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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 3, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FOREST CITY ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
Ohio 1100 Terminal Tower, 34-0863886
(STATE OR OTHER JURISDICTION OF 50 Public Square (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) Cleveland, Ohio 44113-2203 -- (216) 621-6060 IDENTIFICATION NUMBER)
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
WILLIAM M. WARREN
General Counsel, Senior Vice President and Assistant Secretary
1100 Terminal Tower,
50 Public Square
Cleveland, Ohio 44113-2203
(216) 621-6060
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
DAVID P. PORTER
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
(216) 586-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as determined by market conditions and other factors, after the
effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE AGGREGATE OFFERING OFFERING AMOUNT OF
BEING REGISTERED REGISTERED(1)(2) PRICE PER UNIT(3) PRICE(2)(3) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
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Debt Securities(4).............................
Preferred Stock, without par value(4)..........
Depositary Shares(5)...........................
Class A Common Stock, par value $.33 1/3 per
share(4).....................................
Total.......................................... $250,000,000 100% $250,000,000(5) $73,750.00
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(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
constituting a part of this Registration Statement also relates to
$167,890,000 of the Registrant's securities registered under Registration
Statement 333-22695 and for which a filing fee of $50,875.76 has previously
been paid.
(3) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933 and exclusive of accrued
interest and dividends, if any.
(4) Also includes such indeterminate amounts of Debt Securities and Preferred
Stock and indeterminate number of shares of Class A Common Stock as may be
issued upon conversion of or exchange for any Debt Securities or Preferred
Stock that are subject to this Registration Statement.
(5) In the event Forest City Enterprises, Inc. elects to offer to the public
fractional interests in shares of the Preferred Stock registered hereunder,
Depositary Receipts will be distributed to those persons purchasing such
fractional interests and shares of Preferred Stock will be issued to the
Depositary under the Deposit Agreement. No separate consideration will be
received for the Depositary Shares.
(6) No separate consideration will be received for the Debt Securities,
Preferred Stock, or the Class A Common Stock issuable upon conversion of or
in exchange for any securities registered hereunder that provide for
conversion or exchange into such securities.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus included
in this registration statement is a combined prospectus relating also to
Registration Statement No. 333-22695.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement contains one form of prospectus to be used in
connection with offerings of Debt Securities, Preferred Stock, Depositary
Shares, and Class A Common Stock of Forest City Enterprises, Inc.
Each offering of securities made under this Registration Statement will be
made pursuant to this Prospectus, with the specific terms of the securities
offered thereby in an accompanying Prospectus Supplement.
[SUBJECT TO COMPLETION]
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED , 1997
$417,890,000
FOREST CITY ENTERPRISES, INC.
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES, AND CLASS A COMMON STOCK*
Forest City Enterprises, Inc., an Ohio corporation ("Forest City" or the
"Company"), may from time to time offer together or separately its (a) debt
securities, in one or more series, which may be either senior subordinated debt
securities (the "Senior Subordinated Debt Securities") or junior subordinated
debt securities (the "Junior Subordinated Debt Securities" and, together with
the Senior Subordinated Debt Securities, the "Debt Securities"), (b) shares of
its preferred stock, without par value (the "Preferred Stock"), which may be
issued in the form of Depositary Shares (as defined herein) evidenced by
Depositary Receipts (as defined herein), and (c) shares of its Class A Common
Stock, par value $.33 1/3 per share (the "Class A Common Stock"). The Debt
Securities, Preferred Stock, and Class A Common Stock, are referred to herein
collectively as the "Offered Securities."
The Offered Securities may be issued in one or more series or issuance and
will be limited to $417,890,000 aggregate public offering price (or its
equivalent, based on the applicable exchange rate at the time of sale, in one or
more foreign currencies, currency units or composite currencies as shall be
designated by Forest City).
Specific terms of the particular Offered Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying Prospectus
Supplement (the "Prospectus Supplement"), which will describe, without
limitation and where applicable, the following: (a) in the case of the Debt
Securities, the specific designation, aggregate principal amount, denominations,
maturity, premium, if any, interest rate (which may be fixed or variable) or
method of calculating interest, if any, place or places where principal,
premium, if any, and interest, if any, on such Debt Securities will be payable,
the currency in which principal, premium, if any, and interest, if any, on such
Debt Securities will be payable, any terms of redemption, any sinking fund
provisions, terms for any conversion or exchange into other Offered Securities,
initial public offering or purchase price, methods of distribution and other
special terms, (b) in the case of Preferred Stock, the specific designation,
stated value and liquidation preference per share and number of shares offered,
dividend rate (which may be fixed or variable) or method of calculating
dividends, place or places where dividends will be payable, any terms of
redemption, any sinking fund provisions, terms for any conversion or exchange
into other Offered Securities, initial public offering or purchase price,
methods of distribution and other special terms, (c) in the case of Class A
Common Stock, the number of shares offered, initial public offering or purchase
price, methods of distribution and other special terms, and (d) in the case of
Depositary Shares, the fractional share of Preferred Stock represented by each
such Depositary Share.
The Debt Securities will be unsecured. Accordingly, holders of the Debt
Securities should look only to the assets of Forest City for payments of
interest and principal and premium, if any. The Debt Securities will be
subordinated in right of payment to all senior debt of Forest City, and the
Junior Subordinated Debt Securities will be subordinated to the Senior
Subordinated Debt Securities, to the extent described herein and in the
applicable Prospectus Supplement relating thereto. The Debt Securities may be
denominated in United States dollars or, at the option of Forest City if so
specified in the applicable Prospectus Supplement, in one or more foreign
currencies or currency units. The Debt Securities may only be issued in
registered form or in the form of one or more global debt securities unless
otherwise specified in the applicable Prospectus Supplement. If so specified in
the applicable Prospectus Supplement, Debt Securities of a series may be issued
in whole or in part in the form of one or more temporary or permanent global
debt securities.
The Prospectus Supplement also will contain information, as applicable,
about certain United States Federal income tax considerations relating to the
Offered Securities.
The Offered Securities may be sold through agents, underwriters or dealers
as designated from time to time, directly to purchasers, or through a
combination of such methods. See "Plan of Distribution." If agents of Forest
City or any dealers or underwriters are involved in the sale of the Offered
Securities in respect of which this Prospectus is being delivered, the names of
such agents, dealers or underwriters and any applicable commissions or
discounts, if any, will be set forth in or may be calculated from the Prospectus
Supplement with respect to such Offered Securities.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
*Pursuant to Rule 429 under the Securities Act of 1933, as amended (the
"Securities Act"), this Prospectus relates to an aggregate of $417,890,000 of
the Company's securities $167,890,000 of which were registered under
Registration Statement 333-22695.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1997.
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AVAILABLE INFORMATION
Forest City is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at prescribed rates
at the public reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Citicorp Center, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. The Commission
maintains a Web site that contains reports, proxy and information statements and
other information regarding registrants, such as Forest City, that file
electronically with the Commission and the address of such Web site is
http://www.sec.gov. Additionally, the Class A Common Stock of Forest City, par
value $.33 1/3 per share, and the Class B Common Stock of Forest City, par value
$.33 1/3 per share, are listed on the New York Stock Exchange under the symbols
FCEA and FCEB, respectively and such reports, proxy statements and other
information concerning Forest City are also available for inspection at the
offices of the New York Stock Exchange located at 20 Broad Street, New York, NY
10005.
Forest City has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the Offered Securities.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to Forest City and the Offered Securities, reference is made to the
Registration Statement and the exhibits and the financial statements, notes and
schedules filed as a part thereof or incorporated by reference therein, which
may be inspected at the public reference facilities of the Commission, at the
addresses set forth above. Statements made in this Prospectus concerning the
contents of any documents referred to herein are not necessarily complete, and
in each instance are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Forest City with the Commission are
incorporated into this Prospectus by reference:
1. Forest City's Annual Report on Form 10-K for the fiscal year ended
January 31, 1997 (File No. 1-4372);
2. Forest City's Quarterly Report on Form 10-Q for the fiscal quarter ended
April 30, 1997;
3. Forest City's Quarterly Report on Form 10-Q for the fiscal quarter ended
July 31, 1997; and
4. Description of Forest City's Class A Common Stock contained in its
Registration Statement on Form 10 (File No. 1-4372).
Each document or report filed by Forest City pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering described herein shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document.
Forest City will provide without charge to any person, including any
beneficial owners, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all documents incorporated by reference
herein (other than exhibits not specifically incorporated by reference into the
texts of such documents). Requests for such documents should be directed to:
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Forest City Enterprises, Inc., 1100 Terminal Tower, 50 Public Square, Cleveland,
Ohio 44113-2203, Attention: Secretary (telephone: 216-621-6060).
Any statement contained herein, or in a document all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement or this Prospectus.
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FOREST CITY
Founded 77 years ago and publicly traded since 1960, Forest City
Enterprises, Inc. (with its Subsidiaries, the "Company" or "Forest City") is one
of the leading real estate development companies in the United States. It
develops, acquires, owns and manages commercial and residential real estate
projects in 21 states and the District of Columbia. At July 31, 1997, the
Company had $2.7 billion in consolidated assets, of which approximately $2.5
billion was invested in commercial and residential real estate.
The Company operates through its four principal business groups:
- The Commercial Group, which develops, acquires, owns and operates
shopping centers, office buildings and mixed-use projects including
hotels.
- The Residential Group, which develops, acquires, owns and operates the
Company's multi-family properties.
- The Land Group, which owns and develops raw land into master planned
communities and other residential developments for resale.
- The Lumber Trading Group, which operates the Company's lumber wholesaling
business.
Forest City was incorporated in Ohio in 1960 as a successor to a business
started in 1921. The address of Forest City's principal executive offices is
1100 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113-2203; its telephone
number is (216)621-6060.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the periods indicated. For the purpose of computing such ratio,
"earnings" consist of income from continuing operations before provision for
income taxes and extraordinary gain, plus fixed charges, and distributed income
from less than 50%-owned companies carried at equity, amortization of previously
capitalized interest, equity method losses where the debt obligations are not
guaranteed, less net capitalized interest of consolidated subsidiaries. "Fixed
charges" comprise interest on long-term and short-term debt, capitalized
interest, amortization of loan procurement costs and the portion of rents
representative of an appropriate interest factor.
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SIX MONTHS
ENDED JULY
31, YEAR ENDED JANUARY 31,
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1997 1996 1997 1996 1995 1994 1993
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Ratio of Earnings to Fixed Charges................ -- 1.02 1.11 1.10 -- 1.04 1.08
</TABLE>
To date, Forest City has not issued any shares of Preferred Stock;
therefore, the ratio of earnings to combined fixed charges and preferred stock
dividends is the same as the ratio of earnings to fixed charges and are not
separately presented. Total fixed charges exceeded the Company's adjusted
earnings by $17 million and $28 million for the six months ended July 31, 1997
and the fiscal year ended January 31, 1995, respectively. For the six months
ended July 31, 1997, earnings, as adjusted, includes income of $15 million from
a lawsuit settlement related to Toscana, a 563-unit apartment complex, and a $39
million loss related to sales of Toscana ($36 million) and a partnership
interest ($3 million), but does not include an extraordinary gain of $18 million
related to the sale of Toscana. For the year ended January 31, 1995, earnings,
as adjusted, includes a loss of $31 million related to the sale of Park LaBrea
Towers but does not include an extraordinary gain of $60 million, also related
to the sale of Park LaBrea Towers. The Company has sources of funds other than
earnings from operations, principally from depreciation and amortization that
are available to cover fixed charges.
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USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement,
Forest City intends to use the net proceeds from the sale of the Offered
Securities for general corporate purposes, which may include repayment of
indebtedness, additions to working capital, capital expenditures and
acquisitions or for such other purposes as may be specified in the applicable
Prospectus Supplement. A more detailed description of the use of proceeds of any
specific offering of Offered Securities will be set forth in the Prospectus
Supplement pertaining to such offering.
DESCRIPTION OF DEBT SECURITIES
The Senior Subordinated Debt Securities are to be issued under an Indenture
(the "Senior Subordinated Indenture"), between Forest City, as issuer, and
National City Bank, as Trustee (the "Trustee"). The Junior Subordinated Debt
Securities will be issued pursuant to a separate Indenture (the "Junior
Subordinated Indenture"), also between Forest City, as issuer, and National City
Bank, as Trustee. The Senior Subordinated Indenture and Junior Subordinated
Indenture are sometimes referred to collectively as the "Indentures." A copy of
the form of each Indenture is filed as an exhibit to the Registration Statement
of which this Prospectus is a part. The Debt Securities may be issued from time
to time in one or more series. The particular terms of each series, or of Debt
Securities forming a part of a series, which are offered by a Prospectus
Supplement will be described in such Prospectus Supplement.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject, and are qualified in their entirety by
reference, to all the provisions of the Indentures, including the definitions
therein of certain terms, and, with respect to any particular Debt Securities,
to the description of the terms thereof included in the Prospectus Supplement
relating thereto. Wherever particular Sections or defined terms of the
Indentures are referred to herein or in a Prospectus Supplement, such Sections
or defined terms are incorporated by reference herein or therein, as the case
may be.
The Company currently conducts substantially all of its operations through
subsidiaries. The Company's ability to pay principal and interest on the Debt
Securities is dependent upon the ability of its subsidiaries to distribute their
income to the Company. Certain of these subsidiaries are subject to capital
adequacy restrictions and financial covenants.
