Rights shall become immediately exercisable if the Grantee was otherwise Retirement eligible and may be exercised by the legal representative of the Grantee, to the extent the Grantee was entitled to exercise the Option Rights at the time of his or her death for a one-year period from the date of death, but not later than ten years from the Date of Grant. |
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(d) | To the extent that the Option Rights shall not have been exercised within any applicable period specified in Section 6(b), (c) or (d) above, all further rights to purchase Shares pursuant to such Option Rights shall cease and terminate at the expiration of such period. |
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7. | TRANSFERABILITY. Except as provided in Section 7(b), the Option Rights may not be transferred by the Grantee other than by will or the laws of descent and distribution or pursuant to a domestic relations order. During the Grantee’s lifetime, the Option Rights are exercisable only by the Grantee or, in the case of the Grantee’s legal incapacity, only by his or her guardian or legal representative, provided, however, that if so determined by the Committee, the Grantee may, in a manner designated by the Committee, designate a beneficiary to exercise the rights of the Grantee under the Option Rights upon the death of the Grantee. Absent such a designation, in a case of death, the Option Rights shall be exercisable by the executor, administrator or legal representative of the deceased Grantee. |
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(a) | The Nonqualified Option Rights only may be transferable by the Grantee, without payment of consideration therefor by the transferee, only to any one or more members of the Grantee’s immediate family; provided, however, that (i) no such transfer shall be effective unless reasonable prior notice thereof is delivered to the Company and such transfer is thereafter effected in accordance with any terms and conditions that shall have been made applicable thereto by the Committee and (ii) any such transferee shall be subject to the same terms and conditions hereunder as the Grantee. For the purposes of this Section 7, the term “immediate family” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father- |
in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Grantee’s household (other than a tenant of the Grantee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons (or the Grantee) control the management of assets, and any other entity in which these persons (or the Grantee) own more than fifty percent of the voting interests.
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(b) | Except as permitted by the above, the Option Rights may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of (whether by operation of law or otherwise or be subject to execution, attachment or similar process). Any attempted sale, transfer, assignment, pledge, hypothecation or encumbrance, or other disposition of the Option Rights shall be null and void. |
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8. | CHANGE IN STOCK CAPITALIZATION. The number and kind of Shares covered by the Option Rights and the price per share applicable to such Option Rights shall be subject to adjustment as provided in Section 12-A of the Plan. |
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9. | EMPLOYMENT RIGHTS. Nothing contained in the Plan or this Agreement shall confer upon the Grantee any right to be continued in the employment of the Company or any Subsidiary, or interfere in any way with the right of the Company, or such Subsidiary, to terminate his or her employment at any time. |
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10. | RELATION TO OTHER BENEFITS. Any economic or other benefit to the Grantee under this Agreement will not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or a Subsidiary and will not affect the amount of any insurance coverage available to any beneficiary under any insurance plan covering employees of the Company or a Subsidiary. |
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11. | AMENDMENTS TO PLAN AND AGREEMENT. The Committee may, without further action by the shareholders, from time to time, amend, alter, suspend or terminate the Plan, except as otherwise required by applicable law or the rules of the New York Stock Exchange or, if the Shares are not traded on the New York Stock Exchange, the principal national securities exchange upon which the Shares are traded or quoted. |
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(a) | This Agreement may not be modified orally. Any amendment to the Plan will be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment will adversely affect the rights of the Grantee with respect to this Option Right without the Grantee’s written consent. |
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12. | DELIVERING OF SHARES. The Grantee shall give notice of his or her intent to exercise Option Rights, and Shares shall be delivered by the Company after full payment of the Option Price in respect of the Shares delivered, subject to the conditions of Section 4 hereof. |
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13. | CANCELLATION OF OPTION RIGHTS. The Committee may cancel any unexercised Option Rights if the Grantee, and while having rights to purchase hereunder, engages in any employment or activity which in any way directly or indirectly, diverts or attempts to divert from the Company any business whatsoever, and which in the opinion of the Committee is contrary to the best interests of the Company. |
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14. | CLAWBACK POLICY. Notwithstanding any other provision of this Agreement to the contrary, the Grantee may be required to forfeit any or all of the Option Rights and repay any or all of the Shares acquired hereunder pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by the Company or a Subsidiary from time to time, as any such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange. |
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15. | AGREEMENT SUBJECT TO THE PLAN. This Agreement is subject to the provisions of the Plan and shall be interpreted in accordance therewith. The Grantee hereby acknowledges receipt of a copy of the Plan. |
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16. | COMPLIANCE WITH LAW. The Company shall make reasonable efforts to comply with all applicable federal, state and other applicable securities laws with respect to the Option Rights; provided, however, notwithstanding any other provision of this Agreement, the Company will not be obligated to issue any securities pursuant to this Agreement if the issuance thereof would result in a violation of any such law. |
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17. | SEVERABILITY. In the event that one or more of the provisions of this Agreement are invalidated for any reason by a court of competent jurisdiction, any provision so invalidated will be deemed to be separable from the other provisions hereof, and the remaining provisions hereof will continue to be valid and fully enforceable. |
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18. | GOVERNING LAW. This Agreement shall be governed by the internal substantive laws of the State of Maryland. |
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19. | WITHHOLDING TAXES. If the Company shall be required to withhold any federal, state, local or foreign tax in connection with the exercise of the Option Rights, the Grantee shall pay the tax or make provisions that are satisfactory to the Company for the payment thereof. The Grantee may elect, pursuant to procedures established by the Company, to satisfy all or any part of any such withholding obligation by surrendering to the Company a portion of the Shares that are issuable to the Grantee upon the exercise of the Option Rights. If such election is made, the Shares so surrendered by the Grantee shall be credited against any such withholding obligation at their Market Value per Share on the date of such surrender. In no event, however, shall the Company accept Shares for payment of taxes in excess of required tax withholding rates. |
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20. | MANDATORY NOTICE OF DISQUALIFYING DISPOSITION. Without limiting any other provision hereof, the Grantee hereby agrees that if he or she disposes (whether by sale, |
exchange, gift, or otherwise) of Shares received from the exercise of Incentive Stock Option Rights (if any) within one year of the Date of Grant or the exercise of such Incentive Stock Option Rights by the Grantee, the Grantee shall notify the Company of such disposition in writing within 30 days from the date of such disposition. Such written notice shall state the principal terms of such disposition and the type and amount of the consideration received for such Incentive Stock Option Rights by the Grantee in connection therewith.
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21. | GENERAL. It is understood that wherever masculine pronouns are used in this Agreement, it is intended to include the feminine pronouns as well as the masculine. |
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22. | ENTIRE AGREEMENT. Subject to Section 15, this Agreement represents the entire agreement between the Company and the Grantee with respect to these Option Rights and supersedes all prior agreements whether in writing or otherwise. |
The undersigned Grantee hereby accepts the award of Option Rights granted pursuant to this Agreement, subject to the terms and conditions of the Plan and the terms and conditions set forth herein.
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[Name] |
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Date:_______________________________ |
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Executed in the name and on behalf of the Company at Cleveland, Ohio as of the ___ day of __________, ______.
FOREST CITY REALTY TRUST, INC.
By:
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Title: | President and Chief Executive Officer |
FOREST CITY REALTY TRUST, INC.
RESTRICTED SHARES AGREEMENT
THIS RESTRICTED SHARES AGREEMENT (this “Agreement”) effective as of _____________ is made by and between Forest City Realty Trust, Inc. (the “Company”), and _________, the Grantee (the “Grantee”). All capitalized terms have the meanings set forth in the Forest City Realty Trust, Inc. 1994 Stock Plan (the “Plan”) unless otherwise specifically provided.
WHEREAS, the Board of Directors is of the opinion that the interests of the Company and its shareholders will be advanced by affording present and future executives and key employees an opportunity to secure stock ownership in the Company; and
WHEREAS, the execution of a restricted shares agreement substantially in the form hereof has been authorized by a resolution of the Committee duly adopted on ___________________.
NOW, THEREFORE, pursuant to the Plan, and subject to the terms and conditions thereof and the terms and conditions hereinafter set forth, the Company hereby confirms to the Grantee, effective as of ___________(the “Date of Grant”), the number of Restricted Shares that are shown on the signature page of this Agreement as the Original Award.
1. Definitions. All capitalized terms have the meanings set forth in the Plan unless otherwise specifically provided. As used in this Agreement, the following terms have the following meanings:
“Cause” means gross neglect of duty, dishonesty, conviction of a felony, disloyalty, intoxication, drug addiction, or other similar misconduct adverse to the best interests of the Company.
“Disability” means disability as defined in the Long Term Disability Plan of the Company (or a Subsidiary, as applicable), as amended from time to time.
“Original Award” means the number of Shares indicated as the Original Award on the signature page of this Agreement.
2. Issuance of Restricted Shares. The Shares will be treated as issued on the Date of Grant as fully paid and nonassessable Shares, which will be uncertificated, recorded in book-entry form by the Company or its transfer agent, and will bear a legend referring to the restrictions set forth in this Agreement.
3. Restriction on Transfer. The Shares may not be transferred, sold, pledged, exchanged, assigned or otherwise encumbered or disposed of by the Grantee, except to the Company, until they have become nonforfeitable in accordance with Section 4 of this Agreement. Any purported transfer, encumbrance or other disposition of the Shares that is in violation of this Section 3 will be null and void, and the other party to any such purported transaction will not obtain any rights to or interest in the Shares.
4. Vesting.
(a) The Shares will become nonforfeitable upon the occurrence of the following:
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Amount Nonforfeitable | Date Nonforfeitable
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____ of the Original Award | ________ anniversary of the Date of Grant.
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____ of the Original Award | _________ anniversary of the Date of Grant.
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____ of the Original Award | _________ anniversary of the Date of Grant. |
(b) Notwithstanding the provisions of Section 4(a) or Section 5, all of the Shares will immediately become nonforfeitable if the Grantee:
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(i) | ceases to be employed by the Company or a Subsidiary due to the Grantee’s death or Disability, |
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(ii) | ceases to be employed by the Company or a Subsidiary due to the Grantee’s Retirement, with the consent of the Committee, or |
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(iii) | ceases to be employed by the Company or a Subsidiary as the result of a termination by the employer without Cause. |
5. Termination of Rights and Forfeiture of Shares. Except for Shares that have become nonforfeitable, all of the Shares will be forfeited if the Grantee ceases to be employed by the Company or a Subsidiary at any time prior to the ___________anniversary of the Date of Grant.
6. Dividend, Voting and Other Rights. Except as otherwise provided in this Agreement, the Grantee will have all of the rights of a shareholder with respect to the Shares, including the right to vote the Shares and receive any dividends that may be paid thereon; provided, however, that any additional Shares or other securities that the Grantee may become entitled to receive pursuant to a stock dividend, stock split, combination of shares, recapitalization, merger, consolidation, separation or reorganization or any other change in the capital structure of the Company will be subject to the same restrictions as the Shares.
7. Agreement Subject to Plan. This Agreement is subject to the provisions of the Plan and shall be interpreted in accordance therewith. The Grantee hereby acknowledges receipt of a copy of the Plan.
8. Compliance with Law. The Company shall make reasonable efforts to comply with all applicable federal, state and other applicable securities laws with respect to the Restricted Shares; provided, however, notwithstanding any other provision of this Agreement, the Company will not be obligated to issue any securities pursuant to this Agreement if the issuance thereof would result in a violation of any such law.
9. Withholding Taxes. To the extent the Company or a Subsidiary is required to withhold any taxes in connection with the vesting of Shares under this Agreement, then the Grantee shall surrender to the Company a number of the Shares granted hereunder with a value equal to the required withholding (based on the fair market value of the Shares on the date of surrender); provided that in no event shall the value of the Shares surrendered exceed the minimum amount of taxes required to be withheld or such other amount that will not result in a negative accounting impact. If the Company or any Subsidiary is required to withhold any taxes other than in connection with the vesting of Shares under this Agreement (including such taxes as may be required to be withheld in connection with the payment of dividends), then the Company or Subsidiary (as applicable) shall have the right in its sole discretion to (a) withhold such required tax withholding from dividends paid under this Agreement, (b) require the Grantee to pay or provide for payment of the required tax withholding, or (c) deduct the required tax withholding from any amount of salary, bonus, incentive compensation or other amounts otherwise payable in cash to the Grantee (other than deferred compensation subject to Section 409A of the Code).
10. Employment Rights. Nothing contained in the Plan or this Agreement shall confer upon the Grantee any right to be continued in the employment of the Company or any Subsidiary, or interfere in any way with the right of the Company, or such Subsidiary, to terminate his or her employment at any time.
11. Relation to Other Benefits. Any economic or other benefit to the Grantee under this Agreement will not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or a Subsidiary and will not affect the amount of any insurance coverage available to any beneficiary under any insurance plan covering employees of the Company or a Subsidiary.
12. Severability. In the event that one or more of the provisions of this Agreement are invalidated for any reason by a court of competent jurisdiction, any provision so invalidated will be deemed to be separable from the other provisions hereof, and the remaining provisions hereof will continue to be valid and fully enforceable.
13. Governing Law. This Agreement is made under, and will be construed in accordance with, the internal substantive laws of the State of Maryland without regard to conflict of law principles of such state.
14. Restrictive Legends. The Grantee acknowledges that the Shares are subject to the terms of this Agreement and to transfer restrictions imposed by the securities laws, and that each book entry in respect of the Shares will bear a restrictive legend substantially as follows:
The Shares represented by this entry were issued pursuant to a Restricted Shares Agreement effective as of ________ between Forest City Realty Trust, Inc. and the holder named herein, and are subject to the terms and conditions, including restrictions on transfer, of that Agreement. Any purported transfer, encumbrance or other disposition in violation of that Agreement will be null and void.
15. Entire Agreement. Subject to Section 7, this Agreement represents the entire agreement between the Company and the Grantee with respect to these Restricted Shares and supersedes all prior agreements whether in writing or otherwise.
The undersigned Grantee hereby accepts the award of Restricted Shares granted pursuant to this Agreement, subject to the terms and conditions of the Plan and the terms and conditions set forth herein.
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[Name] |
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Date:_______________________________ |
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Executed in the name and on behalf of the Company at Cleveland, Ohio as of the ___ day of ____________, _________.
FOREST CITY REALTY TRUST, INC.
By:
Name: David J. LaRue
Title: President and Chief Executive Officer
Date of Grant:
Original Award: Restricted Shares
1009917.3
FOREST CITY REALTY TRUST, INC.
PERFORMANCE SHARES AGREEMENT
WHEREAS, ________________ (the “Grantee”) is an employee of Forest City Realty Trust, Inc. (the “Company”) or one of its Subsidiaries; and
WHEREAS, the grant of Performance Shares was authorized by a resolution of the Compensation Committee (the “Committee”) of the Board of Directors of the Company that was duly adopted on ___________ (the “Date of Grant”), and the execution of a Performance Shares Agreement substantially in the form hereof (this “Agreement”) to evidence such grant was authorized by a resolution of the Committee that was duly adopted on the Date of Grant; and
WHEREAS, on the Date of Grant the Committee also approved a Statement of Performance Goals (the “Statement of Performance Goals”) setting forth the goals required to be achieved in order for the Grantee to earn some or all of the Performance Shares, up to a maximum of ________% of the Target Performance Shares (as defined below).
NOW THEREFORE, pursuant to the Company’s 1994 Stock Plan (the “Plan”) and subject to the terms and conditions thereof and the terms and conditions hereinafter set forth, the Company hereby confirms to Grantee, effective as of the Date of Grant, the grant of _______________ Performance Shares (the “Target Performance Shares”).
NOW, THEREFORE, the Company and the Grantee hereby agree as follows:
1. Definitions.
All terms used herein with initial capital letters that are defined in the Plan shall have the meanings assigned to them in the Plan, and the following additional terms, when used herein with initial capital letters, shall have the following meanings:
(a) “Cause” shall have the meaning assigned to such term in the Grantee’s employment agreement with the Company or a Subsidiary, or if there is no such employment agreement that defines such term, “Cause” means the Grantee’s gross neglect of duty, dishonesty, conviction of a felony, disloyalty, intoxication, drug addiction or other similar misconduct adverse to the best interests of the Company.
(b) “Disability” means disability as defined under the Long Term Disability Plan of the Company (or a Subsidiary, as applicable), as amended from time to time.
(c) “Management Objectives” means the relative total shareholder return calibrations established by the Committee for the Grantee for the Performance Period covered by this Agreement as set forth in the Statement of Performance Goals. The total number of Performance Shares to be earned by the Grantee shall be determined using the schedules for relative total shareholder return set forth on the Statement of Performance Goals.
(d) “Performance Period” means the period of three years commencing on ________________ and ending on ____________________.
2. Earn-Out of Performance Shares.
(a) Grantee shall be entitled to receive payment with respect to the Target Performance Shares:
(i) Subject to Section 3 hereof, only if Grantee remains in the continuous employ of the Company or a Subsidiary during the entire Performance Period;
(ii) On the basis of the Grantee’s Grant Tier without regard to any changes in the Grantee’s position with the Company or a Subsidiary (e.g., a promotion or demotion) during the Performance Period; and
(iii) Based on the actual performance of the Company during the Performance Period measured against the goals relating to the Management Objectives set forth on the Statement of Performance Goals.
(b) In no event shall the Grantee earn (i) more than ________% of the Target Performance Shares or (ii) any Target Performance Shares if the actual results achieved fall below the threshold level with respect to all of the Management Objectives established for the Grantee for the Performance Period.
(c) Any fraction of a Performance Share resulting from the calculations required in connection with this Agreement shall be rounded down to the nearest full Share.
(d) Following the Performance Period, the Committee shall determine in writing whether and to what extent the goals relating to the Management Objectives have been satisfied for the Performance Period and shall determine in writing the number of Performance Shares that shall have become earned hereunder. It is intended that any Performance Shares payable under this Agreement will qualify as “performance-based compensation” within the meaning of Section 162(m)(4)(C) of the Code (or otherwise be exempt from the application of Section 162(m) of the Code), and this Agreement shall be interpreted and administered in accordance with such intent. In that regard, the Committee may not make any adjustments with respect to the Performance Shares that would result in the loss of the otherwise available exemption of the Performance Shares under Section 162(m)(4)(C) of the Code.
3. Pro Rata Earning of Performance Shares on Death, Disability, Retirement or Involuntary Termination Without Cause. Notwithstanding Section 2 hereof:
(a) If the Grantee’s employment with the Company and its Subsidiaries terminates during the Performance Period and at least one year after the beginning of the Performance Period due to the Grantee’s death or Disability, the Grantee shall become vested and eligible to receive payment of a portion of the Performance Shares, pro-rated based on the number of whole months that the Grantee was employed by the Company or any Subsidiary during the Performance Period. Any pro-rated Performance Shares payable pursuant to this Section 3(a) shall be determined based upon the Target Performance Shares and shall be paid to the Grantee (or to the Grantee’s estate in the event of death) within sixty (60) days following termination of employment.
(b) If the Grantee’s employment with the Company and its Subsidiaries terminates during the Performance Period and either (i) at least one year after the beginning of the Performance Period due to the Grantee’s Retirement, or (ii) at least eighteen months after the beginning of the Performance Period due to the termination of the Grantee’s employment by the Company or a Subsidiary without Cause (and not due to death or Disability), the Grantee shall become vested and eligible to receive payment of a portion of the Performance Shares, pro-rated based on the number of whole months that the Grantee was employed by the Company or any Subsidiary during the Performance Period. Any pro-rated Performance Shares payable pursuant to this Section 3(b) shall be determined based upon actual performance through the end of the Performance Period (as determined by the Committee pursuant to Section 2 hereof) and shall be paid at the time provided in Section 5 hereof.
4. Forfeiture of Award. Except to the extent Grantee has earned the right to receive payment for Performance Shares pursuant to Section 2 or 3 hereof, Grantee’s right to receive payment shall be forfeited automatically and without further notice on the date that Grantee ceases to be an employee of the Company or a Subsidiary prior to the last day of the Performance Period.
5. Payment of Performance Shares. Except as otherwise provided pursuant to Section 3(a), Performance Shares earned as provided in Section 2 or 3 hereof shall be paid to Grantee or his or her executor or administrator, as the case may be, in Shares within two and one-half months after the end of the Performance Period.
6. Transferability. Grantee’s right to receive any Performance Shares shall not be transferable nor assignable by Grantee other than by will or by the laws of descent and distribution.
7. Right to Terminate Employment. Nothing contained in this Agreement shall confer upon Grantee any right with respect to continuance of employment by the Company or any Subsidiary, nor limit or affect in any manner the right of the Company or any Subsidiary to terminate the employment or adjust the compensation of Grantee.
8. Taxes and Withholding. To the extent the Company or any Subsidiary is required to withhold any taxes in connection with the delivery of Shares under this Agreement, then the Company or Subsidiary (as applicable) shall retain a number of Shares otherwise deliverable hereunder with a value equal to the required withholding (based on the fair market value of the Shares on the date of delivery); provided that in no event shall the value of the Shares retained exceed the statutory minimum amount of taxes required to be withheld or such other amount that will not result in a negative accounting impact to the Company or a Subsidiary. If the Company or any Subsidiary is required to withhold any taxes other than in connection with the delivery of Shares under this Agreement, then the Company or affiliate (as applicable) shall have the right in its sole discretion to require the Grantee to pay or provide for payment of the required tax withholding, or to deduct the required tax withholding from any amount of salary, bonus, incentive compensation or other amounts otherwise payable in cash to the Grantee (other than deferred compensation subject to Section 409A of the Code).
9. Payment of Dividends. No dividends shall be accrued or earned with respect to any Performance Shares until such Performance Shares are earned and paid to the Grantee as provided in this Agreement.
10. Adjustments. The number and kind of Shares subject to this Agreement shall be subject to adjustment as provided in Section 12-A of the Plan.
11. Compliance with Section 409A of the Code. To the extent applicable, it is intended that this Agreement be exempt from, or comply with, the provisions of Section 409A of the Code, so that the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to the Grantee. This Agreement and the Plan shall be administered in a manner consistent with this intent. Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986, as amended, and will also include any regulations or any other formal guidance promulgated with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue Service.
12. Compliance with Law. The Company shall make reasonable efforts to comply with all applicable federal and state securities laws with respect to the Performance Shares; provided, however, that notwithstanding any other provision of this Agreement, no Performance Shares shall be paid if the payment thereof would result in a violation of any such law.
13. Clawback Policy. Notwithstanding any other provision of this Agreement to the contrary, the Grantee may be required to forfeit any or all of the Performance Shares and repay any or all of the Shares acquired hereunder pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by the Company or a Subsidiary from time to time, as any such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange.
14. Amendments. Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment shall adversely affect the rights of Grantee under this Agreement without Grantee’s consent (provided, however, that the Grantee’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code).
15. Severability. In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.
16. Relation to Plan. This Agreement is subject to the terms and conditions of the Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern. Capitalized terms used herein without definition shall have the meanings assigned to them in the Plan. The Compensation Committee acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein or in the Plan, have the right to determine any questions which arise in connection with the grant of Performance Shares.
17. Successors and Assigns. Without limiting Section 6 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of Grantee, and the successors and assigns of the Company.
18. Governing Law. The interpretation, performance, and enforcement of this Agreement shall be governed by the internal substantive laws of the State of Maryland, without giving effect to the principles of conflict of laws thereof.
19. Notices. Any notice to the Company provided for herein shall be in writing to the Company and any notice to Grantee shall be addressed to Grantee at his or her address on file with the Company. Except as otherwise provided herein, any written notice shall be deemed to be duly given if and when delivered personally or deposited in the United States mail, first class certified or registered mail, postage and fees prepaid, return receipt requested, and addressed as aforesaid. Any party may change the address to which notices are to be given hereunder by written notice to the other party as herein specified (provided that for this purpose any mailed notice shall be deemed given on the third business day following deposit of the same in the United States mail).
