(Unrestricted
Notes)
(including any other persons or entities exchanging Existing Notes
hereunder for whom the undersigned Holder holds contractual and
investment authority, the “ Holder ”) enters
into this Exchange Agreement (the “ Agreement ”)
with Forest City Enterprises, Inc., a Ohio corporation, (the
“ Company ”) on
, 2009 whereby the Holder will exchange (the “
Exchange ”) the Company’s 3.625% Puttable
Equity-Linked Senior Notes due 2011 (the “ Existing
Notes ”) for the Company’s new 3.625% Puttable
Equity-Linked Senior Notes due 2014 (the “ New Notes
”) that will be issued pursuant to the provisions of an
Indenture dated as of
, 2009 among the Company and Bank of New York Trust Company, N.A.,
as Trustee (the “ Trustee ”), as it may be
supplemented or amended from time to time (the “
Indenture ”).
On
and subject to the terms hereof, the parties hereto agree as
follows:
Article I
: Exchange of the Existing Notes
for New Notes
At
the Closing (as defined herein), the Holder hereby agrees to
exchange and deliver to the Company the following Existing Notes,
and in exchange therefor the Company hereby agrees to issue to the
Holder the principal amount of New Notes described
below:
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Principal
Amount of Existing Notes to be Exchanged:
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$
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(the “
Exchanged Notes ”).
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Principal
amount of New Notes to be issued in Exchange:
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$
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(the “
Holder’s New Notes ”).
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The
closing of the Exchange (the “ Closing ”) shall
occur no later than three business days after the date of this
Agreement. At the Closing, (a) the Holder shall deliver or
cause to be delivered to the Company all right, title and interest
in and to the Exchanged Notes free and clear of any mortgage, lien,
pledge, charge, security interest, encumbrance, title retention
agreement, option, equity or other adverse claim thereto
(collectively, “ Liens ”), together with any
documents of conveyance or transfer that the Company may deem
necessary or desirable to transfer to and confirm in the Company
all right, title and interest in and to the Exchanged Notes free
and clear of any Liens, and (b) the Company shall issue to the
Holder the Holder’s New Notes; provided, however, that the
parties acknowledge that the issuance of the Holder’s New
Notes to the Holder may be delayed due to procedures and mechanics
within the system of the Depository Trust Company and that such
delay will not be a default under this Agreement so long as
(i) the Company is using its best efforts to effect the
issuance of one or more global notes representing the New Notes,
(ii) such delay is no longer than three business days, and
(iii) interest shall accrue on such New Notes from the date of
the Indenture. Simultaneously with or after the Closing, the
Company may issue New Notes to one or more other holders of
outstanding Existing Notes, subject to the terms of the
Indenture.
On
October 15, 2009, the Company is scheduled to and will make a
payment to the Holder representing the accrued but unpaid interest
on the Exchanged Notes through October 15, 2009 (the “
Scheduled Coupon Interest Payment ”). The Holder
acknowledges that it is only entitled to the accrued but unpaid
interest on the Exchanged Notes through the date of Closing. At
Closing, in anticipation of the Scheduled Coupon Interest Payment,
the Holder will remit to the Company the balance of the Scheduled
Coupon Interest Payment described below:
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Accrued
Interest on the Exchanged Notes From the Date of Closing through
October 15, 2009:
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$
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(the “
Coupon Interest Remittance ”).
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Article II
: Covenants, Representations and
Warranties of the Holder
The
Holder hereby covenants as follows, and makes the following
representations and warranties, each of which is and shall be true
and correct on the date hereof and at the Closing, to the Company,
Lazard Frères & Co. LLC and Lazard Capital Markets LLC,
and all such covenants, representations and warranties shall
survive the Exchange.
Section 2.1
Power and
Authorization. The Holder is duly organized, validly
existing and in good standing, and has the power, authority and
capacity to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the Exchange contemplated
hereby. If the Holder that is signatory hereto is executing this
Agreement to effect the exchange of Exchanged Notes beneficially
owned by one or more other persons or entities (who are thus
included in the definition of “Holder” hereunder),
(a) such signatory Holder has all requisite discretionary
authority to enter into this Agreement on behalf of, and bind, each
suc
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