The Junior Subordinated Debt Securities will be subordinated in right of
payment to all Senior Debt (as defined herein) and the Senior Subordinated Debt
Securities will be subordinated in right of payment to all Senior Indebtedness
(as defined herein). See "--Subordination of Debt Securities". The only Senior
Debt or Senior Indebtedness now outstanding are borrowings under the Credit
Agreement dated as of July 25, 1994 among Forest City Rental Properties
Corporation, a wholly owned subsidiary of the Company, and the banks party
thereto, as amended (the "Credit Agreement"), which borrowings are guaranteed in
full by the Company. The Company may borrow up to $120 million under the Credit
Agreement; as of July 31, 1997, $74 million was outstanding under the Credit
Agreement.
The Holders of Debt Securities (including Senior Subordinated Debt
Securities) will also be structurally subordinated to the creditors of the
Company's subsidiaries. At July 31, 1997, approximately $1.9 billion of
indebtedness issued or guaranteed by subsidiaries of the Company was outstanding
in addition to borrowings under the Credit Agreement. Except for the borrowings
and guaranties permitted under the Credit Agreement, all indebtedness issued or
guaranteed by subsidiaries of the Company is nonrecourse to the Company.
GENERAL
The Indentures will provide that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. Forest City may specify a
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maximum aggregate principal amount for the Debt Securities of any series.
(Section 301) The Debt Securities are to have such terms and provisions which
are not inconsistent with the Indentures, including as to maturity, principal
and interest, as Forest City may determine.
The applicable Prospectus Supplement will set forth whether the Debt
Securities offered will be Senior Subordinated Debt Securities or Junior
Subordinated Debt Securities, the price or prices at which the Debt Securities
to be offered will be issued and will describe the following terms of such Debt
Securities: (1) the title of such Debt Securities; (2) any limit on the
aggregate principal amount of such Debt Securities or the series of which they
are a part; (3) the Person to whom any interest on a Debt Security of the series
shall be payable, if other than the Person in whose name that Debt Security (or
one or more predecessor Debt Securities) is registered at the close of business
on the Regular Record Date for such interest; (4) the date or dates on which the
principal of any of such Debt Securities will be payable; (5) the rate or rates
at which any of such Debt Securities will bear interest, if any, the date or
dates from which any such interest will accrue, the Interest Payment Dates on
which any such interest will be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date; (6) the place or places where the
principal of and any premium and interest on any of such Debt Securities will be
payable; (7) the period or periods within which, the price or prices at which
and the terms and conditions on which any of such Debt Securities may be
redeemed, in whole or in part, at the option of Forest City; (8) the obligation,
if any, of Forest City to redeem or purchase any of such Debt Securities
pursuant to any sinking fund or analogous provision or at the option of the
Holder thereof, and the period or periods within which, the price or prices at
which and the terms and conditions on which any of such Debt Securities will be
redeemed or purchased, in whole or in part, pursuant to such obligation; (9) the
denominations in which any of such Debt Securities will be issuable, if other
than denominations of $1,000 and any integral multiple thereof; (10) if the
amount of principal of or any premium or interest on any of such Debt Securities
may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined; (11) if other than the currency
of the United States of America, the currency, currencies or currency units in
which the principal of or any premium or interest on any of such Debt Securities
will be payable (and the manner in which the equivalent of the principal amount
thereof in the currency of the United States of America is to be determined for
any purpose, including for the purpose of determining the principal amount
deemed to be Outstanding at any time); (12) if the principal of or any premium
or interest on any of such Debt Securities is to be payable, at the election of
Forest City or the Holder thereof, in one or more currencies or currency units
other than those in which such Debt Securities are stated to be payable, the
currency, currencies or currency units in which payment of any such amount as to
which such election is made will be payable, the periods within which and the
terms and conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount is to be determined); (13) if other
than the entire principal amount thereof, the portion of the principal amount of
any of such Debt Securities which will be payable upon declaration of
acceleration of the Maturity thereof; (14) if the principal amount payable at
the Stated Maturity of any of such Debt Securities will not be determinable as
of any one or more dates prior to the Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable upon any
Maturity other than the Stated Maturity or which will be deemed to be
Outstanding as of any such date (or, in any such case, the manner in which such
deemed principal amount is to be determined); (15) if applicable, that such Debt
Securities, in whole or any specified part, are defeasible pursuant to the
provisions of the relevant Indenture described under "Defeasance and Covenant
Defeasance -- Defeasance and Discharge" or "Defeasance and Covenant
Defeasance -- Covenant Defeasance," or under both such captions; (16) if
applicable, the terms of any right to convert Debt Securities into shares of
Class A Common Stock of Forest City or other securities or property; (17)
whether any of such Debt Securities will be issuable in whole or in part in the
form of one or more Global Securities, as defined in the applicable Indenture,
and, if so, the respective Depositaries for such Global Securities, the form of
any legend or legends to be borne by any such Global Security in addition to or
in lieu of
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the legend referred to under "Form, Exchange and Transfer" or "Global
Securities" and, if different from those described under such captions, any
circumstances under which any such Global Security may be exchanged in whole or
in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the names of Persons other than the
Depositary for such Global Security or its nominee; (18) any addition to or
change in the Events of Default applicable to any of such Debt Securities and
any change in the right of the Trustee or the Holders to declare the principal
amount of any of such Debt Securities due and payable; (19) any addition to or
change in the covenants applicable to such Debt Securities; and (20) any other
terms of such Debt Securities not inconsistent with the provisions of the
relevant Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Certain special United
States Federal income tax considerations (if any) applicable to Debt Securities
sold at an original issue discount will be described in the applicable
Prospectus Supplement under "United States Taxation." In addition, certain
special United States Federal income tax or other considerations (if any)
applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars will be described in the
applicable Prospectus Supplement.
CONVERSION RIGHTS
The terms on which Debt Securities of any series are convertible into
Common Stock or other securities or property will be set forth in the Prospectus
Supplement relating thereto. Such terms shall include provisions as to whether
conversion is mandatory or at the option of the holder and may include
provisions pursuant to which the number of shares of Common Stock or other
securities or property to be received by the Holders of Debt Securities upon
conversion would be calculated according to the market price of Common Stock or
other securities or property as of a time stated in the applicable Prospectus
Supplement. (Article Fourteen)
SUBORDINATION OF DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Debt Securities.
SENIOR SUBORDINATED DEBT SECURITIES
The Senior Subordinated Debt Securities will, to the extent set forth in
the Senior Subordinated Indenture, be subordinate in right of payment to the
prior payment in full of all Senior Indebtedness, which includes the guaranty by
Forest City of the obligations under the Credit Agreement. Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, assignment for the benefit of creditors, marshalling of
assets or any bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with any insolvency or bankruptcy proceeding of Forest City, the
holders of Senior Indebtedness will first be entitled to receive payment in full
of all amounts due thereon or to be due thereon, if any, on such Senior
Indebtedness before the Holders of the Senior Subordinated Debt Securities will
be entitled to receive or retain any payment in respect of the principal of (and
premium if any) or interest, if any, on the Senior Subordinated Debt Securities.
(Section 1502)
By reason of such subordination, in the event of liquidation or insolvency,
Holders of Senior Subordinated Debt Securities may recover less than holders of
Senior Indebtedness and may recover more than the Holders of the Junior
Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Senior Subordinated
Debt Securities, the holders of all Senior Indebtedness outstanding at the time
of such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the Holders of the Senior Subordinated Debt
Securities will be entitled to receive any payment upon the principal of (or
premium, if any) or interest, if any, on the Senior Subordinated Debt
Securities. (Section 1503)
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No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Senior Subordinated Debt Securities may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Indebtedness, or an event of default with respect to any Senior
Indebtedness resulting in the acceleration of the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default. (Section
1504) For purposes of the subordination provisions, the payment, issuance and
delivery of cash, property or securities (other than stock and certain
subordinated securities of Forest City) upon conversion of a Senior Subordinated
Debt Security will be deemed to constitute payment on account of the principal
of such Senior Subordinated Debt Security.
JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities will, to the extent set forth in
the Junior Subordinated Indenture, be subordinate in right of payment to the
prior payment in full of all Senior Debt. Upon any payment or distribution of
assets to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshalling of assets
or any bankruptcy, insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of Forest City, the
holders of Senior Debt will first be entitled to receive payment in full of all
amounts due thereon or to be due thereon, if any, on such Senior Debt before the
Holders of the Junior Subordinated Debt Securities will be entitled to receive
or retain any payment in respect of the principal of (and premium if any) or
interest, if any, on the Junior Subordinated Debt Securities. (Section 1502)
By reason of such subordination, in the event of liquidation or insolvency,
Holders of Junior Subordinated Debt Securities may recover less than holders of
Senior Debt and may recover less than the Holders of the Senior Subordinated
Debt Securities.
In the event of the acceleration of the maturity of any Junior Subordinated
Debt Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon before the Holders of the Junior Subordinated Debt Securities will
be entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Junior Subordinated Debt Securities. (Section 1503)
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Junior Subordinated Debt Securities may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Debt, or an event of default with respect to any Senior Debt resulting in
the acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. (Section 1504) For purposes of the
subordination provisions, the payment, issuance and delivery of cash, property
or securities (other than stock and certain subordinated securities of Forest
City) upon conversion of a Junior Subordinated Debt Security will be deemed to
constitute payment on account of the principal of such Junior Subordinated Debt
Security.
DEFINITIONS
Unless otherwise indicated in the applicable Prospectus Supplement, the
following definitions are applicable to the Indentures relating to the Debt
Securities. Reference is made to the relevant Indenture for the full definition
of each term.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property
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or services, (v) all indebtedness of the Person, whether incurred on or prior to
the date of the relevant Indenture or thereafter incurred, for claims in respect
of derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; and
(vi) every obligation of the type referred to in the foregoing clauses (i)
through (v) of another Person and all dividends of another Person the payment of
which, in either case, such Person has guaranteed or is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise; provided that such
definition shall not include trade accounts payable or accrued liabilities
arising in the ordinary course of business.
"Senior Debt" means the principal of (and premium, if any) and interest if
any, (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to Forest City to the extent that such
claim for post-petition interest is allowed in such proceeding) on Debt, whether
incurred on or prior to the date of the Junior Subordinated Indenture or
thereafter created, assumed or incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Junior
Subordinated Debt Securities or to other Debt which is pari passu with, or
subordinated to, the Junior Subordinated Debt Securities; provided, however,
that Senior Debt shall not be deemed to include (a) any Debt which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to Forest City, (b) Debt to
any employee of Forest City, and (c) the Junior Subordinated Debt Securities.
"Senior Indebtedness" means (i) the principal of (and premium, if any) and
interest on all indebtedness for borrowed money of Forest City other than the
Debt Securities, whether incurred on or prior to the date of the Senior
Subordinated Indenture or thereafter incurred, except obligations that by their
terms are not superior in right of payment to the Senior Subordinated Securities
or to other indebtedness which is pari passu with, or subordinated to, the
Senior Subordinated Securities and (ii) any deferrals, renewals or extensions of
any such indebtedness for money borrowed. The term "indebtedness for money
borrowed" as used in the foregoing sentence means any obligation of, or any
obligation guaranteed by, Forest City for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
ADDITIONAL TERMS
Neither Indenture limits or prohibits the incurrence of additional Senior
Debt or Senior Indebtedness, either of which may include indebtedness that is
senior to the Debt Securities, but subordinate to other obligations of Forest
City. In connection with the future issuances of Offered Securities, the
Indentures may be amended or supplemented to limit the amount of indebtedness
incurred by Forest City. See "-- Restrictive Covenants." The Senior Subordinated
Debt Securities, when issued, will constitute Senior Debt. The guaranty by
Forest City of the obligations of Forest City Rental Properties Corporation
under the Credit Agreement constitutes both Senior Debt and Senior Indebtedness.
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Debt Securities of a particular series.
FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable Prospectus Supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the relevant Indenture
and the limitations applicable to Global Securities, Debt Securities of each
series will be exchangeable for other Debt Securities of the same series of any
authorized denomination and of a like tenor and aggregate principal amount.
(Section 305)
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Subject to the terms of the relevant Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for exchange
as provided above or for registration of transfer (duly endorsed or with the
form of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by Forest City for
such purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but Forest City may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. Forest City
has appointed National City Bank as Security Registrar. Any transfer agent (in
addition to the Security Registrar) initially designated by Forest City for any
Debt Securities will be named in the applicable Prospectus Supplement. (Section
305) Forest City may at any time designate additional transfer agents or rescind
the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that Forest City will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002)
If the Debt Securities of any series (or of any series and specified terms)
are to be redeemed in part, Forest City will not be required to (i) issue,
register the transfer of or exchange any Debt Security of that series (or of
that series and specified terms, as the case may be) during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security that may be selected for redemption and
ending at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more global securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby (a
"Global Security"). Each Global Security will be registered in the name of a
depositary (the "Depositary") or a nominee thereof identified in the applicable
Prospectus Supplement, will be deposited with such Depositary or nominee or a
custodian thereof and will bear a legend regarding the restrictions on exchanges
and registration of transfer thereof referred to below and any such other
matters as may be provided for pursuant to the Indentures.