The undersigned Grantee hereby accepts the award of Performance Shares granted pursuant to this Agreement, subject to the terms and conditions of the Plan and the terms and conditions set forth herein.
____________________________________
[Name]
Date:________________________________
Executed in the name and on behalf of the Company at Cleveland Ohio as of the _________ day of _____________, _________.
FOREST CITY REALTY TRUST, INC.
By:
Name:
Title:
1009920.3
FOREST CITY REALTY TRUST, INC.
DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS
Forest City Enterprises, Inc. established, effective as of January 1, 1999, the Forest City Enterprises, Inc. Deferred Compensation Plan For Nonemployee Directors. The Plan was established for the purpose of providing funds upon termination of service of nonemployee directors of Forest City Enterprises, Inc. It was intended that the Plan would assist in attracting and retaining qualified individuals to serve as directors.
The Fourth Amendment to the Plan permanently froze all benefits hereunder (other than gains, losses, interest and earnings credited to a Director’s Account) effective as of December 31, 2004. In furtherance of, but without limiting the foregoing, no new Participants may join the Plan after December 31, 2004, no amounts may be deferred under the Plan after December 31, 2004, and the only amounts that shall be allocated to a Director’s Account under the Plan after December 31, 2004 shall be gains, losses, interest and earnings credited on Account balances under the Plan as of December 31, 2004.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Realty Trust, Inc. (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
Nothing contained herein is intended to materially enhance a benefit or right existing under the Plan as in effect on October 3, 2004, or to add a new material benefit or right. It is intended that all benefits payable under the Plan shall be exempt from the application of Section 409A of the Code (as defined below).
ARTICLE I
DEFINITIONS
For the purposes hereof, the following words and phrases shall have the meanings set forth below, unless their context clearly requires a different meaning:
1. “Account” shall mean the bookkeeping account(s) maintained by the Committee on behalf of each Participant pursuant to Section 4 of Article II that is credited with Fees which are deferred by a Participant, and the gains, losses, interest and other earnings on such amounts as determined in accordance with Section 4 of Article II.
2. “Beneficiary” or “Beneficiaries” shall mean the person or persons, including one or more trusts, designated by a Participant in accordance with the Plan to receive payment of the remaining balance of the Participant’s Account in the event of the death of the Participant prior to receipt of the entire amount credited to the Participant’s Account.
3. “Board” shall mean the Board of Directors of the Company.
4. “Change in Control” shall mean that:
(i) The Company is merged or consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such transaction is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction or (b) Permitted Holders;
(ii) The Company sells or otherwise transfers all or substantially all of its assets to any other corporation or other legal person, and as a result of such sale or transfer less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such sale or transfer is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such sale or transfer or (b) Permitted Holders;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) thereto, each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) other than a Permitted Holder has become the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20 percent or more of the combined voting power of the then-outstanding securities entitled to vote generally in the election of the Board (the “Voting Stock”);
(iv) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company has or may have occurred or will or may occur in the future pursuant to any then-existing contract or transaction, other than with respect to a Permitted Holder; or
(v) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the Board cease for any reason to constitute at least a majority of the members thereof, unless the election, or the nomination for election by the Company’s stockholders, of each member of the Board first elected during such period was approved by a vote of at least two-thirds of the members of the Board then still in office who were members of the Board at the beginning of any such period.
Notwithstanding the foregoing provisions of subsection (iii) or (iv) hereof, a “Change in Control” shall not be deemed to have occurred for purposes of the Plan, either (1) solely because the Company, a Subsidiary, or any employee stock ownership plan or other employee benefit plan sponsored by the Company or a Subsidiary, files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or
any successor schedule, form or report or item therein) under the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20 percent or otherwise, or because the Company reports that a change in control of the Company has or may have occurred or will or may occur in the future by reason of such beneficial ownership or (2) solely because of a change in control of any Subsidiary. Notwithstanding the foregoing provisions of subsections (i-iv) hereof, if, prior to any event described in subsections (i-iv) hereof that may be instituted by any person who is not an officer or director of the Company, or prior to any disclosed proposal that may be instituted by any person who is not an officer or director of the Company that could lead to any such event, management proposes any restructuring of the Company that ultimately leads to an event described in subsections (i-iv) hereof pursuant to such management proposal, then a “Change in Control” shall not be deemed to have occurred for purposes of the Plan.
5. “Class A Common Shares” shall mean the Class A Common Shares of the Company, or any security into which such shares may be changed, as determined by the Committee in its sole discretion, (i) in the event of a change in the outstanding Class A Common Shares or in the capital structure of the Company by reason of any share dividend, share split, reverse share split, recapitalization, reorganization, merger, consolidation, combination, exchange or other relevant change in the capitalization of the Company or (ii) in the event of any change in applicable laws or any change in circumstances which results in or would result in any substantial dilution or enlargement of the rights of any Participant in the Plan or which otherwise warrants equitable adjustment because it interferes with the intended operation of the Plan.
6. “Code” shall mean the Internal Revenue Code of 1986, as amended.
7. “Committee” shall mean the Corporate Governance and Nominating Committee of the Board or such other committee as may be authorized by the Board to administer the Plan.
8. “Director” shall mean a member of the Board.
9. “Disability” shall have the meaning given to such term in the Company’s Long Term Disability Plan, as amended from time to time (or, if none, the long-term disability plan of Forest City Employer, LLC or its successor).
10. “Effective Time” shall mean 11:59 p.m. on December 31, 2015.
11. “Election Agreement” shall mean an agreement in the form designated from time to time by the Committee.
12. “Eligible Director” shall mean a Director who is not an employee of the Company or any of its Subsidiaries. An Eligible Director shall continue as such until the earlier of the date he or she (i) ceases to be a Director or (ii) becomes an employee of the Company or any of its Subsidiaries.
13. “Fee” or “Fees” shall mean any compensation payable in cash to a Director for his or her services as a member of the Board or any committee thereof.
14. “Insolvent” shall mean that the Company has become subject to a pending voluntary or involuntary proceeding under the United States Bankruptcy Code or has become unable to pay its debts as they mature.
15. “Participant” shall mean any Eligible Director who has at any time elected to defer the receipt of Fees in accordance with the Plan and who, in conjunction with his or her Beneficiary, has not received a complete distribution of the amount credited to his or her Account.
16. “Permitted Holder” shall mean (i) any of Samuel H. Miller, Albert B. Ratner, Charles A. Ratner, James A. Ratner, Ronald A. Ratner, Nathan Shafran 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 or winding up of RMS, Limited Partnership receives a distribution of capital stock of the Company, (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).
17. “Plan” shall mean this Forest City Realty Trust, Inc. Deferred Compensation Plan For Nonemployee Directors and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Deferred Compensation Plan For Nonemployee Directors.
18. “Subsidiary” shall mean any corporation, joint venture, partnership, unincorporated association or other entity in which the Company has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
19. “Year” shall mean a calendar year.
ARTICLE II
ELECTION TO DEFER
1. Eligibility and Participation. An Eligible Director may elect to defer receipt of 50% or 100% of his or her Fee for any Year in accordance with Section 2 of this Article. An Eligible Director’s entitlement to defer shall cease with respect to the Year following the Year in which he or she ceases to be an Eligible Director.
2. Election to Defer. An Eligible Director who desires to defer all or part of his or her Fee pursuant to the Plan must defer 50% or 100% of such Fee pursuant to the Plan and must complete and deliver an Election Agreement to the Committee before the first day of the Year for which such compensation would otherwise be paid. An Eligible Director who timely delivers an executed Election Agreement to the Committee shall be a Participant. An Election Agreement that is timely delivered to the Committee shall be effective for the succeeding Year and, except as otherwise specified by an Eligible Director in his or her Election Agreement, shall continue to be effective
from Year to Year until revoked or modified by written notice to the Committee or until terminated automatically upon either the termination of the Plan, the Company becoming Insolvent or the Participant ceasing to be a Director. In order to be effective to revoke or modify an election relating to Fees otherwise payable in any particular Year, a revocation or modification must be delivered prior to the beginning of the first Year of service for which such compensation is payable. Notwithstanding the above, in the event that a Director first becomes an Eligible Director during the course of a Year, rather than as of the first day of a Year, the Eligible Director’s Election Agreement must be filed no later than thirty (30) days following the date the Director first becomes an Eligible Director, and such Election Agreement shall be effective only with regard to Fees earned following the filing of the Election Agreement with the Committee. Any Participant receiving the Committee’s written authorization pursuant to Section 3 of this Article II to defer all or a part of his or her Fee to a date after the Participant’s retirement date, or to a date prior to the Participant’s retirement date, must deliver an Election Agreement to the Committee at least two (2) years in advance of the date the Participant elects to have the benefit payments commence under the terms of Section 5 of this Article II. Notwithstanding any provision of the Plan to the contrary, (i) no person shall become a Participant under the Plan after December 31, 2004 and (ii) no Fees may be deferred pursuant to the Plan after December 31, 2004.
3. Amount Deferred; Period of Deferral. A Participant shall designate on the Election Agreement whether 50% or 100% of his or her Fee is to be deferred. Unless the Committee permits (by written authorization) a Participant to elect a deferral period ending earlier or later than the Termination of Service Date described hereafter, the applicable percentage(s) or dollar amount(s) of his or her Fee shall be deferred until the date the Participant ceases to be a Director by death, retirement or Disability or otherwise ceases to be a Director of the Company (the “Termination of Service Date”). Notwithstanding the foregoing, the Committee may, in its sole discretion, permit (by written authorization) a Participant to defer the applicable percentage(s) or dollar amount(s) of his or her Fee (a) to a date after the Participant’s retirement date, or (b) to a date that precedes the Participant’s stated retirement date and that is at least two (2) years after the date of the election, provided the Participant shall timely file an Election Agreement in accordance with Article II, Section 2. The Committee may, in its sole discretion, permit (by written authorization) a Participant to modify or revoke any such election at any time and from time to time by the filing of a later written election with the Committee, provided, however, that any election made less than one year prior to the Participant’s Termination of Service Date, or less than two years prior to the date the Participant elects to have the benefit payments commence, shall not be valid, and in such case, payment shall be made in accordance with the latest valid election of the Participant. Notwithstanding the foregoing, the Committee’s right to exercise discretion hereunder shall be limited to the extent necessary to ensure that amounts deferred under the Plan are not subject to Code Section 409A.
4. Accounts; Earnings. Fees that a Participant elects to defer shall be treated as if they were set aside in an Account on the date the Fees would otherwise have been paid to the Participant.
(i) Such Account will be credited with gains, losses, interest and other earnings based on investment directions made by the Participant, in accordance with investment deferral crediting options and procedures established by the Committee, which shall include procedures for prospective investment directions with respect to Fees that are to be deferred
under the Plan. The Committee may change the investment deferral crediting options and procedures from time to time; provided that the Committee’s right to change such options and procedures shall be limited to the extent necessary to ensure that amounts deferred under the Plan are not subject to Internal Revenue Code Section 409A. Unless otherwise specified by the Committee, the investments in which a Participant’s Account may be deemed invested are (a) an interest bearing obligation specified by the Committee from time to time and (b) Class A Common Shares. Participants shall be permitted to reallocate the deemed investment of their Accounts between such deemed investment options only as and to the extent determined by the Committee. Any dividends deemed payable with respect to Class A Common Shares that are deemed credited to a Participant’s Account shall be credited to the Participant’s Account and shall be deemed reinvested in Class A Common Shares.
(ii) By electing to defer any amount pursuant to the Plan, each Participant shall thereby acknowledge and agree that the Company is not and shall not be required to make any investment in connection with the Plan, nor is it required to follow the Participant’s investment directions in any actual investment it may make or acquire in connection with the Plan. Any amounts credited to a Participant’s Account with respect to which a Participant does not provide investment direction shall be credited with gains, losses, interest and other earnings as if such amounts were invested in an investment option to be selected by the Committee in its sole discretion. Each Participant shall be 100% vested in the entire amount credited to his or her Account at all times.
5. Payment of Account. The amount of a Participant’s Account shall be paid as provided in this Section 5.
(i) The amount of a Participant’s Account attributable to deferral of Fees (and gains, losses, interest and other earnings thereon) shall be paid to the Participant in a lump sum or in a number of annual installments (not in excess of fifteen (15) installments) as designated by the Participant in the Election Agreement. Distributions shall be made in cash or in Class A Common Shares (with fractional shares paid in cash), or any combination thereof, as elected by the Participant, provided, however, that Class A Common Shares shall only be distributable with respect to that portion of a Participant’s Account that is deemed invested in such shares at the time of distribution. The lump sum payment or the first annual installment, as the case may be, shall be made as soon as practicable following the end of the period of deferral as specified in Section 3 of this Article. In the event that the Account is paid in installments, the amount of each installment shall be equal to the quotient obtained by dividing the Participant’s Account balance as of the date of such installment payment by the number of installment payments remaining to be made to or in respect of such Participant at the time of the calculation. In the event that the Account is paid in installments, the amount credited to the Participant’s Account remaining unpaid shall continue to be credited with gains, losses, interest and other earnings as provided in Section 4 of this Article.
(ii) Notwithstanding the payment terms designated by a Participant on the Election Agreement, but subject to the approval of the Committee as described below in this Section, a Participant may elect to change the form of payment of his or her Account to a form of payment otherwise permitted under Section 5(i) of this Article II; provided such
election shall be in writing on a form provided by the Committee, and provided further that any election made less than one year prior to the date the Participant ceases to be a Director by death, retirement, Disability or otherwise shall not be valid, and in such case, payment shall be made in accordance with the Participant’s original Election Agreement. Any such election may be changed or revoked by the Participant at any time and from time to time by the filing of a later written election with the Committee provided that any election made less than one year prior to the date the Participant ceases to be a Director by death, retirement, Disability or otherwise shall not be valid, and in such case, payment shall be made in accordance with the latest valid election of the Participant. The payment of a lump sum amount, or the payment of a number of approximately equal annual installments, not in excess of fifteen (15) payments, as designated by the Participant in the Election Agreement, to a Participant (or his or her Beneficiary or Beneficiaries) pursuant to this Section shall discharge all obligations of the Company to such Participant (and his or her Beneficiaries) under the Plan.
6. Death of a Participant. In the event of the death of a Participant, the remaining amount of the Participant’s Account shall be paid to the Beneficiary or Beneficiaries designated in a writing substantially in the form attached hereto as Exhibit A (the “Beneficiary Designation”) in accordance with the Participant’s latest valid election, or in accordance with a special payment election filed by the Participant with the Committee that is to be operative and override any other payment election filed by the Participant in the event of the death of the Participant. A Participant’s Beneficiary Designation may be changed at any time prior to his or her death by the execution and delivery of a new Beneficiary Designation. The Beneficiary Designation on file with the Company (including any Beneficiary Designation on file with Forest City Enterprises, Inc. immediately prior to the Effective Time) that bears the latest date at the time of the Participant’s death shall govern. In the absence of a Beneficiary Designation or the failure of any Beneficiary to survive the Participant, the amount of the Participant’s Account shall be paid to the Participant’s estate in a lump sum amount in cash within 90 days after the appointment of an executor or administrator. In the event of the death of the Beneficiary or Beneficiaries after the death of a Participant, any amount remaining in the Account shall be paid in a lump sum amount in cash to the estate of the last surviving Beneficiary within 90 days after the appointment of an executor or administrator.
7. Small Payments. Notwithstanding the foregoing, if installment payments elected by a Participant would result in a payment of less than $500, the entire amount of the Participant’s Account may at the discretion of the Committee be paid in a lump sum amount in cash in accordance with Section 5 of this Article.
8. Acceleration.
(i) Notwithstanding the above, in the event of an unforeseeable emergency, as defined in section 1.457-2(h)(4) and (5) of the Income Tax Regulations, that is caused by an event beyond the control of the Participant or Beneficiary and that would result in severe financial hardship to the individual if acceleration were not permitted, the Committee may in its sole discretion accelerate the payment to the Participant or Beneficiary of the amount of his or her Account, but only up to the amount necessary to meet the emergency.
(ii) Notwithstanding any other provision of the Plan, the Participant, or his or her Beneficiary in the event of his or her death, shall be permitted, at any time, to make an election to receive, payable as soon as practicable after such election is received by the Committee, the remaining amount of the Account in the form of a single lump sum, if (and only if) the Account is reduced by 10%, which 10% amount shall thereupon irrevocably be forfeited.
(iii) Amounts payable under paragraphs (i) and (ii) of this Section 8 of Article II shall only be payable in cash, and shall not be payable in Class A Common Shares.
ARTICLE III
ADMINISTRATION
The Committee, shall be responsible for the general administration of the Plan and for carrying out the provisions hereof. The Committee shall have all such powers as may be necessary to carry out the provisions of the Plan, including the power to (i) resolve all questions relating to eligibility for participation in the Plan and the amount in the Account of any Participant and all questions pertaining to claims for benefits and procedures for claim review, (ii) resolve all other questions arising under the Plan, including any factual questions and questions of construction, and (iii) take such further action as the Committee shall deem advisable in the administration of the Plan. The actions taken and the decisions made by the Committee hereunder shall be final and binding upon all interested parties. The Committee shall provide a procedure for handling claims of Participants or their Beneficiaries under the Plan. Such procedure shall provide adequate written notice within a reasonable period of time with respect to the denial of any such claim as well as a reasonable opportunity for a full and fair review by the Committee of any such denial. It is intended that no action be taken with respect to the Plan that would cause amounts deferred under the Plan to be subject to Code Section 409A. The Plan shall be administered in a manner that effects such intent. In furtherance of, but without limiting the foregoing, the Committee (i) shall not have the right to exercise its discretion under the Plan or to interpret the Plan in a manner that would cause amounts deferred under the Plan to be subject to Code Section 409A and (ii) is authorized to adopt rules or regulations deemed necessary or appropriate to ensure that amounts deferred under the Plan are not subject to Code Section 409A.
ARTICLE IV
AMENDMENT AND TERMINATION
The Company reserves the right to amend or terminate the Plan at any time by action of the Board or Committee; provided, however, that no such action shall adversely affect any Participant or Beneficiary who has an Account, or result in any change in the timing or manner of payment of the amount of any Account (except as otherwise permitted under the Plan), without the consent of the Participant or Beneficiary; and provided further that such consent shall not apply to any amendment or termination deemed necessary by the Company to ensure that amounts deferred under the Plan are not subject to Code Section 409A.
ARTICLE V
MISCELLANEOUS
1. Non-alienation of Deferred Compensation. Except as permitted by the Plan, no right or interest under the Plan of any Participant or Beneficiary shall, without the written consent of the Company, be (i) assignable or transferable in any manner, (ii) subject to alienation, anticipation, sale, pledge, encumbrance, attachment, garnishment or other legal process or (iii) in any manner liable for or subject to the debts or liabilities of the Participant or Beneficiary.
2. Interest of Participant. The obligation of the Company under the Plan to make payment of amounts reflected in an Account merely constitutes the unsecured promise of the Company to make payments from its general assets and no Participant or Beneficiary shall have any interest in, or a lien or prior claim upon, any property of the Company. Further, no Participant or Beneficiary shall have any claim whatsoever against any Subsidiary for amounts reflected in an Account. Nothing in the Plan shall be construed as guaranteeing that an Eligible Director shall remain a Director. It is the intention of the Company that the Plan be unfunded for tax purposes. The Company may create a trust to hold funds to be used in payment of its obligations under the Plan, and may fund such trust; provided, however, that any funds contained therein shall remain liable for the claims of the Company’s general creditors. Notwithstanding the above, upon the earlier to occur of (i) a Change in Control or (ii) a declaration by the Board that a Change in Control is imminent, the Company shall promptly to the extent it has not previously done so:
(a) establish an irrevocable trust, generally consistent with the provisions of Revenue Procedure 92-64 (the funds of which shall be subject to the claims of the Company’s general creditors), to hold funds to be used in payment of its obligations under the Plan; and
(b) transfer to the trustee of such trust, to be added to the principal thereof, an amount equal to (I) the aggregate amount credited to the Accounts of all of the Participants and Beneficiaries under the Plan, less (II) the balance, if any, in the trust at such time.
3. Claims of Other Persons. The provisions of the Plan shall in no event be construed as giving any other person, firm or corporation any legal or equitable right as against the Company or any Subsidiary or the officers, employees or directors of the Company or any Subsidiary, except any such rights as are specifically provided for in the Plan or are hereafter created in accordance with the terms and provisions of the Plan.
4. Severability. The invalidity and unenforceability of any particular provision of the Plan shall not affect any other provision hereof, and the Plan shall be construed in all respects as if such invalid or unenforceable provision were omitted.
5. Governing Law. The provisions of the Plan shall be governed and construed in accordance with the laws of the State of Maryland.
EXECUTED as of December 31, 2015.
FOREST CITY REALTY TRUST, INC.
By:
David J. LaRue
President, Chief Executive Officer and Director
EXHIBIT A
FOREST CITY REALTY TRUST, INC.
DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS
BENEFICIARY DESIGNATIONS
In accordance with the terms and conditions of the Forest City Realty Trust, Inc. Deferred Compensation Plan For Executives (the “Plan”), I hereby designate the person(s) indicated below as my beneficiary(ies) to receive the amounts payable under said Plan.
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Name _______________________ | | Name _______________________ |
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Portion of Account _________% | | Portion of Account _________% |
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Address ______________________ | | Address ______________________ |
_____________________________ | | _____________________________ |
_____________________________ | | _____________________________ |
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Social Sec. No. of | | Social Sec. No. of |
Beneficiary ___________________ | | Beneficiary ___________________ |
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Relationship __________________ | | Relationship __________________ |
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Date of Birth __________________ | | Date of Birth __________________ |
In the event that the above-named beneficiary(ies) predecease(s) me, I hereby designate the following person as beneficiary(ies);
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Name _______________________ | | Name _______________________ |
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Portion of Account _________% | | Portion of Account _________% |
| | |
Address ______________________ | | Address ______________________ |
_____________________________ | | _____________________________ |
_____________________________ | | _____________________________ |
| | |
Social Sec. No. of | | Social Sec. No. of |
Beneficiary ___________________ | | Beneficiary ___________________ |
| | |
Relationship __________________ | | Relationship __________________ |
| | |
Date of Birth __________________ | | Date of Birth __________________ |
I hereby expressly revoke all prior designations of beneficiary(ies), reserve the right to change the beneficiary(ies) herein designated and agree that the rights of said beneficiary(ies) shall be subject to the terms of the Plan. In the event that there is no beneficiary living at the time of my death, I understand that the amounts payable under the Plan will be paid to my estate.
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_________________ | | ____________________ | | ______________________________ |
Date | | (Signature) | | (Print or type name) |
FOREST CITY REALTY TRUST, INC.
2005 DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS
(Effective December 31, 2015)
Forest City Enterprises, Inc. established, effective January 1, 2005, the Forest City Enterprises, Inc. 2005 Deferred Compensation Plan For Nonemployee Directors. The Plan was amended and restated as of January 1, 2005 and January 1, 2008 and amended as of December 17, 2009. The Plan was established for the purpose of providing funds upon Termination of Service (as defined below) of nonemployee directors of Forest City Enterprises, Inc. It is intended that the Plan will assist in attracting and retaining qualified individuals to serve as directors.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Realty Trust, Inc. (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
ARTICLE I
DEFINITIONS
For the purposes hereof, the following words and phrases shall have the meanings set forth below, unless their context clearly requires a different meaning:
1. “Account” shall mean the bookkeeping account(s) maintained by the Committee on behalf of each Participant pursuant to Section 4 of Article II that is credited with Fees which are deferred by a Participant, and the gains, losses, interest and other earnings on such amounts as determined in accordance with Section 4 of Article II.
2. “Beneficiary” or “Beneficiaries” shall mean the person or persons, including one or more trusts, designated by a Participant in accordance with the Plan to receive payment of the remaining balance of the Participant’s Account in the event of the death of the Participant prior to receipt of the entire amount credited to the Participant’s Account.
3. “Board” shall mean the Board of Directors of the Company.
4. “Change in Control” shall mean that:
(i) The Company is merged or consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such transaction is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction or (b) Permitted Holders;
(ii) The Company sells or otherwise transfers all or substantially all of its assets to any other corporation or other legal person, and as a result of such sale or transfer less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such sale or transfer is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such sale or transfer or (b) Permitted Holders;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) thereto, each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) other than a Permitted Holder has become the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20 percent or more of the combined voting power of the then-outstanding securities entitled to vote generally in the election of the Board (the “Voting Stock”);
(iv) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company has or may have occurred or will or may occur in the future pursuant to any then-existing contract or transaction, other than with respect to a Permitted Holder; or
(v) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the Board cease for any reason to constitute at least a majority of the members thereof, unless the election, or the nomination for election by the Company’s stockholders, of each member of the Board first elected during such period was approved by a vote of at least two-thirds of the members of the Board then still in office who were members of the Board at the beginning of any such period.
Notwithstanding the foregoing provisions of subsection (iii) or (iv) hereof, a “Change in Control” shall not be deemed to have occurred for purposes of the Plan, either (1) solely because the Company, a Subsidiary or any employee stock ownership plan or other employee benefit plan sponsored by the Company or a Subsidiary, files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20 percent or otherwise, or because the Company reports that a change in control of the Company has or may have occurred or will or may occur in the future by reason of such beneficial ownership or (2) solely because of a change in control of any Subsidiary. Notwithstanding the foregoing provisions of subsections (i-iv) hereof, if, prior to any event described in subsections (i-iv) hereof that may be instituted by any person who is not an officer or director of the Company, or prior to any disclosed proposal that may be instituted by any person who is not an officer or director of the Company that could lead to any such event, management proposes any restructuring of the Company that ultimately leads to an event described in subsections (i-iv) hereof pursuant to such management proposal, then a “Change in Control” shall not be deemed to have occurred for purposes of the Plan.
5. “Class A Common Shares” shall mean the Class A Common Shares of the Company, or any security into which such shares may be changed, as determined by the Committee in its sole discretion, (i) in the event of a change in outstanding Class A Common Shares or in the capital structure of the Company by reason of any share dividend, share split, reverse share split, recapitalization, reorganization, merger, consolidation, combination, exchange or other relevant change in the capitalization of the Company or (ii) in the event of any change in applicable laws or any change in circumstances which results in or would result in any substantial dilution or enlargement of the rights of any Participant in the Plan or which otherwise warrants equitable adjustment because it interferes with the intended operation of the Plan.
6. “Code” shall mean the Internal Revenue Code of 1986, as amended.
7. “Committee” shall mean the Corporate Governance and Nominating Committee of the Board or such other committee as may be authorized by the Board to administer the Plan.
8. “Deferral Election” shall mean the Election Agreement (or portion thereof) completed by a Participant and filed with the Committee that indicates the amount of his or her Fees that is or will be deferred under the Plan for a Year.
9. “Director” shall mean a member of the Board.
10. “Disability” shall have the meaning given to such term in the Long Term Disability Plan of the Company, as amended from time to time (or, if none, the long-term disability plan of Forest City Employer, LLC).
11. “Effective Time” shall mean 11:59 p.m. on December 31, 2015.
12. “Election Agreement” shall mean an agreement in the form that the Committee may designate from time to time.
13. “Eligible Director” shall mean a Director who is not an employee of the Company or any of its Subsidiaries. An Eligible Director shall continue as such until the earlier of the date he or she (i) ceases to be a Director or (ii) becomes an employee of the Company or any of its Subsidiaries.
14. “Election Filing Date” shall mean December 31 of the Year next preceding the first day of the Year for which Fees would otherwise be earned.
15. “Fee” or “Fees” shall mean the annual retainer payable in cash to a Director for his or her services as a member of the Board.
16. “Key Employee” shall mean a “specified employee” with respect to the Company (or a controlled group member of the Company) determined pursuant to procedures implemented by the Company in compliance with Section 409A of the Code.
17. “Participant” shall mean any Eligible Director who has at any time made a Deferral Election in accordance with Section 2 of Article II the Plan and who, in conjunction with his or her Beneficiary, has not received a complete distribution of the amount credited to his or her Account.
18. “Payment Election” shall mean the Election Agreement (or portion thereof) completed by a Participant and filed with the Committee that indicates the time of commencement of payment and form of payment of the Participant’s Fees that are or will be deferred pursuant to a Deferral Election under the Plan.
19. “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 or winding up of RMS, Limited Partnership receives a distribution of capital stock of the Company, (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).
20. “Plan” shall mean this Forest City Realty Trust, Inc. 2005 Deferred Compensation Plan For Nonemployee Directors and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. 2005 Deferred Compensation Plan For Nonemployee Directors.
21. “Subsidiary” shall mean any corporation, joint venture, partnership, unincorporated association or other entity in which the Company has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
22. “Termination of Service” shall mean a termination of service with the Company that constitutes a separation from service within the meaning of Treasury Regulation Section 1.409A-1(h).
23. “Unforeseeable Emergency” shall mean a severe financial hardship to a Participant resulting from (i) an illness or accident of the Participant or Beneficiary or his or her spouse or dependent (as defined in Section 152(a) of the Code), (ii) loss of the Participant’s property due to casualty, or (iii) other similar or extraordinary circumstances arising as a result of events beyond the control of the Participant.
24. “Year” shall mean each calendar year, commencing on or after January 1, 2008.
ARTICLE II
ELECTION TO DEFER
1. Eligibility and Participation. An Eligible Director may make an annual Deferral Election with respect to receipt of 50% or 100% of his or her Fee for any Year in accordance with Section 2 of this Article. An Eligible Director who makes a Deferral Election must also make a Payment Election with respect to the amount deferred in accordance with Section 5 of this Article. An Eligible Director’s entitlement to defer shall cease with respect to the Year following the Year in which he or she ceases to be an Eligible Director.
2. Deferral Elections. All Deferral Elections, once effective, shall be irrevocable, shall be made on an Election Agreement filed with the Committee and shall comply with the following requirements:
(i) The Deferral Election shall specify the amount of Fees that is to be deferred within the limits under Section 3 of this Article.
(ii) The Deferral Election shall be made by, and shall be effective as of, the applicable Election Filing Date. Notwithstanding the foregoing, the Committee may permit a Director who first becomes an Eligible Director during the course of a Year, rather than as of the first day of such Year, to make a Deferral Election within thirty (30) days following the date the Director first becomes an Eligible Director, and such Deferral Election shall be effective on the date made and shall be effective only with regard to Fees earned following the filing of the Election Agreement with the Committee.
3. Amount Deferred. A Participant shall designate on the Election Agreement whether 50% or 100% of his or her Fees earned during the Year are to be deferred.
4. Accounts; Earnings. Fees that a Participant elects to defer shall be credited to an Account on the date the Fees would otherwise have been paid to the Participant.
(i) Such Account will be credited with gains, losses, interest and other earnings based on investment directions made by the Participant, in accordance with investment deferral crediting options and procedures established by the Committee, which shall include procedures for prospective investment directions with respect to Fees that are to be deferred under the Plan. The Committee may change the investment deferral crediting options and procedures from time to time. Unless otherwise specified by the Committee, the investments in which a Participant’s Account may be deemed invested are (a) an interest bearing obligation specified by the Committee from time to time and (b) Class A Common Shares. Participants shall be permitted to reallocate the deemed investment of their Accounts between such deemed investment options only as and to the extent determined by the Committee. Any dividends deemed payable with respect to Class A Common Shares that are deemed credited to a Participant’s Account shall be credited to the Participant’s Account and shall be deemed reinvested in Class A Common Shares.
(ii) By electing to defer any amount pursuant to the Plan, each Participant shall thereby acknowledge and agree that the Company is not and shall not be required to make any investment in connection with the Plan, nor is it required to follow the Participant’s investment directions in any actual investment it may make or acquire in connection with the Plan. Any amounts credited to a Participant’s Account with respect to which a Participant does not provide investment direction shall be credited with gains, losses, interest and other earnings as if such amounts were invested in an investment option to be selected by the Committee in its sole discretion. Each Participant shall be 100% vested in the entire amount credited to his or her Account at all times.
5. Initial Payment Elections. Subject to Sections 5(iii), 5(iv), 6, 7, 8, and 9 of this Article, all Payment Elections shall be irrevocable, shall be made annually on an Election Agreement filed with the Committee and shall comply with the following requirements:
(i) The Payment Election shall contain the Participant’s elections regarding the time of the commencement of payment of amounts in his or her Account.
(a) A Participant may elect to commence payment (1) upon the date on which he or she incurs a Termination of Service for any reason, including, without limitation, by reason of death, retirement, or Disability, or (2) to the extent permitted by the Committee in an Election Agreement with the Committee, in a specified year that begins at least two years after the date on which the Deferral Election becomes effective.
(b) Payments made in accordance with the Participant’s election under Section 5(i)(a)(1) of this Article shall be paid or commence to be paid on the date of the Termination of Service and payments made in accordance with the Participant’s election under Section 5(i)(a)(2) of this Article shall be paid or commence to be paid on June 1 of the specified year.
(c) Notwithstanding the foregoing provisions of this Section 5(i), in the event that a Participant elects, in accordance with Section 5(i)(a)(2) of this Article, to commence payments in a specified year, and prior to the date such payment is due to be paid or commence to be paid (as described in Section 5(i)(b) of this Article) he or she incurs a Termination of Service, payment of the Participant’s Account shall commence, in the form or forms elected pursuant to Sections 5(ii) and/or 5(iii) of this Article, on the date of such Termination of Service.
(ii) The Deferral Election shall also contain the Participant’s elections regarding the form of payment of amounts in his or her Account.
(a) The Participant may elect to receive amounts in his or her Account in one of the following forms: (1) a single lump sum payment or (2) a specified number of quarterly installments over a specified period not exceeding five (5) years. Distributions shall be made in cash or in Class A Common Shares (with fractional shares paid in cash), or any combination thereof, as elected by the Participant, provided, however, that Class A Common Shares shall only be distributable with respect to that portion of a Participant’s Account that is deemed invested in such shares at the time of the distribution. In the event that a Participant’s Account (or a portion thereof) was deemed invested in Class A Common Shares but the Participant elects payment of such Account (or a portion thereof) in cash, the value of such Account (or a portion thereof) shall be based on the fair market value of the Class A Common Shares as of the date preceding the date the cash payment is scheduled to be paid (or commence to be paid) under the Plan.
(b) In the event that all or a portion of a Participant’s Account is payable in installments the amount of each installment shall be determined as follows:
(1) The value, at the time of the first installment payment, of the portion of the Participant’s Account payable in installments shall be divided by the number of installment payments that will be made during the installment period;
(2) The amount determined under (1) shall be paid to the Participant on each payment date through the end of the Year in which the installment payments begin;
(3) After the end of the Year described in (2), the value at the end of such Year of the portion of the Account payable in installments shall be divided by the number of installment payments then remaining in the installment period;
(4) The amount determined under (3) shall be paid to the Participant on each payment date during the following Year;
(5) The procedures described in (3) and (4) shall be followed for any following Year in which installment payments will be made;
(6) The portion of the Account subject to such installment payments that remains unpaid from time to time shall continue to be credited with gains, losses, interest and other earnings as provided in Section 4(i) of this Article; and
(7) The final installment payment shall include an adjustment for gains, losses, interest and other earnings pursuant to Section 4(i) of this Article during the period between the beginning of the Year in which the final installment payment is made and the date of such final payment.
(iii) Except as provided in Section 2(ii) of this Article, the Payment Election shall be made by, and shall be effective as of, the applicable Election Filing Date. A Participant may not have more than: (A) two Payment Elections described in Section 5(i)(a)(2) of this Article in effect at any one time, (B) three Payment Elections in total in effect at any one time, and (C) two Payment Elections in effect at any one time that provide for payments in installments.
(iv) Notwithstanding the foregoing provisions of this Section 5, if the Participant is a Key Employee, payment on account of Termination of Service shall be made or commence on the first business day of the seventh month following such Termination of Service (or, if earlier, the date of death). In the event that all or a portion of a Key Employee’s Account is payable in installments upon a Termination of Service, the total amount of quarterly installment payments to which such Key Employee would otherwise be entitled during the period from the date of the Participant’s Termination of Service through the first day of the seventh month following the date of such Termination of Service shall also be paid on the first business day of the seventh month following such Termination of Service (or, if earlier, the date of death).
(v) The payment of a single lump-sum amount, or the payment of a specified number of quarterly installments as designated by the Participant in the Election Agreement, to a Participant (or his or her Beneficiary or Beneficiaries) pursuant to this Section 5 shall discharge all obligations of the Company to such Participant (and his or her Beneficiaries) under the Plan.
6. Subsequent Payment Elections. A Participant may make a subsequent Payment Election to change the time of the commencement of payment(s) of his or her Account, the form of payment of his or her Account, or both, with respect to an amount previously deferred under a Deferral Election if all of the following requirements are met:
(i) Such subsequent Payment Election may not take effect until at least twelve (12) months after the date on which the subsequent Deferral Election is made;
(ii) In the case of a subsequent Payment Election related to a distribution not described in Section 7 or 9 of this Article, the first payment under such subsequent Payment Election shall in all cases be deferred for a period of not less than five (5) years from the date such distribution would otherwise have been made (or, in the case of installment payments, which are treated as a single payment for purposes of this Section 6, five (5) years from the date the first installment payment was scheduled to be paid); and
(iii) Any subsequent Payment Election related to a distribution that is to be made at a specified time or pursuant to a fixed schedule pursuant to Section 5 of this Article must be made not less than twelve (12) months prior to the date the payment was scheduled to be made under the prior Payment Election (or, in the case of installment payments, which are treated as a single payment for purposes of this Section 6, twelve (12) months prior to the date the first installment payment was scheduled to be paid).
7. Death of a Participant. In the event of the death of a Participant, the remaining amount of the Participant’s Account shall be paid to the Beneficiary or Beneficiaries designated in a writing on a form that the Committee may designate from time to time, (the “Beneficiary Designation”) in accordance with the Participant’s Payment Election, or in accordance with a special payment election filed by the Participant with the Committee at the same time as the Participant’s Payment Election under Section 5 or 6 of this Article is filed with the Committee that is to be operative and override any other payment election under the Participant’s Payment Election in the event of the death of the Participant. Any special payment election filed by a Participant subsequent to the filing of his or her initial Payment Election under Section 5 of this Article must meet such additional requirements as the Committee determines are appropriate to avoid the inclusion of the amounts subject to such special payment election in the gross income of a Participant or Beneficiary under Section 409A(a)(1) of the Code, including, without limitation, the requirements under Section 6 of this Article. A Participant’s Beneficiary Designation may be changed at any time prior to his or her death by the execution and delivery of a new Beneficiary Designation. The Beneficiary Designation on file with the Company (including any Beneficiary Designation on file with Forest City Enterprises, Inc. immediately prior to the Effective Time) that bears the latest date at the time of the Participant’s death shall govern. In the absence of a Beneficiary Designation or the failure of any Beneficiary to survive the Participant, the amount of the Participant’s Account shall be paid to the Participant’s estate in accordance with the elections made on the Participant’s Payment Election; provided, however, that to the extent permitted by Section 409A of the Code, payment of the Participant’s Account under the circumstances described in this sentence shall be made in the form of a lump sum in cash to the Participant’s estate within 90 days after the appointment of an executor or administrator. In the event of the death of the Beneficiary or Beneficiaries after the
death of a Participant, the amount of the Participant’s Account shall be paid to the estate of the last surviving Beneficiary in accordance with the elections made on the Participant’s Payment Election or special payment election, as applicable; provided, however, that to the extent permitted by Section 409A of the Code, payment of the Participant’s Account under the circumstances described in this sentence shall be made in the form of a lump sum in cash to the Beneficiary’s estate within 90 days after the appointment of an executor or administrator.
8. Small Payments. Notwithstanding the foregoing, if at the time of a Participant’s Termination of Service the Participant’s Account balance does not exceed $10,000, such Account shall be automatically paid to such Participant in a single lump-sum payment on the date of such Termination of Service; provided, however, that if the Participant is a Key Employee, payment on account of a Termination of Service shall occur on the first business day of the seventh month after such Termination of Service (or, if earlier, the date of death).
9. Unforeseeable Emergency. Notwithstanding the foregoing, in the event of an Unforeseeable Emergency and at the request of a Participant, accelerated payment may, in the discretion of the Committee, be made to the Participant of all or a part of his or her Account. Payments of amounts as a result of an Unforeseeable Emergency may not exceed the amount necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution(s), after taking into account the extent to which the hardship is or may be relieved through reimbursement or compensation by insurance or otherwise by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship). Amounts payable under this Section 9 of Article II shall only be payable in cash, and shall not be payable in Class A Common Shares.
ARTICLE III
ADMINISTRATION
The Committee, shall be responsible for the general administration of the Plan and for carrying out the provisions hereof. The Committee shall have all such powers as may be necessary to carry out the provisions of the Plan, including the power to (i) resolve all questions relating to eligibility for participation in the Plan and the amount in the Account of any Participant and all questions pertaining to claims for benefits and procedures for claim review, (ii) resolve all other questions arising under the Plan, including any factual questions and questions of construction, and (iii) take such further action as the Committee shall deem advisable in the administration of the Plan. The actions taken and the decisions made by the Committee hereunder shall be final and binding upon all interested parties. The Committee shall provide a procedure for handling claims of Participants or their Beneficiaries under the Plan. Such procedure shall provide adequate written notice within a reasonable period of time with respect to the denial of any such claim as well as a reasonable opportunity for a full and fair review by the Committee of any such denial. It is intended that the Plan comply with the provisions of Section 409A of the Code, as enacted by the American Jobs Creation Act of 2004, so as to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year that is prior to the taxable year or years in which such amounts would otherwise actually be distributed or made available to Participants or Beneficiaries. This Plan shall be administered in a manner that effects such intent.
ARTICLE IV
AMENDMENT AND TERMINATION
The Company reserves the right to amend or terminate the Plan at any time by action of the Board or Committee, except that no such action shall adversely affect any Participant or Beneficiary who has an Account, or result in any change in the timing or manner of payment of the amount of any Account (except as otherwise permitted under the Plan), without the consent of the Participant or Beneficiary (provided, however, that this limitation requiring the consent of Participants or Beneficiaries to certain actions shall not apply to any amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code) and any termination to the extent, and in the circumstances described, in Treas. Reg. Section 1.409A-3(j)(4)(ix), or any successor provision).
ARTICLE V
MISCELLANEOUS
1. Non-Alienation of Deferred Compensation. No right or interest under the Plan of any Participant or Beneficiary shall be (i) assignable or transferable in any manner, (ii) subject to alienation, anticipation, sale, pledge, encumbrance, attachment, garnishment or other legal process or (iii) in any manner liable for or subject to the debts or liabilities of the Participant or Beneficiary. Notwithstanding the foregoing, to the extent permitted by Section 409A of the Code, the payment of part or all of an interest under this Plan may be made to an individual other than the Participant or Beneficiary, to the extent necessary to fulfill a “domestic relations order” as defined in Section 414(p)(1)(B) of the Code.
2. Interest of Participant. The obligation of the Company under the Plan to make payment of amounts reflected in an Account merely constitutes the unsecured promise of the Company to make payments from its general assets and no Participant or Beneficiary shall have any interest in, or a lien or prior claim upon, any property of the Company. Further, no Participant or Beneficiary shall have any claim whatsoever against any Subsidiary for amounts reflected in an Account. Nothing in the Plan shall be construed as guaranteeing that an Eligible Director shall remain a Director. It is the intention of the Company that the Plan be unfunded for tax purposes. The Company may create a trust to hold funds to be used in payment of its obligations under the Plan, and may fund such trust; provided, however, that any funds contained therein shall remain liable for the claims of the Company’s general creditors. Notwithstanding the above, upon the earlier to occur of (i) a Change in Control or (ii) a declaration by the Board that a Change in Control is imminent, the Company shall promptly to the extent it has not previously done so:
(a) establish an irrevocable trust, generally consistent with the provisions of Revenue Procedure 92-64 (the funds of which shall be subject to the claims of the Company’s general creditors), to hold funds to be used in payment of its obligations under the Plan; and
(b) transfer to the trustee of such trust, to be added to the principal thereof, an amount equal to (I) the aggregate amount credited to the Accounts of all of the Participants and Beneficiaries under the Plan, less (II) the balance, if any, in the trust at such time.
3. Claims of Other Persons. The provisions of the Plan shall in no event be construed as giving any other person, firm or corporation any legal or equitable right as against the Company or any Subsidiary or the officers, employees or directors of the Company or any Subsidiary, except any such rights as are specifically provided for in the Plan or are hereafter created in accordance with the terms and provisions of the Plan.
4. Severability. The invalidity and unenforceability of any particular provision of the Plan shall not affect any other provision hereof, and the Plan shall be construed in all respects as if such invalid or unenforceable provision were omitted.
5. Governing Law. The provisions of the Plan shall be governed and construed in accordance with the laws of the State of Maryland.
6. Headings; Interpretation.
(i) Headings in this Plan are inserted for convenience of reference only and are not to be considered in the construction of the provisions hereof.
(ii) Any reference in this Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section 409A by the U.S. Department of Treasury or the Internal Revenue Service.
(iii) For purposes of the Plan, the phrase “permitted by Section 409A of the Code,” or words or phrases of similar import, shall mean that the event or circumstance that may occur or exist only if permitted by Section 409A of the Code would not cause an amount deferred or payable under the Plan to be includible in the gross income of a Participant or Beneficiary under Section 409A(a)(1) of the Code.
EXECUTED as of December 31, 2015.
FOREST CITY REALTY TRUST, INC.