Notwithstanding any provision of the relevant Indenture or any Debt
Security described herein, no Global Security may be exchanged in whole or in
part for Debt Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or any nominee of such Depositary unless (i)
the Depositary has notified Forest City that it is unwilling or unable to
continue as Depositary for such Global Security or has ceased to be qualified to
act as such as required by the relevant Indenture, (ii) there shall have
occurred and be continuing an Event of Default with respect to the Debt
Securities represented by such Global Security or (iii) there shall exist such
circumstances, if any, in addition to or in lieu of those described above as may
be described in the applicable Prospectus Supplement. All securities issued in
exchange for a Global Security or any portion thereof will be registered in such
names as the Depositary may direct. (Sections 204 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the relevant Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to have
such Global Security or any Debt Securities represented thereby registered in
their names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities
represented
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thereby for any purpose under the Debt Securities or the relevant Indenture. All
payments of principal of and any premium and interest on a Global Security will
be made to the Depositary or its nominee, as the case may be, as the Holder
thereof. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a Global
Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of Forest City, the Trustee or any agent of
Forest City or the Trustee will have any responsibility or liability for any
aspect of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicted in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
Forest City may designate for such purpose from time to time. Unless otherwise
indicated in the applicable Prospectus Supplement, the corporate trust office of
the Trustee in The City of New York will be designated as the Company's sole
Paying Agent for payments with respect to Debt Securities of each series. Any
other Paying Agents initially designated by Forest City for the Debt Securities
of a particular series will be named in the applicable Prospectus Supplement.
Forest City may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve change in the office through which
any Paying Agent acts, except that Forest City will be required to maintain a
Paying Agent in each Place of Payment for the Debt Securities of a particular
series. (Section 1002)
All moneys paid by Forest City to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to Forest City, and the Holder of such
Debt Security thereafter may look only to Forest City for payment thereof.
(Section 1003)
RESTRICTIVE COVENANTS
Covenants specific to a particular series of Debt Securities will be
included in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indentures will provide that Forest City may not consolidate with or
merge into, or convey, transfer or lease its properties and assets substantially
as an entirety to, any Person (a "Successor
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Person"), and may not permit any Person to merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to, Forest City,
unless (i) the Successor Person (if any) is a corporation, partnership, trust or
other entity organized and validly existing under the laws of any domestic
jurisdiction and assumes Forest City's obligations on the Debt Securities and
under the Indentures, (ii) immediately after giving effect to the transaction,
and treating any indebtedness which becomes an obligation of Forest City or any
Subsidiary as a result of the transaction as having been incurred by it at the
time of the transaction, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing, (iii) if, as a result of the transaction, property of Forest
City would become subject to a Lien that would not be permitted by the relevant
Indenture, Forest City takes such steps as shall be necessary to secure the Debt
Securities, if any, equally and ratably with (or prior to) the indebtedness
secured by such Lien and (iv) certain other conditions are met. (Section 801)
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
relevant Indenture with respect to Debt Securities of any series: (a) failure to
pay principal of or any premium on any Debt Security of that series when due,
whether or not such payment is prohibited by the subordination provisions of the
relevant Indenture; (b) failure to pay any interest on any Debt Securities of
that series when due, continued for 30 days, whether or not such payment is
prohibited by the subordination provisions of the relevant Indenture; (c)
failure to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series, whether or not such deposit is prohibited by the
subordination provisions of the relevant Indenture; (d) failure to perform any
other covenant of Forest City in the relevant Indenture (other than a covenant
included in the relevant Indenture solely for the benefit of a series other than
that series), continued for 60 days after written notice has been given by the
Trustee, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Debt Securities of that series, as provided in the relevant
Indenture; (e) failure to pay when due (subject to any applicable grace period)
the principal of, or acceleration of, any indebtedness for money borrowed by
Forest City, if, in the case of any such failure, such indebtedness has not been
discharged or, in the case of any such acceleration, such indebtedness has not
been discharged or such acceleration has not been rescinded or annulled, in each
case, within 10 days after written notice has been given by the Trustee, or the
Holders of at least 10% in principal amount of the Outstanding Debt Securities
of that series, as provided in the relevant Indenture; (f) certain events in
bankruptcy, insolvency or reorganization; and (g) any other Event of Default
specified in the applicable Prospectus Supplement. (Section 501)
If any Event of Default (other than an Event of Default described in clause
(f) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of that
series by notice as provided in the relevant Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Security or the principal amount of
which is not then determinable, such portion of the principal amount of such
Debt Security, or such other amount in lieu of such principal amount, as may be
specified in the terms of such Debt Security) to be due and payable immediately.
If an Event of Default described in clause (f) above with respect to the Debt
Securities of any series at the time Outstanding shall occur, the principal
amount of all the Debt Securities of that series (or, in the case of any such
Original Issue Discount Security or other Debt Security, such specified amount)
will automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. After any such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal (or other specified
amount), have been cured or waived as provided in the relevant Indenture.
(Section 502) For information as to waiver of defaults, see "Modification and
Waiver."
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Subject to the provisions of the relevant Indenture relating to the duties
of the Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the relevant Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable indemnity.
(Section 603) Subject to such provisions for the indemnification of the Trustee,
the Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the relevant Indenture, or for the appointment of
a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series have made a written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee and (iii) the Trustee has failed to institute such proceeding, and has
not received from the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer. (Section 507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date specified
in such Debt Security. (Section 508)
Forest City will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not Forest City, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of each Indenture and, if so, specifying all such known defaults.
(Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the relevant Indenture may be made by
Forest City and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any Debt
Security, (b) reduce the principal amount of, or any premium or interest on, any
Debt Security, (c) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the Maturity
thereof, (d) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security, (e) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security,
(f) in the case of Debt Securities, modify the subordination provisions in a
manner adverse to the Holders of the Debt Securities, (g) reduce the percentage
in principal amounts of Outstanding Debt Securities of any series, the consent
of whose Holders is required for modification or amendment of the relevant
Indenture, (h) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance with certain
provisions of the relevant Indenture or for waiver of certain defaults, (i)
modify such provisions with respect to modification and waiver, or (j) in the
case of convertible Debt Securities, make any change that adversely affects the
right to convert any Debt Security as provided in the relevant Indenture or
Prospectus Supplement (except as permitted by the relevant Indenture or to
decrease the conversion price of any such Debt Security). (Section 902)
Each Indenture will provide that the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of any series may waive
compliance by Forest City with certain restrictive provisions of such Indenture.
The Holders of a majority in principal amount of the
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Outstanding Debt Securities of any series may waive any past default under the
relevant Indenture, except a default in the payment of principal, premium or
interest and certain covenants and provisions of the relevant Indenture which
cannot be amended without the consent of the Holder of each Outstanding Debt
Security of such series affected. (Section 513) In addition, each Indenture will
provide that any consents or waivers sought from Holders of Debt Securities may
be obtained in connection with a tender offer or exchange offer for any series
of Outstanding Debt Securities or in consideration of payments of money or other
value, provided that such tender offer, exchange offer or offer of consideration
or other value is made to all Holders of the Outstanding Debt Securities of such
series on the same terms. (Section 908)
Each Indenture will provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under such
Indenture as of any date, (i) the principal amount of an Original Issue Discount
Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security and (iii) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be the
U.S. dollar equivalent, determined as of such date in the manner prescribed for
such Debt Security, of the principal amount of such Debt Security (or, in the
case of a Debt Security described in clause (i) or (ii) above, of the amount
described in such clause). Certain Debt Securities, including those for whose
payment or redemption money has been deposited or set aside in trust for the
Holders and those that have been fully defeased pursuant to Section 1302, will
not be deemed to be Outstanding. (Section 101)
Except in certain limited circumstances, Forest City will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under each Indenture, in the
manner and subject to the limitations provided in the Indentures. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such other
shorter period as may be specified by Forest City (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement,
Forest City may elect, at its option at any time, to have the provisions of
Section 1302, relating to defeasance and discharge of indebtedness, or Section
1303, relating to defeasance of certain restrictive covenants in the relevant
Indenture, applied to the Debt Securities of any series, or to any specified
part of a series. (Section 1301)
DEFEASANCE AND DISCHARGE
The Indentures will provide that, upon Forest City's exercise of its option
(if any) to have Section 1302 applied to any Debt Securities, Forest City will
be discharged from all its obligations with respect thereto, including the
provisions of Article Fifteen of the relevant Indenture relating to
subordination, except for certain obligations to exchange or register the
transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies and to hold moneys
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for payment in trust, upon the deposit in trust for the benefit of the Holders
of such Debt Securities of money or U.S. Government Obligations, or both, which,
through the payment of principal and interest in respect thereof in accordance
with their terms, will provide money in an amount sufficient to pay the
principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the Indentures and
such Debt Securities. Such defeasance or discharge may occur only if, among
other things, Forest City has delivered to the Trustee an Opinion of Counsel to
the effect that Forest City has received from, or there has been published by,
the United States Internal Revenue Service a ruling, or there has been a change
in tax law, in either case to the effect that Holders of such Debt Securities
will not recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge were not to occur. (Sections
1302 and 1304)
COVENANT DEFEASANCE
The Indentures will provide that, upon Forest City's exercise of its option
(if any) to have Section 1303 applied to any Debt Securities, Forest City may
omit to comply with certain restrictive covenants, including any that may be
described in the applicable Prospectus Supplement, and the occurrence of certain
Events of Default, which are described above in clause (d) (with respect to such
restrictive covenants) and clause (e) under "Events of Default" and any that may
be described in the applicable Prospectus Supplement, will be deemed not to be
or result in an Event of Default, in each case with respect to such Debt
Securities, and the provisions of Article Fifteen relating to subordination will
cease to be effective with respect to any Debt Securities. Forest City, in order
to exercise such option, will be required to deposit, in trust for the benefit
of the Holders of such Debt Securities, money or U.S. Government Obligations, or
both, which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the relevant
Indenture and such Debt Securities. Forest City will also be required, among
other things, to deliver to the Trustee an Opinion of Counsel to the effect that
holders of such Debt Securities will not recognize gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit
and defeasance were not to occur. In the event Forest City exercised this option
with respect to any Debt Securities and such Debt Securities were declared due
and payable because of the occurrence of any Event of Default, the amount of
money and U.S. Government Obligations so deposited in trust would be sufficient
to pay amounts due on such Debt Securities at the time of their respective
Stated Maturities but may not be sufficient to pay amounts due on such Debt
Securities upon any acceleration resulting from such Event of Default. In such
case, Forest City would remain liable for such payments. (Sections 1303 and
1304)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
TITLE
Forest City, the Trustee and any agent of Forest City or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308)
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RELATIONSHIPS WITH THE TRUSTEE
National City Bank is Trustee under both the Senior Subordinated Indenture
and the Junior Subordinated Indenture. National City Bank is also a lender under
the Credit Agreement and is, and likely will be in the future, a lender with
respect to individual projects of the Company's subsidiaries.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York. (Section 112)
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in the applicable
Prospectus Supplement. The description set forth below is subject to and
qualified in its entirety by reference to amendments to the Amended Articles of
Incorporation of Forest City adopted as of October 11, 1983 (the "Articles"),
fixing the preferences, limitations and relative rights of a particular series
of Preferred Stock.
GENERAL
Under the Articles, the Board of Directors of the Company is authorized
without further shareholder action, to provide for the issuance of up to
5,000,000 shares of Preferred Stock, in such series, with such preferences,
conversion or other rights, restrictions, limitations as to dividends,
qualifications or other provisions, as may be fixed by the Board of Directors.
The Preferred Stock will have the dividend, redemption, liquidation,
sinking fund and conversion rights set forth below unless otherwise provided in
the applicable Prospectus Supplement relating to a particular series of
Preferred Stock. Reference is made to the Prospectus Supplement relating to the
particular series of Preferred Stock offered thereby for specific terms,
including: (i) the designation and authorized number of shares of each series;
(ii) the title and liquidation preference per share of such Preferred Stock and
the number of shares offered; (iii) the price at which such series will be
issued; (iv) the dividend rate, the dates on which dividends shall be payable
and the dates from which dividends shall commence to accumulate; (v) any
redemption or sinking fund provisions of such series; (vi) any conversion
rights; and (vii) any additional dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions of such
series.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable Prospectus Supplement relating to a
particular series of Preferred Stock, each series will rank on a parity as to
dividends and distributions in the event of a liquidation with each other series
of Preferred Stock and, in all cases, will be senior to the Class A Common Stock
and the Class B Common Stock of Forest City, par value $.33 1/3 per share (the
"Class B Common Stock," and together with the Class A Common Stock, the "Common
Stock").
DIVIDEND RIGHTS
Holders of Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors, out of assets of the Company
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the applicable Prospectus Supplement relating to such series of
Preferred Stock. Holders of Preferred Stock will be entitled to receive
dividends in preference to and in priority over dividends on account of Common
Stock and will be cumulative from the date determined by the Board of Directors.
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<PAGE> 19
If the applicable Prospectus Supplement so provides, as long as any shares
of Preferred Stock are outstanding, no dividends will be declared or paid or any
distributions be made on the Common Stock, unless the accrued dividends on each
series of Preferred Stock have been declared and paid.
Each series of Preferred Stock will be entitled to dividends as described
in the Prospectus Supplement relating to such series, which may be based upon
one or more methods of determination. Different series of Preferred Stock may be
entitled to dividends at different dividend rates or based upon different
methods of determination. Except as provided in the applicable Prospectus
Supplement, no series of Preferred Stock will be entitled to participate in the
earnings or assets of the Company.