By:
David J. LaRue
President, Chief Executive Officer and Director
FIRST AMENDMENT
TO
FOREST CITY 401(K) EMPLOYEE SAVINGS PLAN & TRUST
The Forest City 401(k) Employee Savings Plan & Trust, originally effective as of May 1, 1992, as presently maintained under an amendment
and restatement made effective as of January 1, 2015, is hereby amended effective as of the dates below, in the following respects:
FIRST CHANGE
Section 2.1 of the Adoption Agreement is amended effective December 31, 2015 to update the Plan Sponsor Name and EIN as follows:
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2.1 | PLAN SPONSOR NAME, ADDRESS, PHONE NUMBER, AND EMPLOYER IDENTIFICATION NUMBER (EIN) |
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Name: | Forest City Employer, LLC |
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Address: | 50 Public Square - 1300 Terminal Tower |
Cleveland, OH 44113-2203
SECOND CHANGE
Section 2.3 of the Adoption Agreement is amended effective December 31, 2015 to update the Type of Entity as follows:
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a. | ¨ C-corporation (including LLC taxed as a corporation) |
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b. | ¨ Partnership (including LLP) |
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d. | ¨ Tax exempt/not for profit |
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e. | ý LLC taxed as a partnership or sole proprietorship |
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f. | ¨ Professional services corporation |
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g. | ¨ Professional employer organization (employee leasing organization) |
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h. | ¨ Other: __________________________________________________________________________ (must be a legal entity recognized under federal income tax laws) |
THIRD CHANGE
Section 4.2 of the Adoption Agreement is amended effective January 1, 2016 to update the Plan Name as follows:
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4.2 | PLAN NAME: Forest City Employer, LLC 401(k) Employee Savings Plan & Trust I |
FOURTH CHANGE
Section 5.1 of the Adoption Agreement is amended effective January 1, 2016 to update the Plan Administrator as follows:
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5.1 | PLAN ADMINISTRATOR NAME, ADDRESS, AND TELEPHONE NUMBER |
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a. | ¨ Plan Sponsor (use Plan Sponsor's address and telephone number) |
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b. | ý Use name, address and telephone number below: |
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Name: | The Benefits Committee appointed by the Board of Directors of Forest City Realty Trust Inc. |
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Address: | 50 Public Square, Suite 1300 |
Cleveland, OH 44113-2203
Phone: (216) 416-6060
FIFTH CHANGE
Section 5.2 of the Adoption Agreement is amended effective January 1, 2016 to update the Investment Fiduciary as follows:
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5.2 | INVESTMENT FIDUCIARY NAME, ADDRESS, AND TELEPHONE NUMBER |
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a. | ¨ Plan Sponsor (use Plan Sponsor's address and telephone number) |
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b. | ý Plan Administrator (use Plan Administrator's address and telephone number) |
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c. | ¨ Use name, address and telephone number below: |
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Name: | ______________________________________________________________________________________ |
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Address: | ______________________________________________________________________________________ |
______________________________________________________________________________________
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Phone: | ______________________________________________________________________________________ |
SIXTH CHANGE
Section 9.1 of the Adoption Agreement is amended effective January 1, 2016 to update Covered Employees to uncheck 9.1a.1 and instead check 9.1f.1:
9.1 COVERED EMPLOYEES INCLUDE. Subject to any exclusions selected in 9.2 below, Covered Employees include the following:
|
| | | | | | |
| All Contributions | Employee | Matching | Nonelective | QNEC | Safe Harbor1 |
a. All Employees of participating Employer | 1. ¨ OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
b. Only hourly rate Employees | 1. ¨ OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
c. Only salaried Employees | 1. ¨ OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
d. Only collectively-bargained Employees (less than 50% of which are officers or executives)
Name of the union(s): _____________________
_____________________ | 1. ¨ OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
e. Only PEO worksite Employees2 | 1. ¨ OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
i. Covered Employees include Employees of the Plan Sponsor | 1. ¨ OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
f. Only the following Employees3: employees of the participating Employer whose Pay Group Codes as assigned by the Plan Administrator indicate that they are employed by legacy Forest City Enterprises, Inc. | 1. ý OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
FINAL CHANGE
Section 9.2l of the Adoption Agreement is amended effective January 1, 2016 to read as follows:
|
| | | | | | |
| All Contributions | Employee | Matching | Nonelective | QNEC | Safe Harbor1 |
l. Other excluded Employees2: contract police, contract security personnel, temporary employees, interns, Employees of the participating Employer whose Pay Group Codes as assigned by the Plan Administrator indicate that they are employed by legacy Forest City Ratner Companies, LLC, employees of FC Gowanus Associates LLC, employees of FC Yonkers Associates LLC, employees of FC Modular LLC, employees of First New York Partners LLC and employees of FCRC Services Company LLC | 1. ý OR | 2. ¨ | 3. ¨ | 4. ¨ | 5. ¨ | 6. ¨ |
| * | * | * | | | |
EXECUTED AT Cleveland, Ohio, this 18th day of November, 2015.
Forest City Employer, LLC
By: /s/ Geralyn M. Presti
Title: Executive Vice President
FOREST CITY EMPLOYER, LLC
DEFERRED COMPENSATION PLAN FOR EXECUTIVES
(Effective December 31, 2015)
Forest City Enterprises, Inc. established, effective as of January 1, 1999, the Forest City Enterprises, Inc. Deferred Compensation Plan For Executives. The Plan was established to provide a select group of management or highly compensated employees with the opportunity to defer base salary and certain incentive compensation payments, in accordance with the provisions of the Plan.
The Second Amendment to the Plan permanently froze all benefits hereunder (other than interest credited to a Participant’s Account) effective as of December 31, 2004. In furtherance of, but without limiting the foregoing, no new Participants may join the Plan after December 31, 2004, no amounts may be deferred under the Plan after December 31, 2004, and the only amounts that shall be allocated to a Participant’s Account under the Plan after December 31, 2004 shall be interest earned on Account balances under the Plan as of December 31, 2004.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
Nothing contained herein is intended to materially enhance a benefit or right existing under the Plan as in effect on October 3, 2004, or to add a new material benefit or right. It is intended that all benefits payable under the Plan shall be exempt from the application of Section 409A of the Code (as defined below).
ARTICLE I
DEFINITIONS
For the purposes hereof, the following words and phrases shall have the meanings set forth below, unless their context clearly requires a different meaning:
1. “Account” shall mean the bookkeeping account maintained by the Committee on behalf of each Participant pursuant to Section 4 of Article II that is credited with Base Salary or Incentive Compensation which is deferred by a Participant, and the interest on such amounts as determined in accordance with Section 4 of Article II.
2. “Base Salary” shall mean the annual fixed or base compensation, payable monthly or otherwise to a Participant.
3. “Beneficiary” or “Beneficiaries” shall mean the person or persons, including one or more trusts, designated by a Participant in accordance with the Plan to receive payment of the remaining balance of the Participant’s Account in the event of the death of the Participant prior to receipt of the entire amount credited to the Participant’s Account.
4. “Board” shall mean the Board of Directors of Forest City REIT.
5. “Change in Control” shall mean that:
(i) Forest City REIT is merged or consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such transaction is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of Forest City REIT immediately prior to such transaction or (b) Permitted Holders;
(ii) Forest City REIT sells or otherwise transfers all or substantially all of its assets to any other corporation or other legal person, and as a result of such sale or transfer less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such sale or transfer is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of Forest City REIT immediately prior to such sale or transfer or (b) Permitted Holders;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) thereto, each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) other than a Permitted Holder has become the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20 percent or more of the combined voting power of the then-outstanding securities entitled to vote generally in the election of the Board (the “Voting Stock”);
(iv) Forest City REIT files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of Forest City REIT has or may have occurred or will or may occur in the future pursuant to any then-existing contract or transaction, other than with respect to a Permitted Holder; or
(v) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the Board cease for any reason to constitute at least a majority of the members thereof, unless the election, or the nomination for election by Forest City REIT’s stockholders, of each member of the Board first elected during such period was approved by a vote of at least two-thirds of the members of the Board then still in office who were members of the Board at the beginning of any such period.
Notwithstanding the foregoing provisions of subsection (iii) or (iv) hereof, a “Change in Control” shall not be deemed to have occurred for purposes of the Plan, either (1) solely because any member of the Forest City Group, or any employee stock ownership plan or other employee benefit plan sponsored by a member of the Forest City Group, files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20 percent or otherwise, or because Forest City REIT reports that a change in control of Forest City REIT has or may have occurred or will or may occur in the future by reason of such beneficial ownership or (2) solely because of a change in control of any Subsidiary by which any Participant may be employed. Notwithstanding the foregoing provisions of subsections (i-iv) hereof, if, prior to any event described in subsections (i-iv) hereof that may be instituted by any person who is not an officer or director of Forest City REIT, or prior to any disclosed proposal that may be instituted by any person who is not an officer or director of Forest City REIT that could lead to any such event, management proposes any restructuring of Forest City REIT that ultimately leads to an event described in subsections (i-iv) hereof pursuant to such management proposal, then a “Change in Control” shall not be deemed to have occurred for purposes of the Plan.
6. “Code” shall mean the Internal Revenue Code of 1986, as amended.
7. “Committee” shall mean the Compensation Committee of the Board or such other committee as may be authorized by the Board to administer the Plan.
8. “Disability” shall have the meaning given to such term in the Company’s Long Term Disability Plan, as amended from time to time.
9. “Effective Time” shall 11:59 p.m. on December 31, 2015.
10. “Election Agreement” shall mean an agreement in the form designated from time to time by the Committee.
11. “Eligible Employee” shall mean a full-time or part-time employee of an Employer who is, as determined by the Committee, a member of a “select group of management or highly compensated employees,” within the meaning of Sections 201, 301 and 401 of ERISA, and who is selected by the Committee to participate in the Plan. Unless otherwise determined by the Committee, an Eligible Employee shall continue as such until termination of employment.
12. “Employer” shall mean the Company and any other member of the Forest City Group that has adopted the Plan (including Forest City Enterprises, Inc. and its successors).
13. “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
14. “Forest City Group” shall mean Forest City REIT and its subsidiaries (including the Company).
15. “Forest City REIT” shall mean Forest City Realty Trust, Inc. and its successors, including, without limitation, the surviving entity resulting from any merger or consolidation of Forest City REIT with any other entity.
16. “Incentive Compensation” shall mean cash incentive compensation payable pursuant to an incentive compensation plan designated by the Committee.
17. “Insolvent” shall mean that Forest City REIT has become subject to a pending voluntary or involuntary proceeding under the United States Bankruptcy Code or has become unable to pay its debts as they mature.
18. “Participant” shall mean any Eligible Employee who has at any time elected to defer the receipt of Base Salary or Incentive Compensation in accordance with the Plan and who, in conjunction with his or her Beneficiary, has not received a complete distribution of the amount credited to his or her Account.
19. “Permitted Holder” shall mean (i) any of Samuel H. Miller, Albert B. Ratner, Charles A. Ratner, James A. Ratner, Ronald A. Ratner, Nathan Shafran 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 or winding up of RMS, Limited Partnership receives a distribution of capital stock of the Forest City REIT, (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).
20. “Plan” shall mean this Forest City Employer, LLC Deferred Compensation Plan For Executives and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Deferred Compensation Plan For Executives. The Plan is unfunded and is maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees of an Employer.
21. “Subsidiary” shall mean any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
22. “Year” shall mean a calendar year.
ARTICLE II
ELECTION TO DEFER
1. Eligibility. Subject to Section 3 of this Article, an Eligible Employee may elect to defer receipt of all or a specified part of his or her Base Salary or Incentive Compensation for any
Year in accordance with Section 2 of this Article. An Eligible Employee’s entitlement to defer shall cease with respect to the Year following the Year in which he or she ceases to be an Eligible Employee.
2. Election to Defer. An Eligible Employee who desires to defer all or part of his or her Base Salary or Incentive Compensation pursuant to the Plan must complete and deliver an Election Agreement to the Committee before the first day of the Year for which such compensation would otherwise be paid. An Eligible Employee who timely delivers an executed Election Agreement to the Committee shall be a Participant. An Election Agreement that is timely delivered to the Committee shall be effective for the succeeding Year and, except as otherwise specified by an Eligible Employee in his or her Election Agreement, shall continue to be effective from Year to Year until revoked or modified by written notice to the Committee or until terminated automatically upon either the termination of the Plan, Forest City REIT becoming Insolvent or the Eligible Employee’s termination of employment. In order to be effective to revoke or modify an election relating to Base Salary otherwise payable in any particular Year or Incentive Compensation otherwise earned during any particular Year, a revocation or modification must be delivered prior to the beginning of the first Year of service for which such compensation is payable. Notwithstanding the above, in the event that an employee first becomes an Eligible Employee during the course of a Year, rather than as of the first day of a Year, the Eligible Employee’s Election Agreement must be filed no later than thirty (30) days following the date the employee first becomes an Eligible Employee, and such Election Agreement shall be effective only with regard to Base Salary and Incentive Compensation earned following the filing of the Election Agreement with the Committee. Any Participant receiving the Committee’s written authorization pursuant to Section 3 of this Article II to defer all or a part of his or her Base Salary or Incentive Compensation to a date after the Participant’s retirement date, or to a date prior to the Participant’s retirement date, must deliver an Election Agreement to the Committee at least two (2) years in advance of the date the Participant elects to have the benefit payments commence under the terms of Section 5 of this Article II. Notwithstanding any provision of the Plan to the contrary, (i) no person shall become a Participant under the Plan after December 31, 2004 and (ii) no Base Salary or Incentive Compensation may be deferred pursuant to the Plan after December 31, 2004.
3. Amount Deferred; Period of Deferral. A Participant shall designate on the Election Agreement the percentage or the dollar amount of his or her Base Salary or Incentive Compensation that is to be deferred, provided, however, that the maximum deferral by a Participant during any one Year shall be, with respect to such Year, the lesser of (i) $100,000 and (ii) 25% of the sum of the Base Salary which the Participant would otherwise receive during such Year and the Incentive Compensation which the Participant earned during such Year. A Participant may specify in the Election Agreement that different percentages or dollar amounts shall apply to Incentive Compensation payable under different incentive compensation plans. Unless the Committee permits (by written authorization) a Participant to elect a deferral period ending earlier or later than the Termination of Employment Date described hereafter, the applicable percentage(s) or dollar amount(s) of Base Salary or Incentive Compensation shall be deferred until the date the Participant ceases to be an employee by death, retirement or Disability or otherwise ceases employment (the “Termination of Employment Date”). Notwithstanding the foregoing, the Committee may, in its sole discretion, permit (by written authorization) a Participant to defer the applicable percentage(s) or dollar amount(s) of Base Salary or Incentive Compensation (a) to a date after the Participant’s
retirement date, or (b) to a date that precedes the Participant’s stated retirement date and that is at least two (2) years after the date of the election, provided the Participant shall timely file an Election Agreement in accordance with Article II, Section 2. The Committee may, in its sole discretion, permit (by written authorization) a Participant to modify or revoke any such election at any time and from time to time by the filing of a later written election with the Committee, provided, however, that any election made less than one year prior to the Participant’s Termination of Employment Date, or less than two years prior to the date the Participant elects to have the benefit payments commence, shall not be valid, and in such case, payment shall be made in accordance with the latest valid election of the Participant. Notwithstanding the foregoing, the Committee’s right to exercise discretion hereunder shall be limited to the extent necessary to ensure that amounts deferred under the Plan are not subject to Code Section 409A.
4. Accounts. Base Salary and Incentive Compensation that a Participant elects to defer shall be treated as if it were set aside in an Account on the date the Base Salary or Incentive Compensation would otherwise have been paid to the Participant. Such Account will be credited with interest at such rate and in such manner as is determined from time to time by the Committee; provided that such interest shall be credited only to the extent that crediting such interest will not cause amounts deferred under the Plan to be subject to Code Section 409A.
5. Payment of Account. The amount of a Participant’s Account shall be paid as provided in this Section 5.
(i) The amount of a Participant’s Account attributable to deferral of Base Salary and Incentive Compensation shall be paid to the Participant in a lump sum or in a number of approximately equal annual installments (not in excess of fifteen (15) installments) as designated by the Participant in the Election Agreement. The lump sum payment or the first annual installment, as the case may be, shall be made as soon as practicable following the end of the period of deferral as specified in Section 3 of this Article. In the event that the Account is paid in installments, the amount of such Account remaining unpaid shall continue to bear interest, as provided in Section 4 of this Article.
(ii) Notwithstanding the payment terms designated by a Participant on the Election Agreement, but subject to the approval of the Committee as described below in this Section, a Participant may elect to change the form of payment of his or her Account to a form of payment otherwise permitted under Section 5(i) of this Article II; provided such election shall be in writing on a form provided by the Committee, and provided further that any election made less than one year prior to the Participant’s termination of employment by death, retirement, Disability or otherwise shall not be valid, and in such case, payment shall be made in accordance with the Participant’s original Election Agreement. Any such election may be changed or revoked by the Participant at any time and from time to time by the filing of a later written election with the Committee provided that any election made less than one year prior to a Participant’s termination of employment by death, retirement, Disability or otherwise shall not be valid, and in such case, payment shall be made in accordance with the latest valid election of the Participant. The payment of a lump sum amount, or the payment of a number of approximately equal annual installments, not in excess of fifteen (15) payments, as designated by the Participant in the Election Agreement,
to a Participant (or his or her Beneficiary or Beneficiaries) pursuant to this Section shall discharge all obligations of the Company (and any other member of the Forest City Group) to such Participant (and his or her Beneficiaries) under the Plan.
6. Death of a Participant. In the event of the death of a Participant, the remaining amount of the Participant’s Account shall be paid to the Beneficiary or Beneficiaries designated in a writing substantially in the form attached hereto as Exhibit A (the “Beneficiary Designation”) in accordance with the Participant’s latest valid election, or in accordance with a special payment election filed by the Participant with the Committee that is to be operative and override any other payment election filed by the Participant in the event of the death of the Participant. A Participant’s Beneficiary Designation may be changed at any time prior to his or her death by the execution and delivery of a new Beneficiary Designation. The Beneficiary Designation on file with the Company (including any Beneficiary Designation on file with Forest City Enterprises, Inc. immediately prior to the Effective Time) that bears the latest date at the time of the Participant’s death shall govern. In the absence of a Beneficiary Designation or the failure of any Beneficiary to survive the Participant, the amount of the Participant’s Account shall be paid to the Participant’s estate in a lump sum amount within 90 days after the appointment of an executor or administrator. In the event of the death of the Beneficiary or Beneficiaries after the death of a Participant, any amount remaining in the Account shall be paid in a lump sum to the estate of the last surviving Beneficiary within 90 days after the appointment of an executor or administrator.
7. Small Payments. Notwithstanding the foregoing, if installment payments elected by a Participant would result in a payment of less than $500, the entire amount of the Participant’s Account may at the discretion of the Committee be paid in a lump sum in accordance with Section 5 of this Article.
8. Acceleration.
(i) Notwithstanding the above, in the event of an unforeseeable emergency, as defined in section 1.457-2(h)(4) and (5) of the Income Tax Regulations, that is caused by an event beyond the control of the Participant or Beneficiary and that would result in severe financial hardship to the individual if acceleration were not permitted, the Committee may in its sole discretion accelerate the payment to the Participant or Beneficiary of the amount of his or her Account, but only up to the amount necessary to meet the emergency.
(ii) Notwithstanding any other provision of the Plan, the Participant, or his or her Beneficiary in the event of his or her death, shall be permitted, at any time, to make an election to receive, payable as soon as practicable after such election is received by the Committee, the remaining amount of the Account in the form of a single lump sum, if (and only if) the Account is reduced by 10%, which 10% amount shall thereupon irrevocably be forfeited.
9. Termination of Participation. Notwithstanding any other provision of the Plan, a Participant’s participation in the Plan shall terminate upon a determination by the Committee that the Participant is not a member of a select group of management or highly compensated employees of his or her employer, within the meaning of ERISA. Upon such a determination, the Company or
other member of the Forest City Group, as the case may be, that employs the Participant shall make an immediate lump sum payment to the Participant equal to the amount credited to his or her Account.
ARTICLE III
ADMINISTRATION
The Committee, shall be responsible for the general administration of the Plan and for carrying out the provisions hereof. The Committee shall have all such powers as may be necessary to carry out the provisions of the Plan, including the power to (i) resolve all questions relating to eligibility for participation in the Plan and the amount in the Account of any Participant and all questions pertaining to claims for benefits and procedures for claim review, (ii) resolve all other questions arising under the Plan, including any factual questions and questions of construction, and (iii) take such further action as the Committee shall deem advisable in the administration of the Plan. The actions taken and the decisions made by the Committee hereunder shall be final and binding upon all interested parties. In accordance with the provisions of Section 503 of ERISA, the Committee shall provide a procedure for handling claims of Participants or their Beneficiaries under the Plan. Such procedure shall be in accordance with regulations issued by the Secretary of Labor and shall provide adequate written notice within a reasonable period of time with respect to the denial of any such claim as well as a reasonable opportunity for a full and fair review by the Committee of any such denial. It is intended that no action be taken with respect to the Plan that would cause amounts deferred under the Plan to be subject to Code Section 409A. The Plan shall be administered in a manner that effects such intent. In furtherance of, but without limiting the foregoing, the Committee (i) shall not have the right to exercise its discretion under the Plan or to interpret the Plan in a manner that would cause amounts deferred under the Plan to be subject to Code Section 409A and (ii) is authorized to adopt rules or regulations deemed necessary or appropriate to ensure that amounts deferred under the Plan are not subject to Code Section 409A.
ARTICLE IV
AMENDMENT AND TERMINATION
The Company reserves the right to amend or terminate the Plan at any time and if the amendment or termination impacts any officer of Forest City REIT who is subject to the provisions of Section 16 of the Exchange Act, then the action must also be authorized by the Board or the Compensation Committee of the Board; provided, however, that no such action shall adversely affect any Participant or Beneficiary who has an Account, or result in any change in the timing or manner of payment of the amount of any Account (except as otherwise permitted under the Plan), without the consent of the Participant or Beneficiary; and provided further that such consent shall not apply to any amendment or termination deemed necessary by the Company to ensure that amounts deferred under the Plan are not subject to Code Section 409A.
ARTICLE V
MISCELLANEOUS
1. Non-alienation of Deferred Compensation. Except as permitted by the Plan, no right or interest under the Plan of any Participant or Beneficiary shall, without the written consent of the Company, be (i) assignable or transferable in any manner, (ii) subject to alienation, anticipation, sale, pledge, encumbrance, attachment, garnishment or other legal process or (iii) in any manner liable for or subject to the debts or liabilities of the Participant or Beneficiary.
2. Participation by Employees of Affiliates. An Eligible Employee who is employed by an Employer other than the Company and who elects to participate in the Plan shall participate on the same basis as an Eligible Employee of the Company. The Account of a Participant employed by such Employer shall be paid in accordance with the Plan solely by such Employer to the extent attributable to Base Salary or Incentive Compensation that would have been paid by such Employer in the absence of deferral pursuant to the Plan, unless the Committee otherwise determines that the Company shall be the obligor.
3. Interest of Participant. The obligation of the Company (or any other member of the Forest City Group) under the Plan to make payment of amounts reflected in an Account merely constitutes an unsecured promise to make payments from its general assets, and no Participant or Beneficiary shall have any interest in, or a lien or prior claim upon, any property of any member of the Forest City Group. Nothing in the Plan shall be construed as guaranteeing future employment to any Eligible Employee. It is the intention of the Company that the Plan be unfunded for tax purposes and for purposes of Title I of ERISA. The Company may create a trust to hold funds to be used in payment of its obligations under the Plan, and may fund such trust; provided, however, that any funds contained therein shall remain liable for the claims of the Company’s and Forest City REIT’s general creditors. Notwithstanding the above, upon the earlier to occur of (i) a Change in Control or (ii) a declaration by the Board that a Change in Control is imminent, the Company shall promptly to the extent it has not previously done so:
(a) establish an irrevocable trust, generally consistent with the provisions of Revenue Procedure 92-64 (the funds of which shall be subject to the claims of the Company’s and Forest City REIT’s general creditors), to hold funds to be used in payment of its obligations under the Plan; and
(b) transfer to the trustee of such trust, to be added to the principal thereof, an amount equal to (I) the aggregate amount credited to the Accounts of all of the Participants and Beneficiaries under the Plan, less (II) the balance, if any, in the trust at such time.
4. Claims of Other Persons. The provisions of the Plan shall in no event be construed as giving any other person, firm or corporation any legal or equitable right as against any member of the Forest City Group or the officers, employees or directors of any member of the Forest City Group, except any such rights as are specifically provided for in the Plan or are hereafter created in accordance with the terms and provisions of the Plan.
5. Severability. The invalidity and unenforceability of any particular provision of the Plan shall not affect any other provision hereof, and the Plan shall be construed in all respects as if such invalid or unenforceable provision were omitted.
6. Governing Law. Except to the extent preempted by federal law, the provisions of the Plan shall be governed and construed in accordance with the laws of the State of Delaware.
7. Relationship to Other Plans. The Plan is intended to serve the purposes of and to be consistent with any incentive compensation plan approved by the Committee for purposes of the Plan.
EXECUTED as of December 31, 2015.