RIGHTS UPON LIQUIDATION
Upon any dissolution, liquidation or winding-up of the Company, the holders
of each series of Preferred Stock will be entitled to receive out of the assets
of the Company, whether from capital, surplus or earnings, and before any
distribution of any assets is made on account of Class A Common Stock or Class B
Common Stock, the amount per share fixed by the Board of Directors for such
series of Preferred Stock (as reflected in the applicable Prospectus
Supplement), plus unpaid dividends to the date fixed for distribution. Holders
of Preferred Stock will be entitled to no further participation in any
distribution made in conjunction with any such dissolution, liquidation or
winding-up.
REDEMPTION
A series of Preferred Stock may be redeemable, in whole or in part, at the
option of the Company, and may be subject to mandatory redemption pursuant to a
sinking fund, in each case upon terms, at the times, the redemption prices and
for the types of consideration set forth in the Prospectus Supplement relating
to such series. The Prospectus Supplement relating to a series of Preferred
Stock which is subject to mandatory redemption will specify the number of shares
of such series that will be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to any accrued and unpaid dividends thereon to the
date of redemption.
If, after giving notice of redemption to the holders of a series of
Preferred Stock, the Company deposits with a designated bank funds sufficient to
redeem such Preferred Stock, then from and after such deposit, all shares called
for redemption will no longer be outstanding for any purpose, other than the
right to receive the redemption price and the right, if applicable, to convert
such shares into Class A Common Stock of the Company prior to the date fixed for
redemption. The redemption price will be stated in the Prospectus Supplement
relating to a particular series of Preferred Stock.
Except as indicated in the applicable Prospectus Supplement, the Preferred
Stock is not subject to any mandatory redemption at the option of the holder.
SINKING FUND
The Prospectus Supplement for any series of Preferred Stock will state the
terms, if any, of a sinking fund for the purchase or redemption of that series.
CONVERSION RIGHTS
The Prospectus Supplement for any series of Preferred Stock will state the
terms, if any, on which shares of that series are convertible into shares of
Class A Common Stock. The Preferred Stock will have no preemptive rights.
VOTING RIGHTS
Under ordinary circumstances, the holders of Preferred Stock have no voting
rights except as required by law. However, if dividends on the Preferred Stock
are in arrears for an aggregate of six
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<PAGE> 20
quarterly dividends upon such shares, the holders of the Preferred Stock, voting
as a class, will become entitled to elect two Directors until such time as such
arrearages are paid and current dividends paid or declared and funded.
TRANSFER AGENT AND REGISTRAR
The transfer agent, registrar and dividend disbursement agent for a series
of Preferred Stock will be selected by the Company and be described in the
applicable Prospectus Supplement. The registrar for shares of Preferred Stock
will send notices to shareholders of any meetings at which holders of Preferred
Stock have the right to vote on any matter.
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<PAGE> 21
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
Forest City may, at its option, elect to offer fractional shares of
Preferred Stock ("Depositary Shares"), rather than full shares of Preferred
Stock. In such event, Forest City will issue to the public receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of Preferred Stock) of
a share of a particular series of Preferred Stock, as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between Forest City and a depositary named in the applicable Prospectus
Supplement (the "Stock Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption, subscription and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. Copies of the
forms of Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement of which this Prospectus is a part. The following summary
of certain provisions of the Deposit Agreement does not purport to be complete
and is subject, and is qualified in its entirety by reference, to all the
provisions of the Deposit Agreement, including the definitions therein of
certain terms, and with respect to any particular Depositary Receipts, to the
description of the terms thereof included in the Prospectus Supplement relating
thereto.
Pending the preparation of definitive Depositary Receipts, the Stock
Depositary may, upon the written order of Forest City, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) definitive Depositary Receipts but not
in definitive form. Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at Forest City's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Stock Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
number of such Depositary Shares owned by such holders. The Stock Depositary
will distribute only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and the
balance not so distributed will be held by the Stock Depositary (without
liability for interest thereon) and will be added to and treated as part of the
sum next received by the Stock Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the Stock Depositary
will distribute property received by it to the record holders of Depositary
Shares entitled thereto, in such amounts as are, as nearly as practicable, in
proportion to the number of such Depositary Shares owned by such holder, unless
the Stock Depositary determines that it is not feasible to make such
distribution, in which case the Stock Depositary may, with the approval of
Forest City, adopt such method as it deems equitable and practical, including
the sale of such property and distribute the net proceeds from such sale to such
holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by Forest City to holders of
the Preferred Stock shall be made available to the holders of Depositary Shares.
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<PAGE> 22
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the corporate trust office of the
Stock Depositary (unless the related Depositary Shares have previously been
called for redemption), the holder of the Depositary Shares evidenced thereby
will be entitled to delivery at such office to or upon such holder's order, of
the number of whole shares of the related series of Preferred Stock and any
money or other property represented by such Depositary Shares. Holders of
Depositary Shares making such withdrawals will be entitled to receive whole
shares of the related series of Preferred Stock on the basis set forth in the
related Prospectus Supplement for such series of Preferred Stock, but holders of
such whole shares of such Preferred Stock will not thereafter be entitled to
receive Depositary Shares in exchange therefor. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of the
related series of Preferred Stock to be withdrawn, the Stock Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption, the Stock Depositary Shares will be redeemed from the proceeds
received by the Stock Depositary resulting from the redemption, in whole or in
part, of such series of Preferred Stock held by the Stock Depositary in
accordance with the terms of the Deposit Agreement. Whenever Forest City redeems
shares of Preferred Stock held by the Stock Depositary, the Stock Depositary
will redeem as of the same redemption date the number of Depositary Shares
representing shares of Preferred Stock so redeemed. If fewer than all the
Depositary Shares are to be redeemed, the Stock Depositary Shares to be redeemed
will be selected by lot or pro rata as may be determined by the Depositary or by
any other method that may be determined by the Stock Depositary to be equitable.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be outstanding and all rights of the holders of the
Depositary Shares will cease, except the right to receive the money, securities,
or other property payable upon such redemption and any money, securities, or
other property to which the holders of such Depositary Shares were entitled upon
such redemption upon surrender to the Stock Depositary of the Depositary
Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the Stock Depositary as to the
exercise of the voting rights pertaining to the amount of whole shares of the
Preferred Stock represented by such holder's Depositary Shares. The Stock
Depositary will endeavor, insofar as practicable, to vote the amount of whole
shares of the Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and Forest City will agree to take all
reasonable action which may be deemed necessary by the Stock Depositary in order
to enable the Stock Depositary to do so. The Stock Depositary will abstain from
voting shares of the Preferred Stock to the extent it does not receive specific
instructions from the holder of Depositary Shares representing such Preferred
Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between Forest City and the Stock Depositary. However, any amendment which
materially and adversely alters the rights of the holders
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<PAGE> 23
of Depositary Shares will not be effective unless such amendment has been
approved by the holders of at least a majority of the Depositary Shares then
outstanding under such Deposit Agreement. The Deposit Agreement may be
terminated by the Stock Depositary or Forest City only if (i) all outstanding
Depositary Shares under such Deposit Agreement have been redeemed or (ii) there
has been a final distribution in respect of the Preferred Stock in connection
with any liquidation, dissolution or winding up of Forest City and such
distribution has been distributed to the holders of Depositary Receipts.
CHARGES AND EXPENSES OF DEPOSITARY
Forest City will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. Forest City
will pay charges of the Stock Depositary in connection with the initial deposit
of the Preferred Stock and any redemption of the Preferred Stock at the option
of Forest City, and any withdrawals of Preferred Stock by the holders of
Depositary Shares. Holders of Depositary Receipts will pay all other transfer
and other taxes and governmental charges and such other charges as they are
expressly provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Stock Depositary may resign at any time by delivering to Forest City
notice of its election to do so, and Forest City may at any time remove the
Stock Depositary, any such resignation or removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Such successor depositary must be appointed
within 60 days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
Forest City will deliver, at its own expense, all notices and reports
required by law, by the rules of any national securities exchange upon which the
Preferred Stock, the Depositary Shares or the Depositary Receipts are listed or
by the Company's Articles to be furnished to the record holders of Preferred
Stock.
As provided in the Deposit Agreement, neither the Stock Depositary nor
Forest City will be liable if it is prevented or delayed by law or any other
circumstance beyond its control in performing its obligations under the Deposit
Agreement. The obligations of Forest City and the Stock Depositary under the
Deposit Agreement will be limited to performance in good faith of their duties
thereunder and they will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. Forest City and the Stock Depositary may
rely upon written advice of counsel or accountants, or upon information provided
by persons presenting Preferred Stock for deposit, holders of Depositary
Receipts or other persons believed to be competent and on documents believed to
be genuine.
DESCRIPTION OF COMMON STOCK
The Articles authorize the issuance of (a) 48,000,000 shares of Class A
Common Stock, of which, at October 31, 1997, 9,896,486 shares were issued and
were held of record by 851 shareholders, 313,650 shares were held in treasury
and 9,582,836 shares were outstanding and (b) 18,000,000 shares of Class B
Common Stock, convertible on a share-for-share basis into Class A Common Stock,
of which, at October 31, 1997, 5,545,490 shares were issued and were held of
record by 665 shareholders, 139,050 shares were held in treasury and 5,406,440
shares were outstanding.
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<PAGE> 24
The description set forth below of the Class A Common Stock and Class B
Common Stock is subject to and qualified in its entirety by reference to the
Articles.
GENERAL
Except as described below, the shares of Class A Common Stock and the
shares of Class B Common Stock are in all respects identical, and the respective
holders shall be entitled to participate in any dividend, reclassification,
merger, consolidation, reorganization, recapitalization, liquidation,
dissolution or winding up of the affairs of the Company, share-for-share,
without priority or other distinction between classes.
Both the Class A and Class B Common Stock are listed on the New York Stock
Exchange. As of October 31, 1997, Class A Common Stock accounted for
approximately 64% of the total number of shares of Common Stock issued and
outstanding.
DIVIDENDS
The Directors of Forest City are not required to declare a regular cash
dividend in any fiscal year. The Class A Common Stock and Class B Common Stock
will participate equally on a share-for-share basis in any and all cash
dividends paid. No cash dividend can be paid on a class of Common Stock until
provision is made for payment of a dividend of at least an equal amount on a
share-for-share basis on the other class of Common Stock for such fiscal year.
Any extra dividend, special dividend or dividend paid other than cash
(other than a stock dividend) is required to be paid equally to the holders of
Class A Common Stock and the holders of Class B Common Stock on a
share-for-share basis. If the Directors determine to declare any stock dividend
with respect to either class of Common Stock, they must at the same time declare
a proportionate stock dividend with respect to the other class of Common Stock.
If the shares of either class of Common Stock are combined or subdivided, the
shares of the other class of Common Stock must be combined or subdivided in an
equivalent manner. In the discretion of the Directors, dividends payable in
Class A Common Stock may be paid with respect to shares of either class of
Common Stock, but dividends payable in Class B Common Stock may be paid only
with respect to shares of Class B Common Stock.
VOTING RIGHTS
The holders of the Class A Common Stock (voting as a separate class) are
entitled to elect 25% of the Directors rounded up to the nearest whole number.
All other Directors are elected by the holders of the Class B Common Stock
voting as a separate class. Cumulative voting for the election of Directors is
provided by Ohio law if notice in writing is given by any shareholder to the
President, a Vice President or the Secretary of the Company not less than
forty-eight hours before the time fixed for the holding of the meeting that such
shareholder desires cumulative voting with respect to the election of directors
by a class of shareholders to which he belongs, and if an announcement of the
giving of such notice is made upon the convening of the meeting by the Chairman
or Secretary or by or on behalf of the shareholder giving such notice, each
holder of shares of that class shall have the right to accumulate such voting
power as he possesses at such election with respect to shares of that class.
Each holder of shares of Class A Common Stock or Class B Common Stock, as the
case may be, shall have as many votes as equal the number of shares of that
class of Common Stock owned by him multiplied by the number of directors to be
elected by the holders of that class of Common Stock. These votes may be
distributed among the total number of directors to be elected by the holders of
that class of Common Stock or distributed among any lesser number, in such
proportion as the holder may desire.
In the event that the number of outstanding shares of Class A Common Stock
is (as of the record date for any shareholder meeting at which Directors will be
elected) less than 10% of the combined outstanding shares of Class A and Class B
Common Stock, then the holders of Class A Common Stock will not have the right
to elect 25% of the Directors. In such event, the holders of the Class A Common
Stock and the holders of the Class B Common Stock would vote together as a
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<PAGE> 25
single class in the election of all Directors, with each Class A share having
one vote and each Class B share having ten votes.
Further, in the event that the number of outstanding shares of Class B
Common Stock as of the above-mentioned record date, is less than 500,000 shares,
the holders of Class B Common Stock will lose their rights to elect 75% of the
Directors. In such event, the holders of the Class A Common Stock would continue
to vote as a separate class to elect 25% of the Directors rounded up to the
nearest whole number, and the holders of the Class A and Class B Common Stock
would vote together as a single class in the election of the remaining
Directors, with each Class A share having one vote and each Class B share having
ten votes.
The holders of Class A Common Stock and the holders of Class B Common Stock
are entitled to vote as separate classes (1) for the election of Directors (as
discussed above); (2) to amend the Articles or the Code of Regulations of Forest
City or approve a merger or consolidation of Forest City with or into another
corporation if such amendment, merger or consolidation would adversely affect
the rights of the particular class; and (3) on all matters as to which class
voting may be required by applicable Ohio law. The holders of the Class A Common
Stock vote together with the holders of the Class B Common Stock as a single
class on all matters which are submitted to shareholder vote, except as
discussed above. When all holders of shares of Forest City vote as a single
class, each Class A share has one vote and each Class B share has ten votes.
CONVERSION
Holders of shares of Class B Common Stock are entitled to convert, at any
time and at their election, each share of Class B Common Stock into one share of
Class A Common Stock. Shares of Class A Common Stock are not convertible into
any security of Forest City.
OTHER TERMS
Shareholders of Forest City have no preemptive or other rights to subscribe
for additional shares of voting securities of Forest City (except for the
conversion rights of Class B Common Stock described above and conversion rights
of Preferred Stock, if any). Upon any liquidation, dissolution or winding up of
Forest City, the assets legally available for distribution to holders of all
classes of Common Stock are distributable ratably among the holders of the
shares of all classes of Common Stock outstanding at the time. No class of
Common Stock is subject to redemption.
TRANSFER AGENT
National City Bank Corporate Trust Operations Department, Cleveland, Ohio,
currently serves as transfer agent for the Common Stock.
PLAN OF DISTRIBUTION
Forest City may sell Offered Securities to or through underwriters and may
sell Offered Securities directly to other purchasers or through agents.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
In connection with the sale of Offered Securities, underwriters may receive
compensation from Forest City or from purchasers of Offered Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Offered Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Offered Securities may be deemed to be underwriters, and any
discounts or commissions received by them from Forest City and any profit on the
resale of Offered Securities by them may be deemed to be underwriting discounts
and commissions, under the Securities Act. Any such underwriter or agent
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<PAGE> 26
will be identified, and any such compensation received from Forest City will be
described, in the relevant Prospectus Supplement.
Under agreements which may be entered into by Forest City, underwriters and
agents who participate in the distribution of Offered Securities may be entitled
to indemnification by Forest City against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the relevant Prospectus Supplement, Forest City will
authorize underwriters or other persons acting as Forest City's agents to
solicit offers by certain institutions to purchase Offered Securities from
Forest City pursuant to contracts ("Delayed Delivery Contracts") providing for
payment and delivery on a future date. Institutions with which Delayed Delivery
Contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by Forest City. The
obligations of any purchaser under Delayed Delivery Contracts will be subject
only to the conditions that (i) the purchase of the Offered Securities shall not
at the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such purchaser is subject, and (ii) if the Offered
Securities are being sold to underwriters, Forest City shall have sold to such
underwriters the total principal amount of the Offered Securities less the
principal amount thereof covered by Delayed Delivery Contracts. The underwriters
and such other agents will not have any responsibility in respect of the
validity or performance of such Delayed Delivery Contracts.
Agents, underwriters, and dealers may be customers of, engage in
transactions with, or perform services for, Forest City and its subsidiaries in
the ordinary course of business.
VALIDITY OF THE OFFERED SECURITIES
The validity of the Offered Securities offered hereby will be passed upon
for Forest City by Jones, Day, Reavis & Pogue, Cleveland, Ohio, and for any
underwriters or agents by counsel to be named in the applicable Prospectus
Supplement. Counsel to the underwriters or agents may, in some instances, rely
as to certain matters of Ohio law upon the opinion of Jones, Day, Reavis &
Pogue.
EXPERTS
The consolidated financial statements and financial statement schedules of
Forest City and Subsidiaries appearing in Forest City's Annual Report on Form
10-K for the year ended January 31, 1997 have been audited by Coopers & Lybrand
L.L.P., independent accountants as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements and financial statement schedules are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR ANY RELATED
PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS
AND SUCH PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS AND ANY RELATED PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO
SELL OR SOLICITATION OF AN OFFER TO BUY SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
AND ANY RELATED PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF FOREST CITY SINCE THE DATE HEREOF OR THEREOF OR THAT
THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Available Information................... 2
Incorporation of Certain Documents by
Reference............................. 2
Forest City............................. 4
Ratio of Earnings to Fixed Charges...... 4
Use of Proceeds......................... 5
Description of Debt Securities.......... 5
Description of Preferred Stock.......... 16
Description of Depositary Shares........ 19
Description of Common Stock............. 21
Plan of Distribution.................... 23
Validity of the Offered Securities...... 24
Experts................................. 24
</TABLE>
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$417,890,000
FOREST CITY
ENTERPRISES, INC.
DEBT SECURITIES
PREFERRED STOCK,
DEPOSITARY SHARES, AND
CLASS A COMMON STOCK
------------------------
PROSPECTUS
------------------------
, 1997
======================================================
<PAGE> 28
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee.................. $ 73,750.00
Trustee's Fees and Expenses*......................................... 15,000.00
Transfer Agent and Registrar Fees*................................... 15,000.00
Legal Fees and Expenses*............................................. 400,000.00
Accounting Fees and Expenses*........................................ 200,000.00
Printing Expenses*................................................... 400,000.00
Miscellaneous*....................................................... 40,000.00
------------
Total........................................................... $1,143,750.00
============
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Ohio law, Ohio corporations are authorized to indemnify directors,
officers, employees, and agents within prescribed limits and must indemnify them
under certain circumstances. Ohio law does not provide statutory authorization
for a corporation to indemnify directors, officers, employees, and agents for
settlements, fines, or judgments in the context of derivative suits. However, it
provides that directors (but not officers, employees, and agents) are entitled
to mandatory advancement of expenses, including attorneys' fees, incurred in
defending any action, including derivative actions, brought against the
director, provided the director agrees to cooperate with the corporation
concerning the matter and to repay the amount advanced if it is proved by clear
and convincing evidence that his act or failure to act was done with deliberate
intent to cause injury to the corporation or with reckless disregard to the
corporation's best interests.
Ohio law does not authorize payment of judgments to a director, officer,
employee, or agent after a finding of negligence or misconduct in a derivative
suit absent a court order. Indemnification is permitted, however, to the extent
such person succeeds on the merits. In all other cases, if a director, officer,
employee, or agent acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, indemnification
is discretionary except as otherwise provided by a corporation's articles, code
of regulations, or by contract except with respect to the advancement of
expenses of directors.
Under Ohio law, a director is not liable for monetary damages unless it is
proved by clear and convincing evidence that his action or failure to act was
undertaken with deliberate intent to cause injury to the corporation or with
reckless disregard for the best interests of the corporation. There is, however,
no comparable provision limiting the liability of officers, employees, or agents
of a corporation. The statutory right to indemnification is not exclusive in
Ohio, and Ohio corporations may, among other things, procure insurance for such
persons.
Forest City's Code of Regulations provides that Forest City shall indemnify
any person made or threatened to be made a party to any action, suit, or
proceeding, other than an action by or in the right of Forest City, by reason of
the fact that he is or was a director, trustee, officer, employee, or agent of
Forest City or of any other bank, corporation, partnership, trust or other
enterprise for which he was serving as a director, officer, or employee at the
request of Forest City, against
II-1
<PAGE> 29
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of Forest City,
and with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful.
Under the terms of Forest City's directors' and officers' liability and
company reimbursement insurance policy, directors and officers of Forest City
are insured against certain liabilities, including liabilities arising under the
Securities Act.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------------------------------------------------------------
<C> <S> <C>
1.1 -- Form of Underwriting Agreement for Debt Securities incorporated by reference
to Exhibit 1.1 to the Registrant's Registration Statement on Form S-3 (No.
333-22695).
1.2 -- Form of Underwriting Agreement for Preferred Stock incorporated by reference
to Exhibit 1.2 to the Registrant's Registration Statement on Form S-3 (No.
333-22695).
1.3 -- Form of Underwriting Agreement for Class A Common Stock incorporated by
reference to Exhibit 1.3 to the Registrant's Registration Statement on Form
S-3 (No. 333-22695).
4.1 -- Form of Senior Subordinated Indenture between the Registrant and National
City Bank, as Trustee thereunder incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form S-3 (No. 333-22695).
4.2 -- Form of Junior Subordinated Indenture between the Registrant and National
City Bank, as Trustee thereunder incorporated by reference to Exhibit 4.2 to
the Registrant's Registration Statement on Form S-3 (No. 333-22695).
4.3 -- Form of Deposit Agreement, including form of Depositary Receipt incorporated
by reference to Exhibit 4.3 to the Registrant's Registration Statement on
Form S-3 (No. 333-22695).
4.4 -- Credit Agreement, dated as of July 25, 1994, among Forest City Rental
Properties Corporation, the banks named therein and Society National Bank, as
agent, incorporated by reference to Exhibit 10.1 to the Registrant's Form
10-Q for the quarter ended July 31, 1994 (File No. 1-4372).
4.5 -- Guaranty of Payment of Debt, dated as of July 25, 1994, between Forest City
Enterprises, Inc. and the banks named therein incorporated by reference to
Exhibit 10.2 to the Registrant's Form 10-Q for the quarter ended July 31,
1994 (File No. 1-4372).
4.6 -- First Amendment to Credit Agreement, dated as of September 12, 1995 among
Forest City Rental Properties Corporation, the banks named therein and
Society National Bank, as agent, incorporated by reference to Exhibit 10.3 to
the Registrant's Form 10-Q for the quarter ended October 31, 1995 (File No.
1-4372).
4.7 -- First Amendment to Guaranty of Payment of Debt, dated as of September 12,
1995, among Forest City Enterprises, Inc., the banks named therein and
Society National Bank, as agent, incorporated by reference to Exhibit 10.4 to
the Registrant's Form 10-Q for the quarter ended October 31, 1995 (File No.
1-4372).
4.8 -- Second Amendment to Credit Agreement, dated as of April 4, 1996, among Forest
City Rental Properties Corporation, the banks named therein and Society
National Bank, as agent, incorporated by reference to Exhibit 4.8 to the
Registrant's Registration Statement on Form S-3 (No. 333-22695).
</TABLE>
II-2
<PAGE> 30
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------------------------------------------------------------
<C> <S> <C>
4.9 -- Second Amendment to Guaranty of Payment of Debt, dated as of April 4, 1996,
among Forest City Enterprises, Inc., the banks named therein and Society
National Bank, as agent, incorporated by reference to Exhibit 10.6 to the
Registrant's Form 10-K for the fiscal year ended January 31, 1997 (File No.
1-4372).
4.10 -- Third Amendment to Credit Agreement, dated as of December 18, 1996, among
Forest City Rental Properties Corporation, the banks named therein and
KeyBank National Association, f/k/a Society National Bank, as agent,
incorporated by reference to Exhibit 4.10 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.11 -- Third Amendment to Guaranty of Payment of Debt, dated as of December 18,
1996, among Forest City Enterprises, Inc., the banks named therein and
KeyBank National Association, f/k/a Society National Bank, as agent,
incorporated by reference to Exhibit 4.11 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.12 -- Amended Articles of Incorporation of the Registrant, incorporated by
reference to Exhibit 3.1 to the Registrant's Form 10-Q for the quarter ended
October 31, 1983 (File No. 1-4372).
4.13 -- Code of Regulations of the Registrant, incorporated by reference to Exhibit
3.2 to the Registrant's Form 10-K for the fiscal year ended January 31, 1997
(File No. 1-4372).
*4.14 -- Certificate of Amendment by Shareholders to the Articles of Incorporation of
Forest City Enterprises, Inc. dated June 24, 1997.
4.15 -- Fourth Amendment to Credit Agreement, dated as of January 1, 1997, among
Forest City Rental Properties Corporation, the banks named therein and
KeyBank National Association, f/k/a Society National Bank, as agent,
incorporated by reference to Exhibit 10.36 to the Registrant's Form 10-Q for
the quarter ended July 31, 1997 (File No. 1-4372).
4.16 -- Fourth Amendment to Guaranty of Payment of Debt, dated as of January 1, 1997,
among Forest City Enterprises, Inc., the banks named therein and KeyBank
National Association, f/k/a Society National Bank, as agent, incorporated by
reference to Exhibit 10.37 to the Registrant's Form 10-Q for the quarter
ended July 31, 1997 (File No. 1-4372).
*5 -- Opinion of Jones, Day, Reavis & Pogue.
*12 -- Computation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Coopers & Lybrand, L.L.P.
*23.2 -- Consent of Jones, Day, Reavis & Pogue (contained in Exhibit 5).
*24 -- Powers of Attorney.
*25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
National City Bank, as Trustee under the Senior Subordinated Indenture.
*25.2 -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
National City Bank, as Trustee under the Junior Subordinated Indenture.
</TABLE>
- ---------------
* Filed herewith.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in said Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other
II-3
<PAGE> 31
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as a
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-4
<PAGE> 32
The undersigned Registrant hereby undertakes that:
For purposes of determining any liability under the Securities Act of 1933
(the "Securities Act"), each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be determined to be the initial
bona fide offering thereof.
II-5
<PAGE> 33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registrant
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, the State of Ohio, on December 3, 1997.
FOREST CITY ENTERPRISES, INC.