FOREST CITY EMPLOYER, LLC
By:
David J. LaRue
President and Chief Executive Officer
EXHIBIT A
FOREST CITY EMPLOYER, LLC
DEFERRED COMPENSATION PLAN FOR EXECUTIVES
BENEFICIARY DESIGNATIONS
In accordance with the terms and conditions of the Forest City Employer, LLC Deferred Compensation Plan For Executives (the “Plan”), I hereby designate the person(s) indicated below as my beneficiary(ies) to receive the amounts payable under said Plan.
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Name _______________________ | | Name _______________________ |
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Portion of Account _________% | | Portion of Account _________% |
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Address ______________________ | | Address ______________________ |
_____________________________ | | _____________________________ |
_____________________________ | | _____________________________ |
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Social Sec. No. of | | Social Sec. No. of |
Beneficiary ___________________ | | Beneficiary ___________________ |
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Relationship __________________ | | Relationship __________________ |
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Date of Birth __________________ | | Date of Birth __________________ |
In the event that the above-named beneficiary(ies) predecease(s) me, I hereby designate the following person as beneficiary(ies);
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| | |
Name _______________________ | | Name _______________________ |
| | |
Portion of Account _________% | | Portion of Account _________% |
| | |
Address ______________________ | | Address ______________________ |
_____________________________ | | _____________________________ |
_____________________________ | | _____________________________ |
| | |
Social Sec. No. of | | Social Sec. No. of |
Beneficiary ___________________ | | Beneficiary ___________________ |
| | |
Relationship __________________ | | Relationship __________________ |
I hereby expressly revoke all prior designations of beneficiary(ies), reserve the right to change the beneficiary(ies) herein designated and agree that the rights of said beneficiary(ies) shall be subject to the terms of the Plan. In the event that there is no beneficiary living at the time of my death, I understand that the amounts payable under the Plan will be paid to my estate.
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_________________ | | ____________________ | | ______________________________ |
Date | | (Signature) | | (Print or type name) |
FOREST CITY EMPLOYER, LLC
2005 DEFERRED COMPENSATION PLAN FOR EXECUTIVES
(Effective December 31, 2015)
Forest City Enterprises, Inc. established, effective January 1, 2005, the Forest City Enterprises, Inc. 2005 Deferred Compensation Plan For Executives. The Plan was amended and restated as of January 1, 2005 and January 1, 2008 and amended as of December 17, 2009. The Plan was established to provide a select group of management or highly compensated employees with the opportunity to defer base salary and certain incentive compensation payments, in accordance with the provisions of the Plan.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
ARTICLE I
DEFINITIONS
For the purposes hereof, the following words and phrases shall have the meanings set forth below, unless their context clearly requires a different meaning:
1. “Account” shall mean the bookkeeping account maintained by the Committee on behalf of each Participant pursuant to Section 4 of Article II that is credited with Base Salary or Incentive Compensation which is deferred by a Participant, and the interest on such amounts as determined in accordance with Section 4 of Article II and that is comprised of the Termination of Employment Payment Subaccount and the Specified Year Payment Subaccount to which deferred Base Salary and Incentive Compensation, respectively, are credited.
2. “Base Salary” shall mean the annual fixed or base compensation, payable biweekly or otherwise to a Participant, including the amount of such compensation earned during the final payroll period of the year within the meaning of Treas. Reg. Section 1.409A-2(a)(3) or any successor provision.
3. “Beneficiary” or “Beneficiaries” shall mean the person or persons, including one or more trusts, designated by a Participant in accordance with the Plan to receive payment of the remaining balance of the Participant’s Account in the event of the death of the Participant prior to receipt of the entire amount credited to the Participant’s Account.
4. “Board” shall mean the Board of Directors of Forest City REIT.
5. “Change in Control” shall mean that:
(i) Forest City REIT is merged or consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such transaction is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of Forest City REIT immediately prior to such transaction or (b) Permitted Holders;
(ii) Forest City REIT sells or otherwise transfers all or substantially all of its assets to any other corporation or other legal person, and as a result of such sale or transfer less than a majority of the combined voting power of the securities of such corporation or person that are outstanding immediately following the consummation of such sale or transfer is held in the aggregate by either (a) the holders of Voting Stock (as hereinafter defined) of Forest City REIT immediately prior to such sale or transfer or (b) Permitted Holders;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report) thereto, each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) other than a Permitted Holder has become the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 20 percent or more of the combined voting power of the then-outstanding securities entitled to vote generally in the election of the Board (the “Voting Stock”);
(iv) Forest City REIT files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of Forest City REIT has or may have occurred or will or may occur in the future pursuant to any then-existing contract or transaction, other than with respect to a Permitted Holder; or
(v) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the Board cease for any reason to constitute at least a majority of the members thereof, unless the election, or the nomination for election by Forest City REIT’s stockholders, of each member of the Board first elected during such period was approved by a vote of at least two-thirds of the members of the Board then still in office who were members of the Board at the beginning of any such period.
Notwithstanding the foregoing provisions of subsection (iii) or (iv) hereof, a “Change in Control” shall not be deemed to have occurred for purposes of the Plan, either (1) solely because any member of the Forest City Group, or any employee stock ownership plan or other employee benefit plan sponsored by any member of the Forest City Group, files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock, whether in excess of 20 percent or otherwise, or because Forest City REIT reports that a change in control of Forest City REIT has or may have occurred or will or may occur in the future by reason of such beneficial ownership or (2) solely because of a change in control of any Subsidiary by which any Participant may be employed.
Notwithstanding the foregoing provisions of subsections (i-iv) hereof, if, prior to any event described in subsections (i-iv) hereof that may be instituted by any person who is not an officer or director of Forest City REIT, or prior to any disclosed proposal that may be instituted by any person who is not an officer or director of Forest City REIT that could lead to any such event, management proposes any restructuring of Forest City REIT that ultimately leads to an event described in subsections (i-iv) hereof pursuant to such management proposal, then a “Change in Control” shall not be deemed to have occurred for purposes of the Plan.
6. “Code” shall mean the Internal Revenue Code of 1986, as amended.
7. “Committee” shall mean the Compensation Committee of the Board or such other committee as may be authorized by the Board to administer the Plan.
8. “Deferral Election” shall mean the Election Agreement (or portion thereof) completed by a Participant and filed with the Committee that indicates the amount of his or her Base Salary and/or Incentive Compensation that is or will be deferred under the Plan for a Deferral Period.
9. “Deferral Period” shall mean, except as otherwise provided in accordance with Section 2 of Article II of the Plan, the Year that commences after each Election Filing Date.
10. “Disability” shall have the meaning given to such term in the Company’s Long Term Disability Plan, as amended from time to time.
11. “Effective Time” shall mean 11:59 p.m. on December 31, 2015.
12. “Election Agreement” shall mean an agreement in the form that the Committee may designate from time to time.
13. “Election Filing Date” shall mean December 31 of the Year next preceding the first day of the Year for the Participant’s Base Salary and/or Incentive Compensation would otherwise be earned.
14. “Eligible Employee” shall mean a full-time or part-time employee of an Employer who is, as determined by the Committee, a member of a “select group of management or highly compensated employees,” within the meaning of Sections 201, 301 and 401 of ERISA, and who is selected by the Committee to participate in the Plan.
15. “Employer” shall mean the Company, any other member of the Forest City Group that has adopted the Plan (including Forest City Enterprises, Inc. and its successors), RMS Investment Corp. and RMS Management.
16. “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
17. “Fixed Installment Payment Method” shall mean the method of calculating the amount of each biweekly installment described in Section 5(ii)(c) of Article II of the Plan.
18. “Forest City Group” shall mean Forest City REIT and its Subsidiaries (including the Company).
19. “Forest City REIT” shall mean Forest City Realty Trust, Inc. and its successors, including, without limitation, the surviving entity resulting from any merger or consolidation of Forest City REIT with any other entity.
20. “Incentive Compensation” shall mean cash incentive compensation payable pursuant to an incentive compensation plan, whether such plan is now in effect or hereafter established by the Company or another member of the Forest City Group, which the Committee may designate from time to time.
21. “Key Employee” shall mean a “specified employee” with respect to Forest City REIT (or a controlled group member) determined pursuant to procedures implemented by the Forest City Group in compliance with Section 409A of the Code.
22. “Moody’s Rate” shall mean, for each calendar quarter, the interest rate that is the sum of (i) the average of the Moody’s long-term corporate bond yields for A, Aa, and Aaa bonds first published for such quarter plus (ii) .50. For purposes of determining the amount of interest to be credited to an Account under Section 4 of Article II of the Plan, the Moody’s Rate shall be determined on a quarterly basis.
23. “Participant” shall mean any Eligible Employee who has at any time made a Deferral Election in accordance with Section 2 of Article II of the Plan and who, in conjunction with his or her Beneficiary, has not received a complete distribution of the amount credited to his or her Account.
24. “Payment Election” shall mean the Specified Year Payment Election and/or the Termination of Employment Payment Election.
25. “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 or winding up of RMS, Limited Partnership receives a distribution of capital stock of Forest City REIT, (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).
26. “Plan” shall mean this Forest City Employer, LLC 2005 Deferred Compensation Plan For Executives and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. 2005 Deferred Compensation Plan For Executives. The Plan is unfunded and is maintained by the Company primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees of an Employer.
27. “Specified Year Payment Election” shall mean the Election Agreement (or portion thereof) completed by a Participant and filed with the Committee that indicates the form of payment
of the Participant’s Base Salary and/or Incentive Compensation that is or will be deferred, subject to Section 5(v) of Article II, pursuant to a Deferral Election under the Plan until a specified year designated by the Participant.
28. “Specified Year Payment Subaccount” shall mean the bookkeeping account maintained by the Company pursuant to Section 4 of Article II on behalf of each Participant who makes a Specified Year Payment Election and that is credited with amounts subject to such Specified Year Payment Election.
29. “Subsidiary” shall mean any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
30. “Termination of Employment” shall mean a termination of employment with an Employer that constitutes a separation from service within the meaning of Treasury Regulation Section 1.409A-1(h)(1)(ii).
31. “Termination of Employment Payment Election” shall mean the Election Agreement (or portion thereof) completed by a Participant and filed with the Committee that indicates the form of payment of the Participant’s Base Salary and/or Incentive Compensation that is or will be deferred pursuant to a Deferral Election under the Plan until the Participant’s Termination of Employment.
32. “Termination of Employment Payment Subaccount” shall mean the bookkeeping account maintained by the Company pursuant to Section 4 of Article II on behalf of each Participant who makes a Termination of Employment Payment Election that is credited with amounts subject to such Termination of Employment Payment Election.
33. “Unforeseeable Emergency” shall mean a severe financial hardship to a Participant resulting from (i) an illness or accident of the Participant or Beneficiary or his or her spouse or dependent (as defined in Section 152(a) of the Code), (ii) loss of the Participant’s property due to casualty, or (iii) other similar or extraordinary circumstances arising as a result of events beyond the control of the Participant.
34. “Variable Installment Payment Method” shall mean the method of calculating the amount of each biweekly installment described in Section 5(ii)(d) of Article II of the Plan.
35. “Year” shall mean the calendar year.
ARTICLE II
ELECTION TO DEFER
1. Eligibility. An Eligible Employee may make an annual Deferral Election with respect to receipt of all or a specified part of his or her Base Salary or Incentive Compensation earned for any Year in accordance with Section 2 of this Article. An Eligible Employee who makes a Deferral Election must also make a Payment Election with respect to the amount deferred in accordance
with Section 5 of this Article. An Eligible Employee’s entitlement to defer shall cease with respect to the Deferral Period following the Deferral Period in which he or she ceases to be an Eligible Employee.
2. Deferral Elections. All Deferral Elections, once effective, shall be irrevocable, shall be made on an Election Agreement filed with the Committee and shall comply with the following requirements:
(i) The Deferral Election shall specify the amount of Base Salary and/or Incentive Compensation that is to be deferred within the limits under Section 3 of this Article.
(ii) The Deferral Election shall be made by, and shall be effective as of, the applicable Election Filing Date; provided, however, that to the extent permitted by Section 409A of the Code, the Committee may permit Participants to make a Deferral Election with respect to Incentive Compensation that constitutes “performance-based compensation” (within the meaning of Section 409A(a)(4)(B)(iii) of the Code) at a time later than the time described earlier in this first sentence but no later than six (6) months prior to the end of the performance period with respect to which the Incentive Compensation is earned. Notwithstanding the foregoing, the Committee may permit an employee who first becomes an Eligible Employee during the course of a Year, rather than as of the first day of such Year, to make a Deferral Election with respect to Base Salary and/or Incentive Compensation within thirty (30) days following the date the employee first becomes an Eligible Employee, and such Deferral Election shall be effective on the date made and shall be effective only with regard to Base Salary and/or (unless the proviso in the first sentence of this Section 2(ii) applies) Incentive Compensation earned during such Year following the filing of the Election Agreement with the Committee (with the portion of any of Incentive Compensation earned during such Year following the filing of the Election Agreement with the Committee as determined pursuant to the pro-ration method permitted under Section 409A of the Code).
3. Amount Deferred. A Participant shall designate on the Election Agreement the percentage or the dollar amount of his or her Base Salary or Incentive Compensation that is to be deferred, provided, however, that the maximum deferral by a Participant during any one Deferral Period shall be, with respect to such Deferral Period, the lesser of (i) $100,000 and (ii) 25% of the sum of the Base Salary and Incentive Compensation which the Participant would otherwise earn during such Deferral Period.
4. Accounts. Base Salary and Incentive Compensation that a Participant elects to defer shall be credited to an Account on the date the Base Salary or Incentive Compensation would otherwise have been paid to the Participant. Such Account will be credited with interest at the Moody’s Rate as determined by the Committee on a quarterly basis.
5. Payment Elections. Subject to Sections 5(iii), 6, 7, and 8 of this Article, all Payment Elections shall be irrevocable, shall be made on an Election Agreement filed with the Committee and shall comply with the following requirements:
(i) The Payment Election shall contain the Participant’s elections regarding the time of the commencement of payment of amounts in his or her Account, to the extent the Participant
does not already have an election regarding the time of the commencement of payment applicable to his or her Account. In addition, if a Participant has made a Specified Year Payment Election pursuant to Section 5(i)(a)(2)(I) of this Article and the Participant makes a Deferral Election for the Deferral Period immediately prior to the specified year designated in such Specified Year Payment Election, the time of commencement of payment of amounts in his or her Account for that and all future Deferral Periods shall be payable in accordance with the Participant’s Termination of Employment Payment Election and, if none, shall be the time elected by the Participant pursuant to a new Payment Election filed in connection with the Deferral Election for the first of such future Deferral Periods, and, if none, shall be payable upon the Participant’s Termination of Employment.
(a) A Participant may elect to commence payment (1) of all of the Participant’s Account upon the date on which he or she incurs a Termination of Employment for any reason, including, without limitation, by reason of death, retirement, or Disability, or (2) to the extent permitted by the Committee in an Election Agreement (I) a designated percentage or dollar amount of his or her Account in a specified year that begins at least five years after the date on which the Deferral Election becomes effective, and (II) the remaining percentage or dollar amount (if any) of the Participant’s Account, as the case may be, upon the date on which the Participant incurs a Termination of Employment for any reason, including, without limitation, by reason of death, retirement, or Disability. Notwithstanding the foregoing, effective for any Specified Year Payment Election made on or prior to December 17, 2009, the phrase “five years” in Section 5(i)(a)(2)(I) of this Article II shall be “two years”.
(b) Payments made in accordance with the Participant’s Termination of Employment Payment Election under Section 5(i)(a)(1) or Section 5(i)(a)(2)(II) of this Article shall be paid or commence to be paid on the date of the Termination of Employment and payments made in accordance with the Participant’s Specified Year Payment Election under Section 5(i)(a)(2)(I) of this Article shall be paid or commence to be paid on the first payroll date next following June 1 of the specified year.
(ii) The Payment Election shall also contain the Participant’s elections regarding the form of payment of amounts in his or her Account, to the extent the Participant does not already have an election regarding the form of payment applicable to his or her Account. In addition, if a Participant has made a Specified Year Payment Election pursuant to Section 5(i)(a)(2)(I) of this Article and the Participant makes a Deferral Election for the Deferral Period immediately prior to the specified year designated in such Specified Year Payment Election, the form of payment of amounts in his or her Account for that and all future Deferral Periods shall be payable in accordance with the Participant’s Termination of Employment Payment Election and, if none, shall be the form elected by the Participant pursuant to a new Payment Election filed in connection with the Deferral Election for the first of such future Deferral Periods, and, if none, shall be payable in the form of a single lump sum payment.
(a) A Participant may elect to receive amounts credited to:
(1) his or her Termination of Employment Payment Subaccount in one of the following forms: (a) a single lump sum payment, (b) a number of biweekly installments over a period of five (5) years, or (c) a number of biweekly installments over a period of ten (10) years, and
(2) his or her Specified Year Payment Subaccount in one of the following forms: (a) a single lump sum payment or (b) a number of biweekly installments over a period of five (5) years.
(b) In the case of a Participant who elects installment payments under Section 5(ii)(a) of this Article, such Participant shall also elect one of the following methods of calculating installment payments: (1) the Fixed Installment Payment Method or (2) the Variable Installment Payment Method.
(c) In the event that all or a portion of a Participant’s Account is payable under the Fixed Installment Payment Method, all of the biweekly installment payments during the installment period shall be equal in amount and the amount of each biweekly installment shall be calculated so that the total installment payments have a present value equivalent to the value of the Participant’s Account subject to an installment Payment Election at the time such payments commence. The interest rate used for purposes of determining the installment payment amount in the prior sentence shall be the average of the Moody’s Rates in effect during the four quarters that precede the quarter in which installment payments commence.
(d) In the event that all or a portion of a Participant’s Account is payable under the Variable Installment Payment Method, the amount of each installment shall be determined as follows:
(1) The value, at the time of the first installment payment, of the portion of the Participant’s Account payable under the Variable Installment Payment Method shall be divided by the number of installment payments that will be made during the installment period;
(2) The amount determined under (1) shall be paid to the Participant on each payment date through the end of the Year in which the installment payments begin;
(3) After the end of the Year described in (2), the value at the end of such Year of the portion of the Account payable in installments shall be divided by the number of installment payments then remaining in the installment period;
(4) The amount determined under (3) shall be paid to the Participant on each payment date during the following Year;
(5) The procedures described in (3) and (4) shall be followed for any following Year in which installment payments will be made;
(6) The portion of the Account subject to such installment payments that remains unpaid from time to time shall continue to be credited with gains, losses, interest and other earnings as provided in Section 4 of this Article;
(7) The final installment payment shall include an adjustment for gains, losses, interest and other earnings pursuant to Section 4 of this Article during the period
between the beginning of the Year in which the final installment payment is made and the date of such final payment; and
(8) Notwithstanding the foregoing provisions of this Section 5(ii)(d), a Participant who commences his or her installment payments after June 30 of a Year shall be paid the amount determined under (1) on each payment date (a) through the end of the Year in which the installment payments began and (b) through the end of the immediately following Year and such Participant shall not have the amount of his or her payments recalculated as described in (3) until after the end of such immediately following Year.
(iii) Except as provided in Section 2(ii) of this Article, the Payment Election (s) shall be made by, and shall be effective as of, the applicable Election Filing Date. A Participant may not have more than one Termination of Employment Payment Election and one Specified Year Payment Election in effect at any one time. In addition, if a Participant has made a Specified Year Payment Election pursuant to Section 5(i)(a)(2)(I) of this Article and the Participant makes a Deferral Election for the Deferral Period immediately prior to the specified year designated in such Specified Year Payment Election, the time of commencement and form of payment of amounts in his or her Account for that and all future Deferral Periods shall be payable in accordance with the Participant’s Termination of Employment Payment Election and, if none, shall be the time of commencement and form of payment elected by the Participant pursuant to a new Payment Election filed in connection with the Deferral Election for the first of such future Deferral Periods, and, if none, shall be payable in the form of a single lump sum payment upon the Participant’s Termination of Employment.
(iv) Notwithstanding the foregoing provisions of this Section 5, in the event that a Participant makes a Specified Year Payment Election pursuant to Section 5(i)(a)(2)(I) of this Article and prior to the date payment is due to be paid or commence to be paid under such election (as described in Section 5(i)(b) of this Article) he or she incurs a Termination of Employment, payment of the Participant’s Specified Year Payment Subaccount shall commence on the date of such Termination of Employment in the form elected by the Participant with respect to his or her Termination of Employment Payment Subaccount under Section 5(ii)(a)(1) of this Article, and if none, in the form elected by the Participant with respect to his or her Specified Year Payment Subaccount under Section 5(ii)(a)(2) of this Article.
(v) Notwithstanding the foregoing provisions of this Section 5, if the Participant is a Key Employee, payment on account of Termination of Employment shall commence on the first payroll date next following the first business day of the seventh month following such Termination of Employment (or, if earlier, the date of death). In the event that all or a portion of a Key Employee’s Account is payable in installments upon a Termination of Employment, the total amount of biweekly installment payments to which such Key Employee would otherwise be entitled during the six-month period following the date of such Termination of Employment shall also be paid on the first payroll date next following the first business day of the seventh month following such Termination of Employment (or, if earlier, the date of death).
(vi) The payment of a single lump-sum amount, or the payment of a number of biweekly installments as designated by the Participant in the Election Agreement, to a Participant
(or his or her Beneficiary or Beneficiaries) pursuant to this Section 5 shall discharge all obligations of the Company (and any other member of the Forest City Group) to such Participant (and his or her Beneficiaries) under the Plan.
6. Death of a Participant. In the event of the death of a Participant, the remaining amount of the Participant’s Account shall be paid to his or her Beneficiary or Beneficiaries designated in a writing on a form that the Committee may designate from time to time (the “Beneficiary Designation”). A Participant’s Beneficiary Designation may be changed at any time prior to his or her death by the execution and delivery of a new Beneficiary Designation. The Beneficiary Designation on file with the Company (including any Beneficiary Designation on file with Forest City Enterprises, Inc. immediately prior to the Effective Time) that bears the latest date at the time of the Participant’s death shall govern. In the absence of a Beneficiary Designation or the failure of any Beneficiary to survive the Participant, the amount of the Participant’s Account shall be paid to the Participant’s estate. Amounts payable to the Participant’s Beneficiary, Beneficiaries or estate under this Section 6 shall be paid in the form of a single lump sum payment as soon as practicable, but no later than ninety (90) days, after the date of the Participant’s death; provided that the Beneficiary, Beneficiaries or representative of the estate, as the case may be, shall not have the right to designate the year of payment.
7. Small Payments. Notwithstanding the foregoing, if at the time a Participant commences payment of his or her entire Account balance pursuant to (i) his or her Termination of Employment Payment Election under Section 5(i)(a)(1) of Article II, (ii) his or her Specified Year Payment Election under Section 5(i)(a)(2)(I) of Article II, or (iii) Section 5(iv) of Article II, such Account balance does not exceed the applicable dollar amount then in effect under Section 402(g)(1)(B) of the Code, such Account shall be automatically paid to such Participant in a single lump-sum payment on the date of the Participant’s Termination of Employment or the date applicable to the Specified Year Payment Election, as the case may be; provided, however, that if the Participant is a Key Employee, payment on account of a Termination of Employment shall occur on the first payroll date next following the first business day of the seventh month after such Termination of Employment (or, if earlier, the date of death).
8. Unforeseeable Emergency. Notwithstanding the foregoing, in the event of an Unforeseeable Emergency and at the request of a Participant, accelerated payment may, in the discretion of the Committee, be made to the Participant of all or a part of his or her Account. Payments of amounts as a result of an Unforeseeable Emergency may not exceed the amount necessary to satisfy such Unforeseeable Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution(s), after taking into account the extent to which the hardship is or may be relieved through reimbursement or compensation by insurance or otherwise by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship).