By: /s/ CHARLES A. RATNER
------------------------------------
Charles A. Ratner
President and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------------------------------------
<S> <C> <C>
* Co-Chairman of the Board December 3, 1997
- ---------------------------------------- and Director
Albert B. Ratner
* Co-Chairman of the Board, December 3, 1997
- ---------------------------------------- Treasurer and Director
Samuel H. Miller
/s/ CHARLES A. RATNER President, Chief Executive December 3, 1997
- ---------------------------------------- Officer and Director (Principal
Charles A. Ratner Executive Officer)
* Senior Vice President, Chief December 3, 1997
- ---------------------------------------- Financial Officer and Secretary
Thomas G. Smith (Principal Financial Officer)
* Vice President and Corporate December 3, 1997
- ---------------------------------------- Controller (Principal Accounting
Linda M. Kane Officer)
* Executive Vice President December 3, 1997
- ---------------------------------------- and Director
James A. Ratner
* Executive Vice President December 3, 1997
- ---------------------------------------- and Director
Ronald A. Ratner
* Director December 3, 1997
- ----------------------------------------
Joan K. Shafran
* Director December 3, 1997
- ----------------------------------------
J. Maurice Struchen
</TABLE>
II-6
<PAGE> 34
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------------------------------------
<S> <C> <C>
* Director December 3, 1997
- ----------------------------------------
Michael P. Esposito, Jr.
* Director December 3, 1997
- ----------------------------------------
Jerry V. Jarrett
* Director December 3, 1997
- ----------------------------------------
Scott S. Cowen
* Director December 3, 1997
- ----------------------------------------
Brian J. Ratner
* Director December 3, 1997
- ----------------------------------------
Deborah Ratner Salzberg
</TABLE>
- ---------------
* The undersigned, pursuant to a Power of Attorney executed by each of the
Directors and officers identified above and filed with the Securities and
Exchange Commission, by signing his name hereto, does hereby sign and execute
this Registration Statement on behalf of each of the persons noted above, in
the capacities indicated.
<TABLE>
<S> <C>
By: /s/ Charles A. Ratner December 3, 1997
-----------------------------------------
Charles A. Ratner, Attorney-in-Fact
</TABLE>
II-7
<PAGE> 35
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------------------------------------------------------------
<C> <S> <C> <C>
1.1 -- Form of Underwriting Agreement for Debt Securities incorporated by reference
to Exhibit 1.1 to the Registrant's Registration Statement on Form S-3 (No.
333-22695).
1.2 -- Form of Underwriting Agreement for Preferred Stock incorporated by reference
to Exhibit 1.2 to the Registrant's Registration Statement on Form S-3 (No.
333-22695).
1.3 -- Form of Underwriting Agreement for Class A Common Stock incorporated by
reference to Exhibit 1.3 to the Registrant's Registration Statement on Form
S-3 (No. 333-22695).
4.1 -- Form of Senior Subordinated Indenture between the Registrant and National
City Bank, as Trustee thereunder incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form S-3 (No. 333-22695).
4.2 -- Form of Junior Subordinated Indenture between the Registrant and National
City Bank, as Trustee thereunder incorporated by reference to Exhibit 4.2 to
the Registrant's Registration Statement on Form S-3 (No. 333-22695).
4.3 -- Form of Deposit Agreement, including form of Depositary Receipt incorporated
by reference to Exhibit 4.3 to the Registrant's Registration Statement on
Form S-3 (No. 333-22695).
4.4 -- Credit Agreement, dated as of July 25, 1994, among Forest City Rental
Properties Corporation, the banks named therein and Society National Bank, as
agent, incorporated by reference to Exhibit 10.1 to the Registrant's Form
10-Q for the quarter ended July 31, 1994 (File No. 1-4372).
4.5 -- Guaranty of Payment of Debt, dated as of July 25, 1994, between Forest City
Enterprises, Inc. and the banks named therein incorporated by reference to
Exhibit 10.2 to the Registrant's Form 10-Q for the quarter ended July 31,
1994 (File No. 1-4372).
4.6 -- First Amendment to Credit Agreement, dated as of September 12, 1995 among
Forest City Rental Properties Corporation, the banks named therein and
Society National Bank, as agent, incorporated by reference to Exhibit 10.3 to
the Registrant's Form 10-Q for the quarter ended October 31, 1995 (File No.
1-4372).
4.7 -- First Amendment to Guaranty of Payment of Debt, dated as of September 12,
1995, among Forest City Enterprises, Inc., the banks named therein and
Society National Bank, as agent, incorporated by reference to Exhibit 10.4 to
the Registrant's Form 10-Q for the quarter ended October 31, 1995 (File No.
1-4372).
4.8 -- Second Amendment to Credit Agreement, dated as of April 4, 1996, among Forest
City Rental Properties Corporation, the banks named therein and Society
National Bank, as agent, incorporated by reference to Exhibit 4.8 to the
Registrant's Registration Statement on Form S-3 (No. 333-22695).
4.9 -- Second Amendment to Guaranty of Payment of Debt, dated as of April 4, 1996,
among Forest City Enterprises, Inc., the banks named therein and Society
National Bank, as agent, incorporated by reference to Exhibit 10.6 to the
Registrant's Form 10-K for the fiscal year ended January 31, 1997 (File No.
1-4372).
4.10 -- Third Amendment to Credit Agreement, dated as of December 18, 1996, among
Forest City Rental Properties Corporation, the banks named therein and
KeyBank National Association, f/k/a Society National Bank, as agent,
incorporated by reference to Exhibit 4.10 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
</TABLE>
<PAGE> 36
EXHIBIT INDEX -- CONTINUED
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------------------------------------------------------------
<C> <S> <C> <C>
4.11 -- Third Amendment to Guaranty of Payment of Debt, dated as of December 18,
1996, among Forest City Enterprises, Inc., the banks named therein and
KeyBank National Association, f/k/a Society National Bank, as agent,
incorporated by reference to Exhibit 4.11 to the Registrant's Registration
Statement on Form S-3 (No. 333-22695).
4.12 -- Amended Articles of Incorporation of the Registrant, incorporated by
reference to Exhibit 3.1 to the Registrant's Form 10-Q for the quarter ended
October 31, 1983 (File No. 1-4372).
4.13 -- Code of Regulations of the Registrant, incorporated by reference to Exhibit
3.2 to the Registrant's Form 10-K for the fiscal year ended January 31, 1997
(File No. 1-4372).
*4.14 -- Certificate of Amendment by Shareholders to the Articles of Incorporation of
Forest City Enterprises, Inc. dated June 24, 1997.
4.15 -- Fourth Amendment to Credit Agreement, dated as of January 1, 1997, among
Forest City Rental Properties Corporation, the banks named therein and
KeyBank National Association, f/k/a Society National Bank, as agent,
incorporated by reference to Exhibit 10.36 to the Registrant's Form 10-Q for
the quarter ended July 31, 1997 (File No. 1-4372).
4.16 -- Fourth Amendment to Guaranty of Payment of Debt, dated as of January 1, 1997,
among Forest City Enterprises, Inc., the banks named therein and KeyBank
National Association, f/k/a Society National Bank, as agent, incorporated by
reference to Exhibit 10.37 to the Registrant's Form 10-Q for the quarter
ended July 31, 1997 (File No. 1-4372).
*5 -- Opinion of Jones, Day, Reavis & Pogue.
*12 -- Computation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Coopers & Lybrand, L.L.P.
*23.2 -- Consent of Jones, Day, Reavis & Pogue (contained in Exhibit 5).
*24 -- Powers of Attorney.
*25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
National City Bank, as Trustee under the Senior Subordinated Indenture.
*25.2 -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
National City Bank, as Trustee under the Junior Subordinated Indenture.
</TABLE>
- ---------------
* Filed herewith.
<PAGE> 1
Exhibit 4.14
[SEAL] Prescribed by
BOB TAFT, Secretary of State
30 East Broad Street, 14th Floor
Columbus, Ohio 43266-0418
CERTIFICATE OF AMENDMENT
BY SHAREHOLDERS TO THE ARTICLES OF INCORPORATION OF
FOREST CITY ENTERPRISES, INC.
- -----------------------------------------------------------------------
(Name of Corporation)
Charles A. Ratner , who is:
- -----------------------------------------------------------
Chief Executive Officer and
[ ] Chairman of the Board [X] President [ ] Vice President (Please check one.)
and Thomas G. Smith , who is:
------------------------------------------------------
[X] Secretary [ ] Assistant Secretary (Please check one.)
of the above named Ohio corporation organized for profit does hereby certify
that: (Please check the appropriate box and complete the appropriate
statements.)
[X] a meeting of the shareholders was duly called for the purpose of adopting
this amendment and held on June 10 , 1997 at which meeting
------------- ---
a quorum of the shareholders was present in person or by proxy, and by the
affirmative vote of the holders of shares entitling them to exercise 66%
----
of the voting power of the corporation.
[ ] In a writing signed by all of the shareholders who would be entitled to
notice of a meeting held for that purpose, the following resolution to amend
the articles was adopted: RESOLVED: That Section A of Article IV of the
Amended Articles of Incorporation shall
be amended to read as follows:
Article IV
Capital Stock
A. Authorized Shares
The number of shares which the Corporation is authorized to have issued and
outstanding is 71,000,000 shares, consisting of 48,000,000 shares of Class A
Common Stock with a par value of $.33 1/3 per share (hereinafter designated
"Class A Common Stock"), 18,000,000 shares of Class B Common Stock with a par
value of $.33 1/3 per share (hereinafter designated "Class B Common Stock"),
and 5,000,000 shares of Preferred Stock without par value (hereinafter
designated "Preferred Stock").
IN WITNESS WHEREOF, the above named officers, acting for and on the
behalf of the corporation, have hereto subscribed their names this
24th day of June , 1997.
------------------- ------------------------- ----
By /s/ Charles A. Ratner By /s/ Thomas G. Smith
-------------------------------- ----------------------------------
Charles A. Ratner, President and Thomas G. Smith, Secretary
Chief Executive Officer
NOTE: OHIO LAW DOES NOT PERMIT ONE OFFICER TO SIGN IN TWO CAPACITIES, TWO
SEPARATE SIGNATURES ARE REQUIRED, EVEN IF THIS NECESSITATES THE ELECTION OF A
SECOND OFFICER BEFORE THE FILING CAN BE MADE.
ISD FORM SHARE
<PAGE> 1
Exhibit 5
December 3, 1997
Forest City Enterprises, Inc.
1100 Terminal Tower
50 Public Square
Cleveland, OH 44113-2203
Re: $250,000,000 of Debt Securities and
Equity Securities of Forest City Enterprises, Inc.
--------------------------------------------------
Ladies and Gentlemen:
We are acting as counsel to Forest City Enterprises, Inc., an Ohio
corporation (the "Company"), in connection with the authorization of the
possible issuance and sale from time to time by the Company of certain debt
securities of the Company ("Debt Securities"), shares of Class A Common Stock,
par value $.33-1/3 per share, of the Company ("Common Stock"), shares of
Preferred Stock, without par value, of the Company ("Preferred Stock"), which
may be issued in the form of Depositary Shares ("Depositary Shares"), (the
Common Stock, the Preferred Stock and the Depositary Shares are referred to
collectively herein as "Equity Securities"), in each case as contemplated by the
Company's Registration Statement on Form S-3 (No. 333-______),
(the "Registration Statement"). Except as otherwise defined herein, capitalized
terms that are defined in the Registration Statement are used herein as so
defined.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions set forth below, we are of the opinion that:
1. The Debt Securities being registered pursuant to the
Registration Statement, when issued and delivered as contemplated by
the Registration Statement and upon receipt by the Company of such
lawful consideration therefor as the Company's Board of Directors (or a
duly authorized committee thereof) may determine, will constitute valid
and binding obligations of the Company.
2. The shares of Common Stock being registered pursuant to the
Registration Statement, when issued and delivered as contemplated by
the Registration Statement and upon receipt by the Company of such
lawful consideration therefor having a value not less than the par
value thereof as the
<PAGE> 2
Forest City Enterprises
December 3, 1997
Page 2
Company's Board of Directors (or a duly authorized committee thereof)
may determine, will be validly issued, fully paid, and nonassessable.
3. The shares of Preferred Stock being registered pursuant to
the Registration Statement, when issued and delivered as contemplated
by the Registration Statement and upon receipt by the Company of such
lawful consideration therefor as the Company's Board of Directors (or a
duly authorized committee thereof) may determine, will be validly
issued, fully paid, and nonassessable.
4. The Depositary Shares being registered pursuant to the
Registration Statement, when issued and delivered as contemplated by
the Registration Statement and upon receipt by the Company of such
lawful consideration therefor as the Company's Board of directors may
determine, will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto, will have become effective,
(ii) a Prospectus Supplement describing each class and/or series of Debt
Securities or Equity Securities offered pursuant to the Registration Statement
(the "Offered Securities") will have been filed with the Securities and Exchange
Commission (the "Commission"), (iii) the definitive terms of each class and/or
series of Offered Securities will have been established in accordance with the
authorizing resolutions of the Company's Board of Directors, the Company's
Articles of Incorporation, and applicable law, (iv) any Offered Securities
consisting of Common Stock or Preferred Stock, including Common Stock or
Preferred Stock issuable upon conversion, exchange, or exercise of any other
security, will have been duly authorized and reserved for issuance from the
applicable class of capital stock of the Company, in each case within the limits
of such class of capital stock then remaining authorized but unissued, (v)
resolutions authorizing the Company to issue, offer, and sell the Offered
Securities will have been adopted by the Company's Board of Directors and will
be in full force and effect at all times at which the Offered Securities are
offered or sold by the Company, and (vi) all Offered Securities will be issued
in compliance with applicable federal and state securities laws.