9. Termination of Participation. Notwithstanding any other provision of the Plan, a Participant’s active participation in the Plan shall terminate upon a determination by the Committee that the Participant is not a member of a select group of management or highly compensated employees of his or her employer, within the meaning of ERISA.
ARTICLE III
ADMINISTRATION
The Committee shall be responsible for the general administration of the Plan and for carrying out the provisions hereof. The Committee shall have all such powers as may be necessary to carry out the provisions of the Plan, including the power to (i) resolve all questions relating to eligibility for participation in the Plan and the amount in the Account of any Participant and all questions pertaining to claims for benefits and procedures for claim review, (ii) resolve all other questions arising under the Plan, including any factual questions and questions of construction, and (iii) take such further action as the Committee shall deem advisable in the administration of the Plan. The actions taken and the decisions made by the Committee hereunder shall be final and binding upon all interested parties. In accordance with the provisions of Section 503 of ERISA, the Committee shall provide a procedure for handling claims of Participants or their Beneficiaries under the Plan. Such procedure shall be in accordance with regulations issued by the Secretary of Labor and shall provide adequate written notice within a reasonable period of time with respect to the denial of any such claim as well as a reasonable opportunity for a full and fair review by the Committee of any such denial. It is intended that the Plan comply with the provisions of Section 409A of the Code, so as to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year that is prior to the taxable year or years in which such amounts would otherwise actually be distributed or made available to Participants or Beneficiaries. This Plan shall be administered in a manner that effects such intent.
ARTICLE IV
AMENDMENT AND TERMINATION
The Company reserves the right to amend or terminate the Plan at any time (and if the amendment or termination impacts any officer of Forest City REIT who is subject to the provisions of Section 16 of the Exchange Act, then the action must also be authorized by the Board or the Compensation Committee of the Board), except that no such action shall adversely affect any Participant or Beneficiary who has an Account, or result in any change in the timing or manner of payment of the amount of any Account (except as otherwise permitted under the Plan), without the consent of the Participant or Beneficiary (provided, however, that this limitation requiring the consent of Participants or Beneficiaries to certain actions shall not apply to any amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code and any termination to the extent, and in the circumstances described, in Treas. Reg. Section 1.409A-3(j)(4)(ix), or any successor provision).
ARTICLE V
MISCELLANEOUS
1. Non-Alienation of Deferred Compensation. No right or interest under the Plan of any Participant or Beneficiary shall be (i) assignable or transferable in any manner, (ii) subject to alienation, anticipation, sale, pledge, encumbrance, attachment, garnishment or other legal process or (iii) in any manner liable for or subject to the debts or liabilities of the Participant or Beneficiary. Notwithstanding the foregoing, to the extent permitted by Section 409A of the Code, the payment of part or all of an interest under this Plan may be made to an individual other than the Participant or Beneficiary, to the extent necessary to fulfill a “domestic relations order” as defined in Section 414(p)(1)(B) of the Code.
2. Participation by Employees of an Employer Other than the Company. An Eligible Employee who is employed by an Employer other than the Company and who elects to participate in the Plan shall participate on the same basis as an Eligible Employee of the Company. The Account of a Participant employed by such Employer shall be paid in accordance with the Plan solely by such Employer to the extent attributable to Base Salary or Incentive Compensation that would have been paid by such Employer in the absence of deferral pursuant to the Plan, unless the Committee otherwise determines that the Company shall be the obligor.
3. Interest of Participant. The obligation of the Company (or any other member of the Forest City Group) under the Plan to make payment of amounts reflected in an Account merely constitutes an unsecured promise to make payments from its general assets, and no Participant or Beneficiary shall have any interest in, or a lien or prior claim upon, any property of any member of the Forest City Group. Nothing in the Plan shall be construed as guaranteeing future employment to any Eligible Employee. It is the intention of the Company that the Plan be unfunded for tax purposes and for purposes of Title I of ERISA. The Company may create a trust to hold funds to be used in payment of its obligations under the Plan, and may fund such trust; provided, however, that any funds contained therein shall remain liable for the claims of the Company’s and Forest City REIT’s general creditors. Notwithstanding the above, upon the earlier to occur of (i) a Change in Control or (ii) a declaration by the Board that a Change in Control is imminent, the Company shall promptly to the extent it has not previously done so:
(a) establish an irrevocable trust, generally consistent with the provisions of Revenue Procedure 92-64, the funds of which shall be subject to the claims of the Company’s and Forest City REIT’s general creditors, to hold funds to be used in payment of its obligations under the Plan; and
(b) transfer to the trustee of such trust, to be added to the principal thereof, an amount equal to (I) the aggregate amount credited to the Accounts of all of the Participants and Beneficiaries under the Plan, less (II) the balance, if any, in the trust at such time.
4. Claims of Other Persons. The provisions of the Plan shall in no event be construed as giving any other person, firm or corporation any legal or equitable right as against any member of the Forest City Group or the officers, employees or directors of any member of the Forest City Group except any such rights as are specifically provided for in the Plan or are hereafter created in accordance with the terms and provisions of the Plan.
5. Severability. The invalidity and unenforceability of any particular provision of the Plan shall not affect any other provision hereof, and the Plan shall be construed in all respects as if such invalid or unenforceable provision were omitted.
6. Governing Law. Except to the extent preempted by federal law, the provisions of the Plan shall be governed and construed in accordance with the laws of the State of Delaware.
7. Relationship to Other Plans. The Plan is intended to serve the purposes of and to be consistent with any incentive compensation plan approved by the Committee for purposes of the Plan.
8. Headings; Interpretation.
(i) Headings in this Plan are inserted for convenience of reference only and are not to be considered in the construction of the provisions hereof
(ii) Any reference in this Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section 409A by the U.S. Department of Treasury or the Internal Revenue Service.
(iii) For purposes of the Plan, the phrase “permitted by Section 409A of the Code,” or words or phrases of similar import, shall mean that the event or circumstance that may occur or exist only if permitted by Section 409A of the Code would not cause an amount deferred or payable under the Plan to be includible in the gross income of a Participant or Beneficiary under Section 409A(a)(1) of the Code.
EXECUTED as of December 31, 2015.
FOREST CITY EMPLOYER, LLC
By:
David J. LaRue
President and Chief Executive Officer
FOREST CITY EMPLOYER, LLC
UNFUNDED NONQUALIFIED SUPPLEMENTAL
RETIREMENT PLAN FOR EXECUTIVES
PLAN STATEMENT
(EFFECTIVE AS OF DECEMBER 31, 2015)
PREAMBLE
Forest City Enterprises, Inc. established the Forest City Enterprises, Inc. Unfunded Nonqualified Supplemental Retirement Plan for Executives (as such Plan was amended and restated effective as of January 1, 2005 and as of January 1, 2008) as an unfunded, nonqualified supplemental retirement arrangement for a select group of management or highly compensated employees. The Plan consists of this Plan Statement, which incorporates the general provisions and guidelines of the Plan which shall apply equally to all Participants (as defined below), and separate individual Agreements (as defined below), the provisions of which will apply solely to the Participant with respect to whom the Agreement has been entered into.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
Except to the extent preempted by federal law, all rights hereunder shall be governed by and construed in accordance with the laws of the State of Delaware.
ARTICLE I
Definitions
The following words and phrases as used herein shall have the following meanings unless a different meaning is plainly required by the context:
1.1 “Agreement” shall mean the written agreement between a Participant and an Employer that is entered into upon the Participant’s commencement of participation in the Plan and any subsequent written agreement between the Participant and the Employer and which specifies (i) the Normal Retirement Benefit to which such Participant shall be entitled under the Plan and (ii) such other special provisions as are applicable to the Participant. In the event of any conflict or inconsistency between this Plan Statement and an Agreement, the terms of the Agreement shall control; provided, however, that, effective as of the Effective Time for purposes of the Plan, each reference to Forest City Enterprises, Inc. or its predecessors in any such Agreement shall be deemed to be a reference to the Company, and each reference to the Board of Directors or the Compensation Committee of Forest City Enterprises, Inc. or its predecessors in any such Agreement shall be deemed to be a reference to the Board of Directors or the Compensation Committee of Forest City REIT, as applicable, in each case except where the context clearly dictates otherwise.
1.2 “Beneficiary” shall mean such person or persons as a Participant may from time to time, by notice to the Committee on a form made available by the Committee for such purpose, designate
to receive any benefit payable in the event of his death, and means the estate of the Participant if no valid beneficiary designation is in effect at the time of a Participant’s death. For purposes of clarity, any Beneficiary designation on file with Forest City Enterprises, Inc. immediately prior to the Effective Time shall remain in effect until changed or superseded in accordance with the Plan.
1.3 “Board” shall mean the Board of Directors of Forest City REIT.
1.4 “Code” shall mean the Internal Revenue Code of 1986, as amended.
1.5 “Committee” shall mean the committee appointed by the Board to administer the plan.
1.6 “Compensation” shall mean the basic cash remuneration payable to a Participant which was attributable to his employment with an Employer during a calendar year, excluding bonuses, overtime, and incentive pay and annual Employer contributions to the Employer’s 401(k) Plan.
1.7 “Disability” shall mean (i) any medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least twelve months that renders the Participant unable to engage in any substantial gainful activity, (ii) any medically determinable physical or mental impairment that can be expected to result in death or that can be expected to last for a continuous period of at least twelve months that results in the Participant’s receipt of income replacement benefits for a period of not less than three months under an accident or health plan covering employees of an Employer, or (iii) the determination by the Social Security Administration that the Participant is totally disabled.
1.8 “Effective Time” shall mean 11:59 p.m. on December 31, 2015.
1.9 “Employer” shall mean the Company or any other member of the Forest City Group that has adopted the Plan (including Forest City Enterprises, Inc. and its successors).
1.10 “Forest City Group” shall mean Forest City REIT and its Subsidiaries.
1.11 “Forest City REIT” shall mean Forest City Realty Trust, Inc. and its successors, including, without limitation, the surviving entity resulting from any merger or consolidation of Forest City REIT with any other entity.
1.12 “Key Employee” shall mean a “specified employee” with respect to Forest City REIT (or a controlled group member) determined pursuant to procedures implemented by the Forest City Group in compliance with Section 409A of the Code.
1.13 “Moody’s Rate” shall mean, for each calendar quarter, the interest rate that is the sum of (i) the average of the Moody’s long-term corporate bond yields for A, Aa, and Aaa bonds first published for such quarter plus (ii) .50.
1.14 “Normal Retirement Benefit” shall mean the amount specified by the Employer in a Participant’s Agreement from time to time.
1.15 “Normal Retirement Date” shall mean, solely for purposes of this Plan, the first day of the month next following the later of the date of (i) a Participant’s attainment of age 60 or (ii) a Participant’s Termination of Employment.
1.16 “Participant” shall mean an employee of an Employer serving in an executive or other managerial capacity who is selected by the Committee to participate in the Plan, and with whom an Employer has entered into an Agreement.
1.17 “Plan” shall mean this Forest City Employer, LLC Unfunded Nonqualified Supplemental Retirement Plan for Executives, consisting of this Plan Statement and separate, individual Agreements with Plan Participants and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Unfunded Nonqualified Supplemental Retirement Plan for Executives.
1.18 “Service” shall mean the aggregate period of a Participant’s employment with one or more members of the Forest City Group (and their respective predecessors) since his original date of hire, as determined by the Committee in accordance with uniform rules, treating persons similarly situated in a similar manner. For purposes of the Plan, a Participant’s Service will not be considered to have terminated as a result of a transfer of employment among members of the Forest City Group.
1.19 “Subsidiary” shall mean any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
1.20 “Termination of Employment” shall mean a termination of employment that constitutes a separation from service within the meaning of Treasury Regulation Section 1.409A-1(h)(1)(ii).
1.21 The masculine pronoun wherever used shall include the feminine pronoun, and the singular shall include the plural.
ARTICLE II
Eligibility for Benefits
2.1 Vesting
If a Participant’s employment with the Forest City Group terminates prior to the Participant’s completion of 10 years of Service, no retirement benefit shall be payable from this Plan. Subject to Section 2.5, if a Participant’s employment with the Forest City Group terminates on or after the Participant’s completion of 10 years of Service, he shall be vested in and entitled to a percentage of his Normal Retirement Benefit in accordance with the following schedule:
|
| |
Years of Service | Vested Percentage |
10 years but less than 11 years | 50% |
11 years but less than 12 years | 60% |
12 years but less than 13 years | 70% |
13 years but less than 14 years | 80% |
14 years but less than 15 years | 90% |
15 or more years | 100% |
2.2 Normal Retirement Benefit
A Participant who incurs a Termination of Employment with a vested interest in his Normal Retirement Benefit shall be entitled to receive such vested amount of his Normal Retirement Benefit. Payment of the vested Normal Retirement Benefit shall be made in equal biweekly installments over a period of 120 months, with the first biweekly payment being made on the first paydate following the Participant’s Normal Retirement Date. The amount of each biweekly installment payment shall be determined by the Committee so that the installment payments have a present value (taking into account the amount of a Participant’s vested Normal Retirement Benefit at the time such payments commence and interest, at the Moody’s Rate, that would be earned on the amount of such vested Normal Retirement Benefit during the payment period) equivalent to the value of the Participant’s vested Normal Retirement Benefit at the time such payments begin. The interest rate used for purposes of determining the installment payment amount in the prior sentence shall be the average of the Moody’s Rates for the four calendar quarters that precede the calendar quarter in which the installment payments commence. Notwithstanding the foregoing, if the Participant is a Key Employee, payment on account of Termination of Employment shall commence on the first paydate of the seventh month following such Termination of Employment (or the date of death, if earlier) and the total amount of biweekly installment payments to which such Key Employee would otherwise be entitled during the six-month period following the date of such Termination of Employment shall also be paid on the first paydate of the seventh month following such Termination of Employment.
2.3 Disability
Notwithstanding Section 2.2, a Participant with a vested interest in his Normal Retirement Benefit who incurs a Disability shall be entitled to receive such vested amount of his Normal Retirement Benefit. Payment of the vested Normal Retirement Benefit shall be made in equal biweekly installments over a period of 120 months, calculated in accordance with the method specified in Section 2.2, with the first biweekly payment being made on the first paydate of the month following the incurrence of such Disability.
2.4 Death
Notwithstanding Sections 2.2 and 2.3, in the event of the death of a Participant the Participant’s remaining vested Normal Retirement Benefit shall be paid to his Beneficiary in the form of a single, lump sum payment on the first day of the month following the date of the Participant’s death.
2.5 Forfeiture of Benefit
Notwithstanding the foregoing, in the event that the Committee determines that a Participant’s willful or intentional conduct results in material financial detriment to the Company or any other member of the Forest City Group, with a financial gain to the Participant, or the Participant is convicted of a felony or of a misdemeanor involving fraud, dishonesty or moral turpitude, that Participant (and his Beneficiary, if any) shall forfeit a portion of any Normal Retirement Benefit otherwise payable from this Plan. The amount of a Participant’s forfeited Normal Retirement Benefit shall be equal to the amount of financial detriment incurred by the Forest City Group as a result of the Participant’s conduct. This Section 2.5 only applies to benefits accrued under the Plan on or after January 1, 1999.
2.6 Small Payments
Notwithstanding the foregoing, if at the time of a Participant’s Termination of Employment, or if earlier, the Participant’s Disability, the Participant has a vested interest in his Normal Retirement Benefit that does not exceed the applicable dollar amount then in effect under Section 402(g)(1)(B) of the Code, such vested amount of the Normal Retirement Benefit shall be automatically paid to such Participant in a single, lump sum payment on the first paydate following the date of such Termination of Employment or Disability, provided, however, that if the Participant is a Key Employee, payment on account of Termination of Employment shall occur on the first paydate of the seventh month following such Termination of Employment (or, if earlier, the date of death).
ARTICLE III
Administration
3.1 Subject to the provisions of the Plan, full power and authority to construe, interpret and administer the Plan shall be vested in the Committee as from time to time constituted by the Board.
3.2 Decisions and determinations by the Committee shall be final and binding upon all parties, including the Company, shareholders, employees and Participants and their Beneficiaries and personal representatives. The Committee shall have the authority to interpret the Plan, to establish and revise rules and regulations relating to the Plan, and to make any other determinations that it believes necessary or advisable for the administration of the Plan.
3.3 No member of the Committee shall be liable for any act done or determination made in good faith.
3.4 It is intended that the Plan comply with the provisions of Section 409A of the Code, so as to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year that is prior to the taxable year or years in which such amounts would otherwise actually be distributed or made available to Participants or Beneficiaries. The Plan shall be administered in a manner that effects such intent.
ARTICLE IV
Funding
4.1 Nothing in this Plan shall be interpreted or construed to require the Company (or any other member of the Forest City Group) in any manner to fund its obligations to Participants hereunder.
4.2 In the event that any member of the Forest City Group shall decide to establish an advance accrual reserve on its books against the future expense of this Plan, such reserve shall not under any circumstances be deemed to be an asset of this Plan nor a source of payment of any claims under this Plan but, at all times, shall remain a part of the general assets of the Company (or other member of the Forest City Group), subject to the claims of creditors of the Company (or other member of the Forest City Group).
4.3 A person entitled to a benefit in accordance to the provisions of this Plan shall have a claim upon the Company only to the extent of the biweekly payments thereof, if any, due up to and including the then current months and shall not have a claim upon the Company for any subsequent biweekly payment unless and until such payment shall become due and payable.
ARTICLE V
Amendment and Termination
The Company reserves the right to amend or terminate the Plan at any time and if the amendment or termination impacts an officer of Forest City REIT who is subject to the provisions of Section 16 of the Securities Exchange Act of 1934, as amended, then the action must also be authorized by the Board or the Compensation Committee of the Board.
EXECUTED as of December 31, 2015.
FOREST CITY EMPLOYER, LLC
By:
David J. LaRue
President and Chief Executive Officer
FOREST CITY EMPLOYER, LLC
EXECUTIVE SHORT-TERM INCENTIVE PLAN
(Effective as of December 31, 2015)
PREAMBLE
Forest City Enterprises, Inc. established the Forest City Enterprises, Inc. Executive Short-Term Incentive Plan to advance the interests of Forest City Enterprises, Inc. and its shareholders and assist it in attracting and retaining key employees by providing short-term cash incentives and financial rewards to such key employees that are intended to be deductible to the maximum extent possible as “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code. The Plan, as amended and restated as of March 14, 2013, was approved by the shareholders of Forest City Enterprises, Inc. on June 13, 2013.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
ARTICLE I
DEFINITIONS
1.1 Award means an annual cash award of incentive compensation pursuant to the Plan.
1.2 Board means the Board of Directors of Forest City REIT.
1.3 Code means the Internal Revenue Code of 1986, as amended.
1.4 Committee means the Compensation Committee of the Board, or their designee consisting of members appointed from time to time by the Board, and shall comprise not less than such number of directors as shall be required to permit the Plan to satisfy the requirements of Code Section 162(m). The Committee administering the Plan shall be composed solely of “outside directors” within the meaning of Code Section 162(m).
1.5 Disability means a total and permanent disability that causes a Participant to be eligible to receive long term disability benefits from the Company’s Long Term Disability Plan, or any similar plan or program sponsored by an affiliate of the Company.
1.6 Effective Time means 11:59 p.m. on December 31, 2015.
1.7 Forest City Group means Forest City REIT and its Subsidiaries (including the Company).
1.8 Forest City REIT means Forest City Realty Trust, Inc. or its successors.
1.9 Key Employees means Board-appointed officers of Forest City REIT who are designated by the Board as “Section 16 officers” and other key employees of the Forest City Group.
1.10 Participant means a Key Employee who is selected by the Committee to participate in the Plan.
1.11 Payout Formula means the objective formula established by the Committee for determining Awards for a Performance Period based on the level of achievement of the Performance Objectives for the Performance Period.
1.12 Performance Objectives means the measurable performance objective or objectives established pursuant to the Plan for Participants, which may be described in terms of Forest City REIT-wide objectives or objectives that are related to the performance of the individual Participant or of the Subsidiary, division, department, region or function within the Forest City Group in which the Participant is employed, and may be made relative to the performance of other companies. The Performance Objectives shall be based on specified levels of or growth in or relative to peer company performance in one or more of the following criteria: assets (e.g., net asset value); capital (e.g., working capital); cash flow (e.g., earnings before depreciation, amortization and deferred taxes (“EBDT”), operating cash flow, total cash flow, cash flow in excess of cost of capital, residual cash flow, cash flow return on investment or funds from operations (“FFO”)); liquidity measures (e.g., available cash and credit, total debt ratio, debt-to-EBDT ratio or net operating income-to-debt ratio); margins (e.g., profits divided by revenues, operating margins, gross margins or material margins divided by revenues); productivity (e.g., productivity improvement); profits (e.g., net income, operating income, earnings before taxes (“EBT”), earnings before interest and taxes (“EBIT”), EBDT, FFO, residual or economic earnings, earnings or EBDT per share - these profitability criteria could be measured subject to GAAP definitions); sales or expenses (e.g., revenue growth, reduction in expenses, sales and administrative costs divided by sales or sales and administrative costs divided by profits); and stock price (e.g., stock price appreciation or total shareholder return). In addition to the returns and ratios mentioned above, the performance objectives may be based on any other ratios or returns using the criteria mentioned above, including: economic value added; net asset ratio; debt-to-capital ratio; working capital divided by sales; and profits or cash flow returns on assets, designated assets, invested capital, net capital employed or equity (including return on net assets, return on capital or invested capital, or total return, meaning change in net asset value plus or minus net cash flow). If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Forest City Group (or one or more of its members), or the manner in which it conducts its business, or other events or circumstances render the Performance Objectives unsuitable, the Committee may in its discretion modify such Performance Objectives or the related minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable, except if such action would result in the loss of the otherwise available exemption under Code Section 162(m). In such case, the Committee shall not make any modification of the Performance Objectives or minimum acceptable level of achievement.
1.13 Performance Period means a period of time established by the Committee, in its sole discretion, within which the Performance Objectives relating to an Award are to be achieved. The Committee may establish different Performance Periods for different Participants, and the Committee may establish concurrent or overlapping Performance Periods.
1.14 Plan means this Forest City Employer, LLC Executive Short-Term Incentive Plan and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Executive Short-Term Incentive Plan.
1.15 Retirement means termination of employment with the Forest City Group when a Participant is age 65 or older with five or more years of continuous service with the Forest City Group (including service with Forest City Enterprises, Inc. and its subsidiaries prior to the Effective Time).
1.16 Subsidiary means any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility and Participation. The Committee shall select Key Employees of the Forest City Group who are eligible to receive Awards under the Plan, and who shall be Participants in the Plan during any Performance Period in which they may earn an Award. A Key Employee who is a Participant for a given Performance Period is neither guaranteed nor assured of being selected for participation in any subsequent Performance Period.
ARTICLE III
TERMS OF AWARDS
3.1 Awards. Within 90 days after the commencement of each Performance Period or, if earlier, by the expiration of 25% of a Performance Period, the Committee will (a) designate one or more Performance Periods, (b) select the Participants for the Performance Periods, (c) establish the Performance Objectives for each Participant, and the relative weighting of each Performance Objective, and (d) determine the Payout Formula for each Participant. The Performance Objectives, the weighting of the Performance Objectives and the Payout Formulas need not be uniform with respect to any or all Participants. Participants must achieve the Performance Objectives established by the Committee in order to receive an Award under the Plan. However, when establishing the Payout Formula, the Committee may determine, within the time period set forth above, that only the threshold level relating to a Performance Objective must be achieved for Awards to be paid under the Plan. Similarly, the Committee may establish a minimum threshold performance level, a maximum performance level, and one or more intermediate performance levels or ranges, with target award levels or ranges that will correspond to the respective performance levels or ranges included in the Payout Formula. Notwithstanding the foregoing, the maximum aggregate amount payable pursuant to any Awards established for a Participant in any one calendar year will be $2,000,000.