With respect to any Offered Securities consisting of any series of Debt
Securities, we have further assumed that (i) an Indenture with respect to such
Debt Securities will have been duly executed and delivered by the Company and
the applicable Trustee in a form approved by us, and such Indenture will have
been qualified under the Trust Indenture Act of 1939, as amended, (ii) all terms
of such Debt Securities not provided for in the applicable Indenture will have
been established in accordance with the provision of the applicable Indenture
and reflected in appropriate documentation approved by us and, if applicable,
duly executed and delivered by the Company and the applicable Trustee, (iii)
such Debt Securities will be duly executed, authenticated, issued, and delivered
in accordance with the provisions of the applicable Indenture,
<PAGE> 3
Forest City Enterprises
December 3, 1997
Page 3
and (iv) the interest rate on any such Debt Securities will not be higher than
the maximum lawful rate permitted from time to time under applicable by law.
In rendering the foregoing opinion, we have relied as to certain
factual matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. In rendering the foregoing opinion, our examination of matters of law
has been limited to the laws of the General Corporation Law of the State of
Ohio, and the federal laws of the United States of America, as in effect on the
date hereof.
We understand that prior to offering for sale any Offered Securities
you will advise us in writing of the terms thereof, will afford us an
opportunity to review the operative documents (including the applicable
Prospectus Supplement) pursuant to which such Offered Securities are to be
offered and issued, and will file as an exhibit to the Registration Statement
such supplement or amendment to this opinion (if any) as we may reasonably
consider necessary or appropriate by reason of the terms of such Offered
Securities or any changes in the Company's capital structure or other pertinent
circumstances.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to us in the Prospectus under the
caption "Legal Matters."
Very truly yours,
Jones, Day, Reavis & Pogue
<PAGE> 1
EXHIBIT 12
FOREST CITY ENTERPRISES, INC.
STATEMENT OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS SIX MONTHS FISCAL YEAR ENDED JANUARY 31,
ENDED ENDED --------------------------------------------------------
JULY 31, 1997 JULY 31, 1996 1997 1996 1995 1994 1993
------------- ------------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings (loss) from
continuing operations
before income taxes and
extraordinary gain..... $ (13,128) $ 4,530 $ 22,122 $ 17,562 $(24,497) $ 6,536 $ 23,151
Adjustments to earnings
(loss):
Interest incurred, net
of capitalized
interest............. 63,606 66,550 133,364 130,001 116,821 111,494 111,309
Amortization of loan
procurement costs
(a).................. 2,667 4,818 11,901 6,873 7,141 8,896 5,769
Previously capitalized
interest amortized
into earnings (b).... 1,838 1,817 3,674 3,580 3,439 3,655 3,528
Change in undistributed
earnings of entities
accounted for under
the equity method.... 64 (19) (38) 2,106 (76) 1,859 (446)
Portion of rents
representative of
interest factor
(c).................. 1,385 1,344 2,589 1,692 1,436 3,166 3,555
Equity method losses
where debt
obligations are not
guaranteed........... 1,221 50 101 201 79 27 35
--------- ------- -------- -------- -------- -------- --------
Earnings, as adjusted...... $ 57,653 $79,090 $173,713 $162,015 $104,343 $135,633 $146,901
========= ======= ======== ======== ======== ======== ========
Fixed charges:
Interest expensed...... $ 63,606 $66,550 $133,364 $130,001 $116,821 $111,494 $111,309
Interest capitalized... 7,267 4,940 8,025 9,362 7,049 6,332 15,446
Amortization of loan
procurement costs
(a).................. 2,667 4,818 11,901 6,873 7,141 8,896 5,769
Portion of rents
representative of
interest factor
(c).................. 1,385 1,344 2,589 1,692 1,436 3,166 3,555
--------- ------- -------- -------- -------- -------- --------
Total fixed charges (d).... $ 74,925 $77,652 $155,879 $147,928 $132,447 $129,888 $136,079
========= ======= ======== ======== ======== ======== ========
Ratio of earnings to fixed
charges (e).............. -- 1.02 1.11 1.10 -- 1.04 1.08
========= ======= ======== ======== ======== ======== ========
</TABLE>
(a) A portion of loan procurement cost amortization was estimated based on costs
capitalized to date, the Company's amortization policy and historical
nonrecourse debt balances.
(b) Previously capitalized interest amortized into earnings was estimated by
analyzing interest costs capitalized since January 31, 1974 and the
Company's depreciation policy.
(c) Portion of rents representative of interest factor was estimated by applying
an estimated interest percentage to actual rent expense.
(d) Total fixed charges exceeded the Company's adjusted earnings by $17 million
and $28 million for the six months ended July 31, 1997 and the fiscal year
ended January 31, 1995, respectively. For the six months ended July 31,
1997, earnings, as adjusted, includes income of $15 million from a lawsuit
settlement related to Toscana, a 563-unit apartment complex, and a $39
million loss related to sales of Toscana ($36 million) and a partnership
interest ($3 million), but does not include an extraordinary gain of $18
million related to the sale of Toscana. For the year ended January 31, 1995,
earnings, as adjusted, includes a loss of $31 million related to the sale of
Park LaBrea Towers, but does not include an extraordinary gain of $60
million, also related to the sale of Park LaBrea Towers.
(e) The Company has sources of funds other than earnings from operations,
principally from depreciation and amortization, that are available to cover
fixed charges.
<PAGE> 1
Exhibit 23.1
[COOPERS & LYBRAND LOGO] Coopers & Lybrand L.L.P.
a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Forest City Enterprises, Inc. and subsidiaries on Form S-3 of our report dated
March 13, 1997, on our audits of the consolidated financial statements and
financial statement schedules of Forest City Enterprises, Inc. and subsidiaries
as of January 31, 1997 and 1996 and for the years ended January 31, 1997, 1996,
and 1995. We also consent to the reference to our firm under the caption
"Experts".
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Cleveland, Ohio
December 1, 1997
<PAGE> 1
Exhibit 24
DIRECTOR AND OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director and Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints
Charles A. Ratner, Thomas G. Smith and William M. Warren, or any of them, with
full power of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 19, 1997.
/s/ Samuel H. Miller
------------------------------------------
Samuel H. Miller, Director, Treasurer and
Co-Chairman of the Board
<PAGE> 2
DIRECTOR AND OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director and Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints
Thomas G. Smith and William M. Warren, or either of them, with full power of
substitution and resubstitution, as attorneys or attorney of the undersigned,
for him or her and in his or her name, place and stead, to sign and file under
the Securities Exchange Act of 1933 one or more Registration Statement(s) on
Form S-3 relating to the registration for sale of the Corporation's debt and/or
equity securities, and any and all amendments, supplements and exhibits thereto,
including pre-effective and post-effective amendments or supplements, and any
and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining to such registration(s), with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done in the premises, hereby ratifying and approving the act of
said attorneys and either of them and any such substitute.
EXECUTED as of November 21, 1997.
/s/ Charles A. Ratner
--------------------------------------------
Charles A. Ratner, Director, Chief Executive
Officer and President
<PAGE> 3
DIRECTOR AND OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director and Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints
Charles A. Ratner, Thomas G. Smith and William M. Warren, or any of them, with
full power of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 21, 1997.
/s/ Albert B. Ratner
------------------------------------------
Albert B. Ratner, Director and Co-Chairman
of the Board
<PAGE> 4
DIRECTOR OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 18, 1997.
/s/ Jerry V. Jarrett
-------------------------------------
Jerry V. Jarrett, Director
<PAGE> 5
DIRECTOR OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 19, 1997.
/s/ Michael P. Esposito, Jr.
------------------------------------------
Michael P. Esposito, Jr., Director
<PAGE> 6
OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Officer of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 19, 1997.
/s/ Linda M. Kane
-------------------------------------
Linda M. Kane, Vice President and
Corporate Controller
<PAGE> 7
DIRECTOR OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 18, 1997.
/s/ Scott S. Cowen
------------------------------------------
Scott S. Cowen, Director
<PAGE> 8
DIRECTOR OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 18, 1997.
/s/ Deborah Ratner Salzberg
-------------------------------------
Deborah Ratner Salzberg,
Director
<PAGE> 9
DIRECTOR OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 18, 1997.
/s/ Joan Shafran
------------------------------------------
Joan Shafran, Director
<PAGE> 10
DIRECTOR OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director of Forest City Enterprises, Inc., an Ohio
corporation (the "Corporation"), hereby constitutes and appoints Charles A.
Ratner, Thomas G. Smith and William M. Warren, or any of them, with full power
of substitution and resubstitution, as attorneys or attorney of the undersigned,
for him or her and in his or her name, place and stead, to sign and file under
the Securities Exchange Act of 1933 one or more Registration Statement(s) on
Form S-3 relating to the registration for sale of the Corporation's debt and/or
equity securities, and any and all amendments, supplements and exhibits thereto,
including pre-effective and post-effective amendments or supplements, and any
and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining to such registration(s), with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done in the premises, hereby ratifying and approving the act of
said attorneys and any of them and any such substitute.
EXECUTED as of November 18, 1997.
/s/ J Maurice Struchen
-------------------------------------
J Maurice Struchen, Director
<PAGE> 11
DIRECTOR AND OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director and Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints
Charles A. Ratner, Thomas G. Smith and William M. Warren, or any of them, with
full power of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 19, 1997.
/s/ James A. Ratner
------------------------------------------
James A. Ratner, Director and Executive
Vice President
<PAGE> 12
OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints Charles
A. Ratner and William M. Warren, or either of them, with full power of
substitution and resubstitution, as attorneys or attorney of the undersigned,
for him or her and in his or her name, place and stead, to sign and file under
the Securities Exchange Act of 1933 one or more Registration Statement(s) on
Form S-3 relating to the registration for sale of the Corporation's debt and/or
equity securities, and any and all amendments, supplements and exhibits thereto,
including pre-effective and post-effective amendments or supplements, and any
and all applications or other documents to be filed with the Securities and
Exchange Commission pertaining to such registration(s), with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done in the premises, hereby ratifying and approving the act of
said attorneys and either of them and any such substitute.
EXECUTED as of November 19, 1997.
/s/ Thomas G. Smith
--------------------------------------------
Thomas G. Smith, Chief Financial
Officer, Senior Vice President and Secretary
<PAGE> 13
DIRECTOR AND OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director and Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints
Charles A. Ratner, Thomas G. Smith and William M. Warren, or any of them, with
full power of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 19, 1997.
/s/ Brian J. Ratner
------------------------------------------
Brian J. Ratner, Director and Senior Vice
President
<PAGE> 14
DIRECTOR AND OFFICER OF
FOREST CITY ENTERPRISES, INC.
REGISTRATION STATEMENT ON FORM S-3
POWER OF ATTORNEY
The undersigned Director and Officer of Forest City Enterprises, Inc.,
an Ohio corporation (the "Corporation"), hereby constitutes and appoints
Charles A. Ratner, Thomas G. Smith and William M. Warren, or any of them, with
full power of substitution and resubstitution, as attorneys or attorney of the
undersigned, for him or her and in his or her name, place and stead, to sign
and file under the Securities Exchange Act of 1933 one or more Registration
Statement(s) on Form S-3 relating to the registration for sale of the
Corporation's debt and/or equity securities, and any and all amendments,
supplements and exhibits thereto, including pre-effective and post-effective
amendments or supplements, and any and all applications or other documents to
be filed with the Securities and Exchange Commission pertaining to such
registration(s), with full power and authority to do and perform any and all
acts and things whatsoever required and necessary to be done in the premises,
hereby ratifying and approving the act of said attorneys and any of them and
any such substitute.
EXECUTED as of November 19, 1997.
/s/ Ronald A. Ratner
----------------------------------------
Ronald A. Ratner, Director and Executive
Vice President
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee pursuant
to section 305(b) (2)
NATIONAL CITY BANK
(Exact name of Trustee as specified in its charter)
34-0420310
(I.R.S. Employer Identification No.)
1900 East Ninth Street Cleveland, Ohio 44114
(Address of principal executive (zip code)
offices)
David L. Zoeller
Senior Vice President and General Counsel
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114
(216) 575-9313
(Name, address and telephone number of agent for service)
----------
FOREST CITY ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
OHIO 34-0863886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113-2203
(Address of principal (zip code)
executive offices)
Senior Subordinated Securities
(Title of the Indenture securities)
<PAGE> 2
GENERAL
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
The Federal Reserve Bank of Cleveland, Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
National City Bank is authorized to exercise corporate trust powers.
2. Affiliations with obligor. If the obligor is an affiliate of the trustee,
describe such affiliation.
NONE
16. List of exhibits
(1) A copy of the Articles of Association of the Trustee.
Incorporated herein by reference is Charter No. 786 Merger No. 1043
the Articles of Association of National City Bank, which Articles of
Association were included as a part of Exhibit 1 to Form T-1 filing
made by said National City Bank with the Securities and Exchange
Commission in November 1973 (File No. 2-49786).
Incorporated herein by reference is an amendment to the Articles of
Association of National City Bank, which amendment was included as a
part of Exhibit 1 to Form T-1 filing made by said National City Bank
with the Securities and Exchange Commission in April 1996 (File No.
333-02761)
(2) A copy of the certificate of authority of the Trustee to commence
business:
(a) a copy of the certificate of NCB National Bank to commence
business.
<PAGE> 3
Incorporated herein by reference is a true and correct copy of the
certificate issued by the Comptroller of the Currency under date of
April 26, 1973, whereby NCB National Bank was authorized to commence
the business of banking as a National banking Association, which true
copy of said Certificate was included as Exhibit 2(a) to Form T-1
filing made by said National City Bank with the Securities and
Exchange Commission in November 1973 (File 2-49786)
(b) a copy of the approval of the merger of The National City Bank of
Cleveland into NCB National Bank under the charter of NCB
National Bank and under the title "National City Bank."
Incorporated herein by reference is a true and correct copy of the
certificate issued by the Comptroller of the Currency under date of
April 27, 1973, whereby the National City Bank of Cleveland was merged
into NCB National Bank, which true copy of said certificate was
included as Exhibit 2(b) to Form T-1 filing made by said National City
Bank with the Securities and Exchange Commission in November 1973
(File 2-49786).
(3) A copy of the authorization of the Trustee to exercise corporate trust
powers.
Incorporated herein by reference is a true and correct copy of the
certificate dated April 13, 1973 issued by the Comptroller of the
Currency whereby said National City Bank has been granted the right to
exercise certain trust powers, which true copy of said certificate was
included as Exhibit 3 to Form T-1 filing made by said National City
Bank with the Securities and Exchange Commission in November 1973
(File 2-49786).
(4) A copy of existing By-Laws of the Trustee.
Incorporated herein by reference is a true and correct copy of the
National City Bank By-Laws as amended through January 1, 1993. This
true copy of said By-Laws was included as Exhibit 4 to Form T-1 filing
made by National City Bank with the Securities and Exchange Commission
in March, 1995 (File 22-26594).
(5) Not applicable.
<PAGE> 4
(6) Consent of the United States Institutional Trustee required by Section
321(b) of the Act.
Attached hereto as Exhibit 6 is the Consent of the Trustee in
accordance with Section 321 (b) of the Trust Indenture Act of 1939 as
amended.
(7) A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
Attached hereto as Exhibit 7 is the latest report of condition of
National City Bank.
(8) Not applicable.
(9) Not applicable.
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, National City Bank, a national banking association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Cleveland, and State of Ohio, on
the 3rd day of December, 1997.
NATIONAL CITY BANK
By:
------------------------
Janet A. Schwartz
Vice President
<PAGE> 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
as amended, and to the extent required thereby to enable it to act as an
indenture trustee, National City Bank hereby consents as of the date hereof that
reports of examinations of it by the Treasury Department, the Comptroller of the
Currency, the Board of Governors of the Federal Reserve Banks, the Federal
Deposit Insurance Corporation or of any other Federal or State authority having
the right to examine National City Bank, may be furnished by similar authorities
to the Securities and Exchange Commission upon request thereon.
NATIONAL CITY BANK
By /s/ Janet A. Schwartz
-----------------------
Janet A. Schwartz
Vice President
<PAGE> 7
<TABLE>
<CAPTION>
NATIONAL CITY BANK
CLEVELAND, OHIO
RECEIVED
NOV 03 1997
CORPORATE
TRUST
REPORT OF CONDITION
-------------------
NATIONAL CITY BANK
------------------
(Including Domestic and Foreign Subsidiaries)
Of Cleveland, In the State of Ohio, at the close of business on September 30,
1997, published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161.
ASSETS
------
(In Thousands)
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................................. $538,594
Interest-bearing balances........................................................... 1,631
Securities:
Held-to-maturity securities......................................................... 0
Available-for-sale securities....................................................... 1,601,292
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs......... 1,487,835
Loans and lease financing receivables:
Loans and leases, net of unearned income................................ $7,284,006
Less: Allowance for loan and lease losses............................... 110,781
Loans and leases, net of unearned income and allowance.............................. 7,173,225
Assets held in trading accounts....................................................... 558
Premises and fixed assets (including capitalized leases).............................. 123,161
Other real estate owned............................................................... 1,369
Customers' liability to this bank on acceptances outstanding.......................... 43,578
Intangible assets..................................................................... 193
Other assets.......................................................................... 531,010
-----------
TOTAL ASSETS........................................................................ $11,502,446
===========
LIABILITIES
-----------
Deposits:
In domestic offices................................................................. $5,855,829
Non-interest bearing.................................................. $1,651,130
Interest-bearing...................................................... 4,204,699
In foreign offices, Edge and Agreement subsidiaries, and IBFs....................... 468,214
Interest-bearing...................................................... 468,214
Federal funds purchased and securities sold under agreements to repurchase............ 1,650,920
Demand notes issued to the U.S. Treasury.............................................. 235,028
Trading Liabilities................................................................... 0
Other borrowed money:
With a remaining maturity of one year or less....................................... 650,701
With a remaining maturity of more than one year through three years................. 249,613
With a remaining maturity of more than three years.................................. 1,101,407
Bank's liability on acceptances executed and outstanding.............................. 43,578
Subordinated notes and debentures..................................................... 174,272
Other liabilities..................................................................... 317,924
-----------
TOTAL LIABILITIES................................................................... 10,747,486
-----------
EQUITY CAPITAL
--------------
Common Stock.......................................................................... 7,436
Surplus............................................................................... 55,822
Undivided profits and capital reserves................................................ 687,083
Net unrealized holding gains (losses) on available-for-sale securities................ 4,619
-----------
TOTAL EQUITY CAPITAL................................................................ 754,960
-----------
TOTAL LIABILITIES AND EQUITY CAPITAL................................................ $11,502,446
===========
I, Gary M. Small, Vice President and Chief Financial Officer of the above named
bank do hereby declare that this Report of Condition is true and correct to the
best of my knowledge and belief.
Gary M. Small
</TABLE>
<PAGE> 1
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee pursuant to
section 305(b) (2)
NATIONAL CITY BANK
( Exact name of Trustee as specified in its charter)
34-0420310
(I.R.S. Employer Identification No.)
1900 East Ninth Street
Cleveland, Ohio 44114
(Address of principal executive (zip code)
offices)
David L. Zoeller
Senior Vice President and General Counsel
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114
(216) 575-9313
(Name, address and telephone number of agent for service)
----------
FOREST CITY ENTERPRISES, INC.
(Exact name of obligor as specified in its charter)
OHIO 34-0863886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113-2203
(Address of principal (zip code)
executive offices)
Junior Subordinated Securities
(Title of the Indenture securities)
<PAGE> 2
GENERAL
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
The Federal Reserve Bank of Cleveland, Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
National City Bank is authorized to exercise corporate trust powers.
2. Affiliations with obligor. If the obligor is an affiliate of the trustee,
describe such affiliation.
NONE
16. List of exhibits
(1) A copy of the Articles of Association of the Trustee.
Incorporated herein by reference is Charter No. 786 Merger No. 1043
the Articles of Association of National City Bank, which Articles of
Association were included as a part of Exhibit 1 to Form T-1 filing
made by said National City Bank with the Securities and Exchange
Commission in November 1973 (File No. 2-49786).
Incorporated herein by reference is an amendment to the Articles of
Association of National City Bank, which amendment was included as a
part of Exhibit 1 to Form T-1 filing made by said National City Bank
with the Securities and Exchange Commission in April 1996 (File No.
333-02761)
(2) A copy of the certificate of authority of the Trustee to commence
business:
(a) a copy of the certificate of NCB National Bank to commence
business.
<PAGE> 3
Incorporated herein by reference is a true and correct copy of the
certificate issued by the Comptroller of the Currency under date of
April 26, 1973, whereby NCB National Bank was authorized to commence
the business of banking as a National banking Association, which true
copy of said Certificate was included as Exhibit 2(a) to Form T-1
filing made by said National City Bank with the Securities and
Exchange Commission in November 1973 (File 2-49786)
(b) a copy of the approval of the merger of The National City Bank of
Cleveland into NCB National Bank under the charter of NCB
National Bank and under the title "National City Bank."
Incorporated herein by reference is a true and correct copy of the
certificate issued by the Comptroller of the Currency under date of
April 27, 1973, whereby the National City Bank of Cleveland was merged
into NCB National Bank, which true copy of said certificate was
included as Exhibit 2(b) to Form T-1 filing made by said National City
Bank with the Securities and Exchange Commission in November 1973
(File 2-49786).
(3) A copy of the authorization of the Trustee to exercise corporate trust
powers.
Incorporated herein by reference is a true and correct copy of the
certificate dated April 13, 1973 issued by the Comptroller of the
Currency whereby said National City Bank has been granted the right to
exercise certain trust powers, which true copy of said certificate was
included as Exhibit 3 to Form T-1 filing made by said National City
Bank with the Securities and Exchange Commission in November 1973
(File 2-49786).
(4) A copy of existing By-Laws of the Trustee.
Incorporated herein by reference is a true and correct copy of the
National City Bank By-Laws as amended through January 1, 1993. This
true copy of said By-Laws was included as Exhibit 4 to Form T-1 filing
made by National City Bank with the Securities and Exchange Commission
in March, 1995 (File 22-26594).
(5) Not applicable.
<PAGE> 4
(6) Consent of the United States Institutional Trustee required by Section
321(b) of the Act.
Attached hereto as Exhibit 6 is the Consent of the Trustee in
accordance with Section 321 (b) of the Trust Indenture Act of 1939 as
amended.
(7) A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
Attached hereto as Exhibit 7 is the latest report of condition of
National City Bank.
(8) Not applicable.
(9) Not applicable.
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, National City Bank, a national banking association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Cleveland, and State of Ohio, on
the 3rd day of December, 1997.
NATIONAL CITY BANK
By: /s/ Janet A. Schwartz
-------------------------
Janet A. Schwartz
Vice President
<PAGE> 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
as amended, and to the extent required thereby to enable it to act as an
indenture trustee, National City Bank hereby consents as of the date hereof that
reports of examinations of it by the Treasury Department, the Comptroller of the
Currency, the Board of Governors of the Federal Reserve Banks, the Federal
Deposit Insurance Corporation or of any other Federal or State authority having
the right to examine National City Bank, may be furnished by similar authorities
to the Securities and Exchange Commission upon request thereon.
NATIONAL CITY BANK
By /s/ Janet A. Schwartz
-----------------------------
Janet A. Schwartz
Vice President
<PAGE> 7
<TABLE>
<CAPTION>
NATIONAL CITY BANK
CLEVELAND, OHIO
RECEIVED
NOV 03 1997
REPORT OF CONDITION CORPORATE
------------------- TRUST
NATIONAL CITY BANK
------------------
(Including Domestic and Foreign Subsidiaries)
Of Cleveland, in the State of Ohio, at the close of business on September 30, 1997,
published in response to call made by Comptroller of the Currency, under Title 12,
United Stated Code, Section 161.
ASSETS
------
(In Thousands)
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin....................................... $ 538,594
Interest-bearing balances................................................................ 1,631
Securities:
Held-to-maturity securities.............................................................. 0
Available-for-sale securities............................................................ 1,601,292
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its EDGE and Agreement subsidiaries, and in IBFs.............. 1,487,835
Loans and lease financing receivables:
Loans and leases, net of unearned income.................................... $7,284,006
Less: Allowance for loan and lease losses................................... 110,781
Loans and leases, net of unearned income and allowance................................... 7,173,225
Assets held in trading accounts............................................................. 558
Premises and fixed assets (including capitalized leases).................................... 123,161
Other real estate owned..................................................................... 1,369
Customers' liability to this bank on acceptance outstanding................................. 45,578
Intangible assets........................................................................... 193
Other assets................................................................................ 531,010
--------------
TOTAL ASSETS............................................................................ $11,502,446
==============
LIABILITIES
-----------
Deposits:
In domestic offices...................................................................... $ 5,855,829
Non-interest bearing..................................................... $1,651,130
Interest-bearing......................................................... 4,204,699
In foreign offices, Edge and Agreement subsidiaries, and IBFs............................... 468,214
Interest-bearing......................................................... 468,214
Federal funds purchased and securities sold under agreements to repurchase.................. 1,650,920
Demand notes issued to the U.S. Treasury.................................................... 235,028
Trading Liabilities......................................................................... 0
Other borrowed money:
With a remaining maturity of one year or less............................................ 650,701
With a remaining maturity of more than one year through three years...................... 249,613
With a remaining maturity of more than three years....................................... 1,101,407
Bank's liability on acceptances executed and outstanding.................................... 43,578
Subordinated notes and debentures........................................................... 174,272
Other liabilities........................................................................... 317,924
--------------
TOTAL LIABILITIES........................................................................ 10,747,486
==============
EQUITY CAPITAL
--------------
Common Stock................................................................................ 7,436
Surplus..................................................................................... 55,822
Undivided profits and capital reserves...................................................... 687,083
Net unrealized holding gains (losses) on available-for-sale securities...................... 4,619
--------------
TOTAL EQUITY CAPITAL..................................................................... 754,960
--------------
TOTAL LIABILITIES AND EQUITY CAPITAL..................................................... $11,502,446
==============
I, Gary M. Small, Vice President and Chief Financial Officer of the above named bank do hereby declare
that this Report of Condition is true and correct to the best of my knowledge and belief.
Gary M. Small
</TABLE>