3.2 Discretionary Adjustment. The Committee may not increase the amount payable under the Plan or with respect to an Award pursuant to Section 3.1, but retains the authority to reduce the amount in its sole discretion based on individual performance or any other reason.
3.3 Certification. Following the close of each Performance Period and prior to payment of any amount to any Participant under the Plan, the Committee will certify in writing as to the attainment of the Performance Objectives and the amount of the Award.
3.4 Form of Payment. Each Award under the Plan shall be paid in cash or its equivalent.
3.5 Timing of Payment. Except as otherwise provided pursuant to Section 4.2(a), payment of Awards will be made following the end of the Performance Period and after determination of and certification of the Award, but in no event more than two and one half months after the later of (a) the end of the Performance Period or (b) the end of the calendar year in which the Performance Period ends, unless the Participant has submitted a valid election to defer receipt of the Award in accordance with the terms and conditions of a deferred compensation plan approved by the Committee.
ARTICLE IV
NEW HIRES, PROMOTIONS AND TERMINATIONS
4.1 New Participants During the Performance Period. Unless otherwise determined by the Committee and subject to Section 5.3 hereof, if an individual is newly hired or promoted during a calendar year into a position eligible for participation in the Plan, he or she shall be eligible for an Award under the Plan for the Performance Period, subject to adjustments under Section 3.2 hereof, and prorated for the portion of the Performance Period following the date of eligibility for the Plan.
4.2 Retirement, Disability or Death. Unless otherwise determined by the Committee, a Participant who terminates employment with the Company during a Performance Period, and after at least one-half of such Performance Period has elapsed, due to Retirement, Disability or death shall be eligible to receive an Award in accordance with this Section 4.2, subject to adjustments under Section 3.2 hereof, and pro-rated for the portion of the Performance Period prior to termination of employment.
(a) Disability or Death. Any pro-rated Award pursuant to this Section 4.2 on account of a Participant’s termination of employment due to Disability or death shall be determined based upon the target Award level and shall be paid within sixty (60) days following termination of employment. Awards payable in the event of death shall be paid to the Participant’s estate.
(b) Retirement. Any pro-rated Award pursuant to this Section 4.2 on account of a Participant’s termination of employment due to Retirement shall be determined based upon actual performance through the end of the applicable Performance Period (subject to adjustments under Section 3.2 hereof) and shall be paid at the same time that Awards are paid to other Participants for such Performance Period in accordance with Section 3.5 hereof.
4.3 Termination of Employment. If a Participant’s employment with the Company and its affiliates terminates during a Performance Period under any circumstances other than those set forth in Section 4.2 hereof, then, unless otherwise determined by the Committee, no Award shall be payable to such Participant with respect to such Performance Period.
ARTICLE V
MISCELLANEOUS
5.1 Withholding Taxes. The Company shall have the right to make payment of Awards net of any applicable federal, state and local taxes required to be withheld, or to require the Participant to pay such withholding taxes. If the Participant fails to make such tax payments as required, the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant or to take such other action as may be necessary to satisfy such withholding obligations.
5.2 Nontransferability. No Award may be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, including assignment pursuant to a domestic relations order, during the time in which the requirement of continued employment or attainment of performance objectives has not been achieved. Each Award shall be paid during the Participant’s lifetime only to the Participant, or, if permissible under applicable law, to the Participant’s legal representatives. No Award shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the debts, contracts, liabilities, or torts of the Participant.
5.3 Administration. The Committee shall administer the Plan, interpret the terms of the Plan, amend and rescind rules relating to the Plan, and determine the rights and obligations of Participants under the Plan. The Committee may delegate any of its authority as it solely determines. In administering the Plan, the Committee may at its option employ compensation consultants, accountants and counsel and other persons to assist or render advice to the Committee, all at the expense of the Company. All decisions of the Committee shall be final and binding upon all parties including the Company, its shareholders, and the Participants. The provisions of this Plan are intended to ensure that all Awards granted hereunder qualify for the exemption from the limitation on deductibility imposed by Code Section 162(m) that is set forth in Code Section 162(m)(4)(C), and this Plan shall be interpreted and operated consistent with that intention.
5.4 Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or the Award, such provision will be stricken as to such jurisdiction, and the remainder of the Plan or Award shall remain in full force and effect.
5.5 No Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other person. To the extent that any person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.
5.6 Clawback Policy. Notwithstanding any other provision of the Plan to the contrary, any Award granted hereunder shall be subject to forfeiture or repayment pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by Forest City REIT from time to time, as such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange.
5.7 Employment at Will. Neither the adoption of the Plan, eligibility of any person to participate, nor payment of an Award to a Participant shall be construed to confer upon any person a right to be continued in the employ of the Company. The Company expressly reserves the right to discharge any Participant whenever in the sole discretion of the Company its interest may so require.
5.8 Amendment or Termination of the Plan. The Company reserves the right, with the approval of the Board or the Committee, to amend or terminate the Plan at any time with respect to future Awards to Participants. Amendments to the Plan will require shareholder approval to the extent required to comply with applicable law, including the exemption under Code Section 162(m).
5.9 Non-Exclusivity of the Plan. Neither the adoption of the Plan by the Board nor any submission of the Plan to shareholders of Forest City Enterprises, Inc., the Company or Forest City REIT for approval shall be construed as creating any limitations on the power of the Company, the Board or the Committee to adopt such other incentive arrangements as any of them may deem desirable, including, without limitation, cash or equity-based compensation arrangements, either tied to performance or otherwise.
5.10 Successors. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.
FOREST CITY EMPLOYER, LLC
EXECUTIVE LONG-TERM INCENTIVE PLAN
(Effective as of December 31, 2015)
PREAMBLE
Forest City Enterprises, Inc. established the Forest City Enterprises, Inc. Executive Long-Term Incentive Plan to advance the interests of Forest City Enterprises, Inc. and its shareholders and assist it in attracting and retaining key employees by providing long-term cash incentives and financial rewards to such key employees that are intended to be deductible to the maximum extent possible as “performance-based compensation” within the meaning of Section 162(m) of the Internal Revenue Code. The Plan, as amended and restated as of March 14, 2013, was approved by the shareholders of Forest City Enterprises, Inc. on June 13, 2013.
Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc.(for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
ARTICLE I
DEFINITIONS
1.1 Award means an award of long-term cash incentive compensation pursuant to the Plan.
1.2 Board means the Board of Directors of Forest City REIT.
1.3 Code means the Internal Revenue Code of 1986, as amended.
1.4 Committee means the Compensation Committee of the Board, or their designee consisting of members appointed from time to time by the Board, and shall comprise not less than such number of directors as shall be required to permit the Plan to satisfy the requirements of Code Section 162(m). The Committee administering the Plan shall be composed solely of “outside directors” within the meaning of Code Section 162(m).
1.5 Disability means a total and permanent disability that causes a Participant to be eligible to receive long term disability benefits from the Company’s Long Term Disability Plan, or any similar plan or program sponsored by an affiliate of the Company.
1.6 Effective Time means 11:59 p.m. on December 31, 2015.
1.7 Forest City Group means Forest City REIT and its Subsidiaries (including the Company).
1.8 Forest City REIT means Forest City Realty Trust, Inc. or its successors.
1.9 Key Employees means Board-appointed officers of Forest City REIT who are designated by the Board as “Section 16 officers” and other key employees of the Forest City Group.
1.10 Participant means a Key Employee who is selected by the Committee to participate in the Plan.
1.11 Payout Formula means the objective formula established by the Committee for determining Awards for a Performance Period based on the level of achievement of the Performance Objectives for the Performance Period.
1.12 Performance Objectives means the measurable performance objective or objectives established pursuant to the Plan for Participants, which may be described in terms of Forest City REIT-wide objectives or objectives that are related to the performance of the individual Participant or of the Subsidiary, division, department, region or function within the Forest City Group in which the Participant is employed, and may be made relative to the performance of other companies. The Performance Objectives shall be based on specified levels of or growth in or relative to peer company performance in one or more of the following criteria: assets (e.g., net asset value); capital (e.g., working capital); cash flow (e.g., earnings before depreciation, amortization and deferred taxes (“EBDT”), operating cash flow, total cash flow, cash flow in excess of cost of capital, residual cash flow, cash flow return on investment or funds from operations (“FFO”)); liquidity measures (e.g., available cash and credit, total debt ratio, debt-to-EBDT ratio or net operating income-to-debt ratio); margins (e.g., profits divided by revenues, operating margins, gross margins or material margins divided by revenues); productivity (e.g., productivity improvement); profits (e.g., net income, operating income, earnings before taxes (“EBT”), earnings before interest and taxes (“EBIT”), EBDT, FFO, residual or economic earnings, earnings or EBDT per share - these profitability criteria could be measured subject to GAAP definitions); sales or expenses (e.g., revenue growth, reduction in expenses, sales and administrative costs divided by sales or sales and administrative costs divided by profits); and stock price (e.g., stock price appreciation or total shareholder return). In addition to the returns and ratios mentioned above, the performance objectives may be based on any other ratios or returns using the criteria mentioned above, including: economic value added; net asset ratio; debt-to-capital ratio; working capital divided by sales; and profits or cash flow returns on assets, designated assets, invested capital, net capital employed or equity (including return on net assets, return on capital or invested capital, or total return, meaning change in net asset value plus or minus net cash flow). If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Forest City Group (or one or more of its members), or the manner in which it conducts its business, or other events or circumstances render the Performance Objectives unsuitable, the Committee may in its discretion modify such Performance Objectives or the related minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable, except if such action would result in the loss of the otherwise available exemption under Code Section 162(m). In such case, the Committee shall not make any modification of the Performance Objectives or minimum acceptable level of achievement.
1.13 Performance Period means a period of time established by the Committee, in its sole discretion, within which the Performance Objectives relating to an Award are to be achieved. The Committee may establish different Performance Periods for different Participants, and the Committee may establish concurrent or overlapping Performance Periods.
1.14 Plan means this Forest City Employer, LLC Executive Long-Term Incentive Plan and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Executive Long-Term Incentive Plan.
1.15 Retirement means termination of employment with the Forest City Group when a Participant is age 65 or older with five or more years of continuous service with the Forest City Group (including service with Forest City Enterprises, Inc. and its subsidiaries prior to the Effective Time).
1.16 Subsidiary means any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility and Participation. The Committee shall select Key Employees of the Forest City Group who are eligible to receive Awards under the Plan, and who shall be Participants in the Plan during any Performance Period in which they may earn an Award. A Key Employee who is a Participant for a given Performance Period is neither guaranteed nor assured of being selected for participation in any subsequent Performance Period.
ARTICLE III
TERMS OF AWARDS
3.1 Awards. Within 90 days after the commencement of each Performance Period or, if earlier, by the expiration of 25% of a Performance Period, the Committee will (a) designate one or more Performance Periods, (b) select the Participants for the Performance Periods, (c) establish the Performance Objectives for each Participant, and the relative weighting of each Performance Objective, and (d) determine the Payout Formula for each Participant. The Performance Objectives, the weighting of the Performance Objectives and the Payout Formulas need not be uniform with respect to any or all Participants. Participants must achieve the Performance Objectives established by the Committee in order to receive an Award under the Plan. However, when establishing the Payout Formula, the Committee may determine, within the time period set forth above, that only the threshold level relating to a Performance Objective must be achieved for Awards to be paid under the Plan. Similarly, the Committee may establish a minimum threshold performance level, a maximum performance level, and one or more intermediate performance levels or ranges, with target award levels or ranges that will correspond to the respective performance levels or ranges included in the Payout Formula. Notwithstanding the foregoing, the maximum aggregate amount payable pursuant to any Awards established for a Participant in any one calendar year will be $3,000,000.
3.2 Discretionary Adjustment. The Committee may not increase the amount payable under the Plan or with respect to an Award pursuant to Section 3.1, but retains the authority to reduce the amount in its sole discretion based on individual performance or any other reason.
3.3 Certification. Following the close of each Performance Period and prior to payment of any amount to any Participant under the Plan, the Committee will certify in writing as to the attainment of the Performance Objectives and the amount of the Award.
3.4 Form of Payment. Each Award under the Plan shall be paid in cash or its equivalent.
3.5 Timing of Payment. Except as otherwise provided pursuant to Section 4.2(a), payment of Awards will be made following the end of the Performance Period and after determination of and certification of the Award, but in no event more than two and one half months after the later of (a) the end of the Performance Period or (b) the end of the calendar year in which the Performance Period ends.
ARTICLE IV
NEW HIRES, PROMOTIONS AND TERMINATIONS
4.1 New Participants During the Performance Period. Unless otherwise determined by the Committee and subject to Section 5.3 hereof, if an individual is newly hired or promoted during a calendar year into a position eligible for participation in the Plan, he or she shall be eligible for an Award under the Plan for the Performance Period, subject to adjustments under Section 3.2 hereof, and prorated for the portion of the Performance Period following the date of eligibility for the Plan.
4.2 Retirement, Disability or Death. Unless otherwise determined by the Committee, a Participant who terminates employment with the Company during a Performance Period and at least one year after the beginning of such Performance Period due to Retirement, Disability or death shall be eligible to receive an Award in accordance with this Section 4.2, subject to adjustments under Section 3.2 hereof, and pro-rated for the portion of the Performance Period prior to termination of employment.
(a) Disability or Death. Any pro-rated Award pursuant to this Section 4.2 on account of a Participant’s termination of employment due to Disability or death shall be determined based upon the target Award level and shall be paid within sixty (60) days following termination of employment. Awards payable in the event of death shall be paid to the Participant’s estate.
(b) Retirement. Any pro-rated Award pursuant to this Section 4.2 on account of a Participant’s termination of employment due to Retirement shall be determined based upon actual performance through the end of the applicable Performance Period (subject to adjustments under Section 3.2 hereof) and shall be paid at the same time that Awards are paid to other Participants for such Performance Period in accordance with Section 3.5 hereof.
4.3 Termination of Employment. If a Participant’s employment with the Company and its affiliates terminates during a Performance Period under any circumstances other than those set
forth in Section 4.2 hereof, then, unless otherwise determined by the Committee, no Award shall be payable to such Participant with respect to such Performance Period.
ARTICLE V
MISCELLANEOUS
5.1 Withholding Taxes. The Company shall have the right to make payment of Awards net of any applicable federal, state and local taxes required to be withheld, or to require the Participant to pay such withholding taxes. If the Participant fails to make such tax payments as required, the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant or to take such other action as may be necessary to satisfy such withholding obligations.
5.2 Nontransferability. No Award may be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, including assignment pursuant to a domestic relations order, during the time in which the requirement of continued employment or attainment of performance objectives has not been achieved. Each Award shall be paid during the Participant’s lifetime only to the Participant, or, if permissible under applicable law, to the Participant’s legal representatives. No Award shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the debts, contracts, liabilities, or torts of the Participant.
5.3 Administration. The Committee shall administer the Plan, interpret the terms of the Plan, amend and rescind rules relating to the Plan, and determine the rights and obligations of Participants under the Plan. The Committee may delegate any of its authority as it solely determines. In administering the Plan, the Committee may at its option employ compensation consultants, accountants and counsel and other persons to assist or render advice to the Committee, all at the expense of the Company. All decisions of the Committee shall be final and binding upon all parties including the Company, its shareholders, and the Participants. The provisions of this Plan are intended to ensure that all Awards granted hereunder qualify for the exemption from the limitation on deductibility imposed by Code Section 162(m) that is set forth in Code Section 162(m)(4)(C), and this Plan shall be interpreted and operated consistent with that intention.
5.4 Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or the Award, such provision will be stricken as to such jurisdiction, and the remainder of the Plan or Award shall remain in full force and effect.
5.5 No Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other person. To the extent that any person acquires a right to receive payments from the Company pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.
5.6 Clawback Policy. Notwithstanding any other provision of the Plan to the contrary, any Award granted hereunder shall be subject to forfeiture or repayment pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by Forest City REIT from time to time, as such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange.
5.7 Employment at Will. Neither the adoption of the Plan, eligibility of any person to participate, nor payment of an Award to a Participant shall be construed to confer upon any person a right to be continued in the employ of the Company. The Company expressly reserves the right to discharge any Participant whenever in the sole discretion of the Company its interest may so require.
5.8 Amendment or Termination of the Plan. The Company reserves the right, with the approval of the Board or the Committee, to amend or terminate the Plan at any time with respect to future Awards to Participants. Amendments to the Plan will require shareholder approval to the extent required to comply with applicable law, including the exemption under Code Section 162(m).
5.9 Non-Exclusivity of the Plan. Neither the adoption of the Plan by the Board nor any submission of the Plan to shareholders of Forest City Enterprises, Inc., the Company or Forest City REIT for approval shall be construed as creating any limitations on the power of the Company, the Board or the Committee to adopt such other incentive arrangements as any of them may deem desirable, including, without limitation, cash or equity-based compensation arrangements, either tied to performance or otherwise.
5.10 Successors. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.
FOREST CITY EMPLOYER, LLC
SENIOR MANAGEMENT SHORT-TERM INCENTIVE PLAN
(Effective as of December 31, 2015)
1. Purpose. Forest City Enterprises, Inc. established the Forest City Enterprises, Inc. Senior Management Short-Term Incentive Plan to align employee and shareholder interests by providing cash incentives to eligible senior or other select management employees of Forest City Enterprises, Inc. for meeting and exceeding corporate, business unit and individual objectives defined each fiscal year. Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
2. Definitions. The following capitalized words as used in this Plan shall have the following meanings:
a. “Affiliate” means any corporation or other entity (including, but not limited to, partnerships, limited liability companies and joint ventures) controlled by, controlling, or under common control with, the Company.
b. “Award Opportunity” means a cash award opportunity established under the Plan for a Participant by the Committee pursuant to such terms, conditions, restrictions and/or limitations, if any, as the Committee may establish.
c. “Board” means the Board of Directors of Forest City REIT.
d. “CEO” means the Chief Executive Officer of Forest City REIT.
e. “Code” means the Internal Revenue Code of 1986, as amended.
f. “Committee” means the Compensation Committee of the Board.
g. “Disability” means a total and permanent disability that causes a Participant to be eligible to receive long term disability benefits from the Company’s Long Term Disability Plan, or any similar plan or program sponsored by an Affiliate or branch of the Company.
h. “Effective Time” means 11:59 p.m. on December 31, 2015.
i. “Employee” means any person employed by the Company or Affiliate in a senior or other select management capacity, whether such Employee is so employed at the time the Plan is adopted or becomes so employed subsequent to the adoption of the Plan.
j. Forest City Group means Forest City REIT and its Subsidiaries (including the Company).
k. Forest City REIT means Forest City Realty Trust, Inc. or its successors.
l. “Participant” means, as to any Performance Period, any Employee who is selected by the Committee to be eligible to participate in the Plan for that Performance Period, as provided herein.
m. “Payout Formula” means the formula established by the Committee for determining Award Opportunities for a Performance Period based on the level of achievement of the Performance Objectives for the Performance Period.
n. “Performance Objectives” means the measurable or subjective performance objective or objectives established pursuant to this Plan for Participants who have received Award Opportunities. Performance Objectives may be described in terms of Forest City REIT-wide objectives or objectives that are related to the performance of the individual Participant or of an Affiliate, division, business unit, department, region or function within the Forest City Group in which the Participant is employed and may be based on the following criteria: assets (e.g., net asset value); capital (e.g., working capital); cash flow (e.g., earnings before depreciation, amortization and deferred taxes (“EBDT”), operating cash flow, total cash flow, cash flow in excess of cost of capital, residual cash flow, cash flow return on investment or funds from operations (“FFO”)); liquidity measures (e.g., available cash and credit, total debt ratio, debt-to-EBDT ratio or net operating income-to-debt ratio); margins (e.g., profits divided by revenues, operating margins, gross margins or material margins divided by revenues); productivity (e.g., productivity improvement); profits (e.g., net income, operating income, earnings before taxes (“EBT”), earnings before interest and taxes (“EBIT”), EBDT, FFO, residual or economic earnings, earnings or EBDT per share — these profitability criteria could be measured subject to GAAP definitions); sales or expenses (e.g., revenue growth, reduction in expenses, sales and administrative costs divided by sales or sales and administrative costs divided by profits); and stock price (e.g., stock price appreciation or total shareholder return) and/or strategic business criteria related to a Participant’s area or areas of responsibility. In addition to the returns and ratios mentioned above, the performance objectives may be based on any other ratios or returns using the criteria mentioned above, including: economic value added; net asset ratio; debt-to-capital ratio; working capital divided by sales; and profits or cash flow returns on assets, designated assets, invested capital, net capital employed or equity (including return on net assets, return on capital or invested capital, or total return, meaning change in net asset value plus or minus net cash flow). The Performance Objectives may be made relative to the performance of other corporations or other entities.
o. “Performance Period” means the Company’s fiscal year or such other period as determined by the Committee in its discretion, within which the Performance Objectives relating to an Award Opportunity are to be achieved. The Committee may establish different Performance Periods for different Participants, and the Committee may establish concurrent or overlapping Performance Periods.
p. “Plan” means this Forest City Employer, LLC Senior Management Short-Term Incentive Plan, as amended from time to time, and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Senior Management Short-Term Incentive Plan.
q. “Retirement” means termination of employment with Forest City Group at age 65 or older and after five or more years of continuous employment with the Forest City Group (including employment with Forest City Enterprises, Inc. and its subsidiaries prior to the Effective Time). Approved absence or leave from the Company or an Affiliate shall not be considered an interruption of employment for purposes of the Plan.
r. “Subsidiary” means any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
s. “SVP-HR” means the Senior Vice President, Human Resources of Forest City REIT.
3. Administration. The Committee shall be responsible for administration of the Plan. The Committee, by majority action, is authorized to interpret the Plan, to prescribe, amend, and rescind regulations relating to the Plan, to provide for conditions and assurances deemed necessary or advisable to protect the interests of the Company and its Affiliates, and to make all other determinations necessary or advisable for the administration of the Plan, but only to the extent not contrary to the express provisions of the Plan. Determinations, interpretations, or other actions made or taken by the Committee pursuant to the provisions of the Plan shall be final, binding and conclusive for all purposes and upon all Participants. No member of the Committee shall be liable for any such action or determination made in good faith. The Committee may delegate to the CEO, the SVP-HR or other senior officers or senior managers of the Company or Forest City REIT, subject to such terms as the Committee shall determine, authority to administer all or any portion of the Plan, or the authority to perform certain functions, including administrative functions. In the event of such delegation, all references to the Committee in this Plan (other than such references in the immediately preceding sentence and in the last sentence of this Section 3) shall be deemed references to such senior officers or senior managers as it relates to those aspects of the Plan that have been delegated. In this regard, the Committee specifically authorizes each senior officer and senior manager to establish the individual Performance Objectives for his or her direct reports who participate in the Plan and determine whether and to what extent the individual Performance Objectives for those direct reports have been achieved. Notwithstanding the foregoing, and to the extent required by the Committee charter or the applicable exchange listing standards, the Committee shall retain exclusive authority to establish Award Opportunities and determine payouts for any Board-appointed officers of Forest City REIT who are designated by the Board as “Section 16 officers”.
4. Eligibility. The Committee, in its sole discretion, shall determine which Employees will be eligible to participate in the Plan for any given Performance Period. In lieu of expressly selecting eligible Employees for Plan participation, the Committee may establish eligibility criteria providing for participation of all Employees who satisfy such criteria. When making eligibility determinations, the Committee shall consider the recommendations of the CEO and the SVP-HR;
provided that the CEO shall make all recommendations with respect to the participation of the SVP-HR. An Employee who is a Participant for a given Performance Period is neither guaranteed nor assured of being selected for participation in any subsequent Performance Period.
5. Award Opportunities.
a. After the beginning of each Performance Period, the Committee shall establish the Award Opportunity for each Participant, including the applicable Performance Objectives and Payout Formula. Each Performance Objective will be weighted by the Committee to reflect its relative importance to the Forest City Group in the applicable Performance Period. The Payout Formulas, Performance Objectives and weighting of the Performance Objectives need not be uniform with respect to any or all Participants. The Committee shall consider the recommendations of the CEO and the SVP-HR in determining the applicable Payout Formulas, Performance Objectives and weighting of the Performance Objectives; provided that the CEO shall make all recommendations with respect to the SVP-HR. The Committee may also establish Award Opportunities for newly hired or newly promoted Employees without compliance with the limitations provided herein, which Award Opportunities may be based on performance during less than the full Performance Period and may be pro-rated at the discretion of the Committee.
b. Participants must achieve the Performance Objectives established by the Committee in order to receive payment of an Award Opportunity under the Plan. However, the Committee may determine that only a threshold level relating to a Performance Objective must be achieved for Award Opportunities to be paid under the Plan. Similarly, the Committee may establish a minimum threshold performance level, a maximum performance level, and one or more intermediate performance levels or ranges, with target award levels or ranges that will correspond to the respective performance levels or ranges included in the Payout Formula.
c. The Committee may in its sole discretion modify the Payout Formulas, Performance Objectives or the related minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable (i) to reflect a change in the business, operations, corporate structure or capital structure of the Forest City Group (or one or more of its members), the manner in which it conducts its business, or other events or circumstances or (ii) in the event that a Participant’s responsibilities materially change during a Performance Period or the Participant is transferred to a position that is not designated as eligible to participate in the Plan.
6. Determination of Award Opportunities.
a. Following the end of each Performance Period, the Committee shall determine whether and to what extent the Performance Objectives with respect to each Participant for the applicable Performance Period have been achieved and, if such Performance Objectives have been achieved, to approve actual payment of each Award Opportunity under the Plan pursuant to the applicable Payout Formulas. The Committee shall consider the recommendations of the CEO and the SVP-HR when determining whether the Performance Objectives have been achieved with respect to Participants; provided that the CEO shall make all recommendations with respect to the SVP-HR. The Committee may, in its sole discretion, increase, decrease or eliminate the amount of any Award Opportunity otherwise payable to any Participant to reflect such Participant’s individual
performance or such other factors as the Committee deems relevant, in recognition of changed or special circumstances, or for any other reason. Except as otherwise provided in Section 6(b) or as otherwise determined by the Committee, in the event a Participant’s employment with the Forest City Group terminates for any reason prior to the last day of the Performance Period, the Participant shall not be entitled to payment of an Award Opportunity with respect to that Performance Period.
b. Unless otherwise determined by the Committee, a Participant who terminates employment with the Forest City Group during a Performance Period, and after at least one-half of such Performance Period has elapsed, due to Retirement, Disability or death shall be eligible to receive payment of an Award Opportunity in accordance with this Section 6(b), subject to adjustments under Section 6(a), and pro-rated for the portion of the Performance Period prior to termination of employment.
i. Any pro-rated Award Opportunity pursuant to this Section 6(b) on account of a Participant’s termination of employment due to Disability or death shall be determined based upon the target Award Opportunity level and shall be paid within sixty (60) days following termination of employment. An Award Opportunity payable in the event of death shall be paid to the Participant’s estate.
ii. Any pro-rated Award Opportunity pursuant to this Section 6(b) on account of a Participant’s termination of employment due to Retirement shall be determined based upon actual performance through the end of the applicable Performance Period (subject to adjustments under Section 6(a)) and shall be paid at the same time that Award Opportunities are paid to other Participants for such Performance Period in accordance with Section 7 hereof.
7. Payment of Award Opportunities. Except as otherwise provided in Section 6(b)(i) or this Section 7, if earned as set forth in Section 6, an Award Opportunity of a Participant for a particular Performance Period shall be paid in cash after the end of the Performance Period, but, in no event more than two and one half months after the later of (a) the end of the Performance Period or (b) the end of the calendar year in which such Performance Period ends. Notwithstanding the foregoing, a Participant may elect to defer receipt of payment of an Award Opportunity in accordance with the terms and subject to the conditions of the Company’s deferred compensation plan.
8. Tax Withholding. The Company and its Affiliates shall have the right to deduct from all payments made to any person under the Plan any federal, state, local, foreign or other taxes which, in the opinion of the Company and its Affiliates are required to be withheld with respect to such payments.
9. No Employment Contract. Nothing contained in this Plan shall confer upon a Participant any right with respect to continuance of employment by the Company and its Affiliates, nor limit or affect in any manner the right of the Company and its Affiliates to terminate the employment or adjust the compensation of a Participant. For purposes of the Plan, the transfer of employment of a Participant between the Company and any one of its Affiliates (or between Affiliates) shall not be deemed a termination of the Participant’s employment.
10. Transferability. No right or benefit under this Plan will be subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge such right or benefit will be void. No such right or benefit will in any manner be liable for or subject to the debts, liabilities, or torts of a Participant.
11. Clawback Policy. Notwithstanding any other provision of the Plan to the contrary, any Award Opportunity granted hereunder shall be subject to forfeiture or repayment pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by Forest City REIT from time to time, as any such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange.
12. Successors. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.
13. Governing Law. The Plan and all Award Opportunities shall be construed in accordance with and governed by the laws of the State of Delaware, but without regard to its conflict of law provisions.
14. Amendment or Termination. The Committee reserves the right, at any time, to amend, suspend or terminate the Plan, in whole or in part, in any manner, and for any reason, and without the consent of any Participant, Employee or other person. A proper amendment of this Plan automatically shall effect a corresponding amendment to all Participants’ rights hereunder without further action or notice. A proper termination of this Plan automatically shall effect a termination of all Participants’ rights hereunder without further action or notice.
15. Participation by Employees of Affiliates. Any Affiliate may, by action of its board of directors or equivalent governing body and with the consent of the Committee, adopt the Plan; provided that the Committee may waive the requirement that such board of directors or equivalent governing body effect such adoption. By its adoption of or participation in the Plan, the adopting Affiliate shall be deemed to appoint the Company its exclusive agent to exercise on its behalf all of the power and authority conferred by the Plan upon the Company and accept the delegation to the Committee of all the power and authority conferred upon it by the Plan. The authority of the Company to act as such agent shall continue until the Plan is terminated as to the participating Affiliate. An Award Opportunity of a Participant employed by a participating Affiliate shall be paid in accordance with the Plan solely by that Affiliate, unless the Committee otherwise determines that the Company shall be responsible for payment. Each Award Opportunity that may become payable under the Plan shall be paid solely from the general assets of the Company or the Affiliate responsible for payment thereof. Nothing in this Plan shall be construed to create a trust or to establish or evidence any Participant’s claim of any right to payment of an Award Opportunity other than as an unsecured general creditor with respect to any payment to which he or she may be entitled.
EXECUTED as of December 31, 2015.
FOREST CITY EMPLOYER, LLC
By:
David J. LaRue
President and Chief Executive Officer
FOREST CITY EMPLOYER, LLC
SENIOR MANAGEMENT LONG-TERM INCENTIVE PLAN
(Effective as of December 31, 2015)
1. Purpose. Forest City Enterprises, Inc. established the Forest City Enterprises, Inc. Senior Management Long-Term Incentive Plan to align employee and shareholder interests by providing cash incentives to eligible senior or other select management employees of Forest City Enterprises, Inc. for meeting and exceeding corporate and business unit objectives defined each performance period. Pursuant to the Assignment and Assumption Agreement by and between Forest City Enterprises, Inc. and Forest City Employer, LLC (the “Company”) dated as of December 31, 2015 (the “Assignment Agreement”), Forest City Enterprises, Inc. assigned to the Company sponsorship of the Plan and the Company assumed sponsorship of the Plan, amended and restated as set forth herein, effective as of the Effective Time (as defined below). Under the Assignment Agreement, Forest City Enterprises, Inc. (for itself and on behalf of its successors) has agreed to pay, perform, and discharge any and all obligations under the Plan that accrued prior to the Effective Time and the Company has agreed to pay, perform, and discharge any and all obligations under the Plan that accrue on or after the Effective Time.
2. Definitions. The following capitalized words as used in this Plan shall have the following meanings:
a. “Affiliate” means any corporation or other entity (including, but not limited to, partnerships, limited liability companies and joint ventures) controlled by, controlling, or under common control with, the Company.
b. “Award Opportunity” means a cash award opportunity established under the Plan for a Participant by the Committee pursuant to such terms, conditions, restrictions and/or limitations, if any, as the Committee may establish.
c. “Board” means the Board of Directors of Forest City REIT.
d. “CEO” means the Chief Executive Officer of Forest City REIT.
e. “Code” means the Internal Revenue Code of 1986, as amended.
f. “Committee” means the Compensation Committee of the Board.
g. “Disability” means a total and permanent disability that causes a Participant to be eligible to receive long term disability benefits from the Company’s Long Term Disability Plan, or any similar plan or program sponsored by an Affiliate or branch of the Company.
h. “Effective Time” means 11:59 p.m. on December 31, 2015.
i. “Employee” means any person employed by the Company or Affiliate in a senior or other select management capacity, whether such Employee is so employed at the time the Plan is adopted or becomes so employed subsequent to the adoption of the Plan.
j. Forest City Group means Forest City REIT and its Subsidiaries (including the Company).
k. Forest City REIT means Forest City Realty Trust, Inc. or its successors.
l. “Participant” means, as to any Performance Period, any Employee who is selected by the Committee to be eligible to participate in the Plan for that Performance Period, as provided herein.
m. “Payout Formula” means the formula established by the Committee for determining Award Opportunities for a Performance Period based on the level of achievement of the Performance Objectives for the Performance Period.
n. “Performance Objectives” means the measurable or subjective performance objective or objectives established pursuant to this Plan for Participants who have received Award Opportunities. Performance Objectives may be described in terms of Forest City REIT-wide objectives or objectives that are related to the performance of an Affiliate, division, business unit, department, region or function within the Forest City Group in which the Participant is employed and may be based on the following criteria: assets (e.g., net asset value); capital (e.g., working capital); cash flow (e.g., earnings before depreciation, amortization and deferred taxes (“EBDT”), operating cash flow, total cash flow, cash flow in excess of cost of capital, residual cash flow, cash flow return on investment or funds from operations (“FFO”); liquidity measures (e.g., available cash and credit, total debt ratio, debt-to-EBDT ratio or net operating income-to-debt ratio); margins (e.g., profits divided by revenues, operating margins, gross margins or material margins divided by revenues); productivity (e.g., productivity improvement); profits (e.g., net income, operating income, earnings before taxes (“EBT”), earnings before interest and taxes (“EBIT”), EBDT, FFO, residual or economic earnings, earnings or EBDT per share — these profitability criteria could be measured subject to GAAP definitions); sales or expenses (e.g., revenue growth, reduction in expenses, sales and administrative costs divided by sales or sales and administrative costs divided by profits); and stock price (e.g., stock price appreciation or total shareholder return). In addition to the returns and ratios mentioned above, the performance objectives may be based on any other ratios or returns using the criteria mentioned above, including: economic value added; net asset ratio; debt-to-capital ratio; working capital divided by sales; and profits or cash flow returns on assets, designated assets, invested capital, net capital employed or equity (including return on net assets, return on capital or invested capital, or total return, meaning change in net asset value plus or minus net cash flow). The Performance Objectives may be made relative to the performance of other corporations or other entities.
o. “Performance Period” means a period of four consecutive fiscal years of the Company, or such other period as determined by the Committee in its discretion, within which the Performance Objectives relating to an Award Opportunity are to be achieved. The Committee may establish different Performance Periods for different Participants, and the Committee may establish concurrent or overlapping Performance Periods.
p. “Plan” means this Forest City Employer, LLC Senior Management Long-Term Incentive Plan, as amended from time to time, and, for periods prior to the Effective Time, the Forest City Enterprises, Inc. Senior Management Long-Term Incentive Plan.
q. “Retirement” means termination of employment with the Forest City Group at age 65 or older and after five or more years of continuous employment with the Forest City Group (including employment with Forest City Enterprises, Inc. and its subsidiaries prior to the Effective Time) Approved absence or leave from the Company or an Affiliate shall not be considered an interruption of employment for purposes of the Plan.
r. “Subsidiary” means any corporation, joint venture, partnership, unincorporated association or other entity in which Forest City REIT has a direct or indirect ownership or other equity interest and directly or indirectly owns or controls 50 percent or more of the total combined voting or other decision-making power.
s. “SVP-HR” means the Senior Vice President, Human Resources of Forest City REIT.
3. Administration. The Committee shall be responsible for administration of the Plan. The Committee, by majority action, is authorized to interpret the Plan, to prescribe, amend, and rescind regulations relating to the Plan, to provide for conditions and assurances deemed necessary or advisable to protect the interests of the Company and its Affiliates, and to make all other determinations necessary or advisable for the administration of the Plan, but only to the extent not contrary to the express provisions of the Plan. Determinations, interpretations, or other actions made or taken by the Committee pursuant to the provisions of the Plan shall be final, binding and conclusive for all purposes and upon all Participants. No member of the Committee shall be liable for any such action or determination made in good faith. The Committee may delegate to the CEO, the SVP-HR or other senior officers or senior managers of the Company or Forest City REIT, subject to such terms as the Committee shall determine, authority to administer all or any portion of the Plan, or the authority to perform certain functions, including administrative functions. In the event of such delegation, all references to the Committee in this Plan (other than such references in the immediately preceding sentence and in the last sentence of this Section 3) shall be deemed references to such senior officers or senior managers as it relates to those aspects of the Plan that have been delegated. Notwithstanding the foregoing, and to the extent required by the Committee charter or the applicable exchange listing standards, the Committee shall retain exclusive authority to establish Award Opportunities and determine payouts for any Board-appointed officers of Forest City REIT who are designated by the Board as “Section 16 officers”.
4. Eligibility. The Committee, in its sole discretion, shall determine which Employees will be eligible to participate in the Plan for any given Performance Period. In lieu of expressly selecting eligible Employees for Plan participation, the Committee may establish eligibility criteria providing for participation of all Employees who satisfy such criteria. When making eligibility determinations, the Committee shall consider the recommendations of the CEO and the SVP-HR; provided that the CEO shall make all recommendations with respect to the participation of the SVP-HR. An Employee who is a Participant for a given Performance Period is neither guaranteed nor assured of being selected for participation in any subsequent Performance Period.
5. Award Opportunities.
a. After the beginning of each Performance Period, the Committee shall establish the Award Opportunity for each Participant, including the applicable Performance Objectives and Payout Formula. Each Performance Objective will be weighted by the Committee to reflect its relative importance to the Forest City Group in the applicable Performance Period. The Payout Formulas, Performance Objectives and weighting of the Performance Objectives need not be uniform with respect to any or all Participants. The Committee shall consider the recommendations of the CEO and the SVP-HR in determining the applicable Payout Formulas, Performance Objectives and weighting of the Performance Objectives; provided that the CEO shall make all recommendations with respect to the SVP-HR. The Committee may also establish Award Opportunities for newly hired or newly promoted Employees without compliance with the limitations provided herein, which Award Opportunities may be based on performance during less than the full Performance Period and may be pro-rated at the discretion of the Committee.
b. Participants must achieve the Performance Objectives established by the Committee in order to receive payment of an Award Opportunity under the Plan. However, the Committee may determine that only a threshold level relating to a Performance Objective must be achieved for Award Opportunities to be paid under the Plan. Similarly, the Committee may establish a minimum threshold performance level, a maximum performance level, and one or more intermediate performance levels or ranges, with target award levels or ranges that will correspond to the respective performance levels or ranges included in the Payout Formula.
c. The Committee may in its sole discretion modify the Payout Formulas, Performance Objectives or the related minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable (i) to reflect a change in the business, operations, corporate structure or capital structure of the Forest City Group (or one or more of its members), the manner in which it conducts its business, or other events or circumstances or (ii) in the event that a Participant’s responsibilities materially change during a Performance Period or the Participant is transferred to a position that is not designated as eligible to participate in the Plan.
6. Determination of Award Opportunities.
a. Following the end of each Performance Period, the Committee shall determine whether and to what extent the Performance Objectives with respect to each Participant for the applicable Performance Period have been achieved and, if such Performance Objectives have been achieved, to approve actual payment of each Award Opportunity under the Plan pursuant to the applicable Payout Formulas. The Committee shall consider the recommendations of the CEO and the SVP-HR when determining whether the Performance Objectives have been achieved with respect to Participants; provided that the CEO shall make all recommendations with respect to the SVP-HR. The Committee may, in its sole discretion, increase, decrease or eliminate the amount of any Award Opportunity otherwise payable to any Participant to reflect such Participant’s individual performance or such other factors as the Committee deems relevant, in recognition of changed or special circumstances, or for any other reason. Except as otherwise provided in Section 6(b) or as otherwise determined by the Committee, in the event a Participant’s employment with the Forest
City Group terminates for any reason prior to the last day of the Performance Period, the Participant shall not be entitled to payment of an Award Opportunity with respect to that Performance Period.
b. Unless otherwise determined by the Committee, a Participant who terminates employment with the Forest City Group during a Performance Period and at least one year after the beginning of such Performance Period due to Retirement, Disability or death shall be eligible to receive payment of an Award Opportunity in accordance with this Section 6(b), subject to adjustments under Section 6(a), and pro-rated for the portion of the Performance Period prior to termination of employment.
i. Any pro-rated Award Opportunity pursuant to this Section 6(b) on account of a Participant’s termination of employment due to Disability or death shall be determined based upon the target Award Opportunity level and shall be paid within sixty (60) days following termination of employment. An Award Opportunity payable in the event of death shall be paid to the Participant’s estate.
ii. Any pro-rated Award Opportunity pursuant to this Section 6(b) on account of a Participant’s termination of employment due to Retirement shall be determined based upon actual performance through the end of the applicable Performance Period (subject to adjustments under Section 6(a)) and shall be paid at the same time that Award Opportunities are paid to other Participants for such Performance Period in accordance with Section 7 hereof.
7. Payment of Award Opportunities. Except as otherwise provided in Section 6(b)(i) or this Section 7, if earned as set forth in Section 6, an Award Opportunity of a Participant for a particular Performance Period shall be paid in cash after the end of the Performance Period, but, in no event more than two and one half months after the later of (a) the end of the Performance Period or (b) the end of the calendar year in which such Performance Period ends.
8. Tax Withholding. The Company and its Affiliates shall have the right to deduct from all payments made to any person under the Plan any federal, state, local, foreign or other taxes which, in the opinion of the Company and its Affiliates are required to be withheld with respect to such payments.
9. No Employment Contract. Nothing contained in this Plan shall confer upon a Participant any right with respect to continuance of employment by the Company and its Affiliates, nor limit or affect in any manner the right of the Company and its Affiliates to terminate the employment or adjust the compensation of a Participant. For purposes of the Plan, the transfer of employment of a Participant between the Company and any one of its Affiliates (or between Affiliates) shall not be deemed a termination of the Participant’s employment.
10. Transferability. No right or benefit under this Plan will be subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge such right or benefit will be void. No such right or benefit will in any manner be liable for or subject to the debts, liabilities, or torts of a Participant.
11. Clawback Policy. Notwithstanding any other provision of the Plan to the contrary, any Award Opportunity granted hereunder shall be subject to forfeiture or repayment pursuant to the terms of any applicable compensation recovery (or “clawback”) policy maintained by Forest City REIT from time to time, as any such policy may be amended, including, but not limited to, any amendment adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act or any rules or regulations issued by the Securities Exchange Commission or applicable securities exchange.
12. Successors. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Company.
13. Governing Law. The Plan and all Award Opportunities shall be construed in accordance with and governed by the laws of the State of Delaware, but without regard to its conflict of law provisions.
14. Amendment or Termination. The Committee reserves the right, at any time, to amend, suspend or terminate the Plan, in whole or in part, in any manner, and for any reason, and without the consent of any Participant, Employee or other person. A proper amendment of this Plan automatically shall effect a corresponding amendment to all Participants’ rights hereunder without further action or notice. A proper termination of this Plan automatically shall effect a termination of all Participants’ rights hereunder without further action or notice.
15. Participation by Employees of Affiliates. Any Affiliate may, by action of its board of directors or equivalent governing body and with the consent of the Committee, adopt the Plan; provided that the Committee may waive the requirement that such board of directors or equivalent governing body effect such adoption. By its adoption of or participation in the Plan, the adopting Affiliate shall be deemed to appoint the Company its exclusive agent to exercise on its behalf all of the power and authority conferred by the Plan upon the Company and accept the delegation to the Committee of all the power and authority conferred upon it by the Plan. The authority of the Company to act as such agent shall continue until the Plan is terminated as to the participating Affiliate. An Award Opportunity of a Participant employed by a participating Affiliate shall be paid in accordance with the Plan solely by that Affiliate, unless the Committee otherwise determines that the Company shall be responsible for payment. Each Award Opportunity that may become payable under the Plan shall be paid solely from the general assets of the Company or the Affiliate responsible for payment thereof. Nothing in this Plan shall be construed to create a trust or to establish or evidence any Participant’s claim of any right to payment of an Award Opportunity other than as an unsecured general creditor with respect to any payment to which he or she may be entitled.
[SIGNATURE PAGE FOLLOWS]
EXECUTED as of December 31, 2015.
FOREST CITY EMPLOYER, LLC
By:
David J. LaRue
President and Chief Executive Officer
Exhibit 99.1
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AT THE COMPANY | ON THE WEB |
Jeff Frericks | www.forestcity.net |
Vice President – Capital Markets | |
216-621-6060 | |
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Jeff Linton | |
Senior Vice President – Corporate Communication | |
216-621-6060 | |
For immediate release
Forest City closes new $500 million revolving credit facility
CLEVELAND, Ohio - November 18, 2015 - Forest City Enterprises, Inc., (NYSE: FCEA and FCEB) today announced that it has closed a new, $500 million unsecured credit facility. The four-year facility, with two six-month extension options, includes an accordion feature allowing the overall facility to be increased to $750 million. The facility is initially priced at LIBOR plus 160 bps, subject to adjustment based on the company’s leverage ratio.
"As we transition to REIT status, this new credit facility gives us enhanced flexibility to execute our business strategies, including creating a strong, sustaining capital structure," said Bob O’Brien, Forest City chief financial officer. "Supported by an unencumbered asset pool, the facility’s more favorable pricing and covenants reflect our significantly improved balance sheet and debt metrics as a result of our ongoing deleveraging efforts. We're gratified by the confidence and support shown by the lending market, and I want to thank our internal finance team, led by Chris Clayton, in achieving this great outcome."
Bank of America, N.A. will serve as administrative agent, and PNC Bank, National Association as syndication agent. Citibank, KeyBank, National Association and The Bank of New York Mellon, will serve as co-documentation agents. The closing of the facility also included Huntington Bank and US Bank, with the intent to bring in additional banks following the company’s planned conversion to REIT status, effective January 1, 2016. The new facility replaces the company's prior revolving credit facility, which was scheduled to mature in February, 2016, and was priced at LIBOR plus 350 bps.
About Forest City
Forest City Enterprises, Inc. is an NYSE-listed national real estate company with $10.3 billion in consolidated assets. The company is principally engaged in the ownership, development, management and acquisition of commercial and residential real estate throughout the United States. For more information, visit www.forestcity.net.
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