FOURTH AMENDMENT TO GUARANTY OF PAYMENT OF DEBT
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THIS FOURTH AMENDMENT TO GUARANTY OF PAYMENT
OF DEBT is made and entered into as of the lst day of January, 1997 by and
among FOREST CITY ENTERPRISES, INC., an Ohio corporation ("Parent"),
NATIONAL CITY BANK, THE HUNTINGTON NATIONAL BANK, COMERICA BANK, FIRST
NATIONAL BANK OF OHIO, AND KEYBANK NATIONAL ASSOCIATION, f/k/a/ SOCIETY
NATIONAL BANK (collectively the "Banks" and individually a "Bank"), and
KEYBANK NATIONAL ASSOCIATION f/k/a/ SOCIETY NATIONAL BANK, as Agent for
the Banks (the "Agent").
W I T N E S S E T H:
WHEREAS, Forest City Rental Properties Corporation
("Borrower"), the Banks, and the Agent entered into a certain Credit
Agreement dated as of July 25, 1994 (the "Credit Agreement");
WHEREAS, the Banks required, as a condition to entering into
the Credit Agreement, that Parent execute and deliver to the Agent and the
Banks a certain Guaranty of Payment of Debt dated July 25, 1994 (the
"Guaranty") and Parent agreed to and did execute and deliver the Guaranty
to the Agent and the Banks;
WHEREAS, Borrower, the Banks and the Agent entered into First,
Second and Third Amendments to Credit Agreement dated as of September 12,
1995, April 4, 1996, and December 18, 1996, respectively, amending the
Credit Agreement as therein provided and Borrower, Parent, the Banks and
the Agent entered into First, Second and Third Amendments to Guaranty of
Payment of Debt dated as of September 12, 1995, April 4, 1996, and
December 18, 1996, respectively, a letter agreement, dated as of May 22,
1997, and each amending the Guaranty of Payment of Debt as therein
provided (as so amended, the "Guaranty"); and
WHEREAS, Borrower, Parent, the Banks, and the Agent desire to
make certain additional amendments to the Guaranty;
NOW, THEREFORE, it is mutually agreed as follows:
1. AMENDMENTS.
(a) Section 7 is amended by adding the following paragraph
at the end of such Section:
Guarantor further represents and warrants that Guarantor has
provided to the Bank three copies of all promissory notes or
other writings evidencing any Trading Loans outstanding on the
date hereof and that Guarantor has no other intercompany
indebtedness for borrowed money or funded indebtedness
outstanding from any subsidiary.
(b) Section 9.10(d) is amended by replacing the words
"clause (f) of Section 9.13 hereof" with "clause (f) of Section 9.12
hereof" and by replacing the words "One Million Five Hundred Thousand
Dollars ($1,500,000)" with the words "Four Million Five Hundred
Thousand Dollars ($4,500,000)".
(c) Section 9.10 is amended further by deleting the word
"or" at the end of clause (e) thereof, by replacing the period at the
end of clause (f) thereof with a comma and adding the following new
clause (g) thereto:
(g) any loans that are now or hereafter outstanding from
Forest City Trading Group, Inc. (but not from any other
lender, whether or not such lender is a Subsidiary of
Guarantor) to Guarantor, provided that each of the following
conditions is satisfied as to any and all such loans
(individually, a "Trading Loan" and, collectively, the
"Trading Loans") :
(i) the aggregate of all the Trading Loans may not
exceed Ten Million Dollars ($10,000,000);
(ii) no interest shall accrue or be payable with respect
to any Trading Loan;
(iii) there shall be no scheduled principal payments
prior to the maturity date of any Trading Loan, as any such
Revolving Note or Term Note may be extended from time to
time; no principal payments shall be made on any Trading
Loan at any time that an Event of Default or Possible
Default exists under the Guaranty or the Agreement, or at
any time that the Agent has determined, in its sole
discretion, that there has been a material adverse change in
the financial condition of the Guarantor; and the Trading
Loans, either individually or in the aggregate, shall not be
revolving loans and, if any principal payments are made on
any Trading Loan, the Ten Million Dollar ($10,000,000)
maximum amount of permissible Trading Loans set forth above
shall automatically and irrevocably decline by like amount
upon such payment;
(iv) each Trading Loan shall be expressly subordinate in
right of payment to the prior payment in full of the
indebtedness under the Guaranty or the Agreement, whether
arising due to a Term Loan, a Revolving Loan or otherwise;
(v) an event of default as to any Trading Loan(s) will
automatically constitute an Event of Default under the
Agreement, the Term Notes, the Revolving Notes and the
Guaranty; and
(vi) each Trading Loan shall be evidenced by a written
promissory note, including the terms set forth above in
clauses (i)- (v) and otherwise in form and substance
approved in advance by the Agent, executed on behalf of
Guarantor and Forest City Trading Group, Inc. and, in the
case of any Trading Loan(s) on or after the date hereof,
executed by such parties not later than the date of the
first disbursement of such Trading Loan, a copy of which
note shall be provided to the Agent within ten (10) days
after execution.
2. DEFINITIONS. Terms used in this Fourth Amendment to
Guaranty of Payment of Debt that are defined in the Guaranty or the Credit
Agreement shall have the respective meanings ascribed to them in the
Guaranty or the Credit Agreement, as the case may be.
3. REPRESENTATIONS AND WARRANTIES. Parent represents and
warrants to the Agent and each of the banks that all of the
representations and warranties of the Parent set forth in Section 7 of the
Guaranty are true and correct on and as of the date hereof and that no
Event of Default or Possible Default exists on such date.
4. NO WAIVER. The acceptance, execution and/or delivery of the
Fourth Amendment to Guaranty of Payment of Debt by the Agent and the Banks
shall not constitute a waiver or release of any obligation or liability of
the Parent under the Guaranty as in effect prior to the effectiveness of
this Fourth Amendment to Guaranty of Payment of Debt or as amended hereby
or waive or release any Event of Default or Possible Default existing at
any time.
5. CONDITIONS TO EFFECTIVENESS. The amendments to the Guaranty
herein provided for shall become effective upon receipt by the Agent and
the Banks of such opinions of counsel to the Borrower and the Parent,
certified copies of resolutions of the boards of directors of the Borrower
and the Parent, and such other documents as shall be required by the
Agent, the Banks, or their respective counsel to evidence and confirm the
due authorization, execution, and delivery of this Fourth Amendment to
Guaranty of Payment of Debt.
6. CONFIRMATION OF GUARANTY. The Parent hereby confirms that the
Guaranty is in full force and effect on the date hereof, and that, upon
the amendment herein provided becoming effective, the Guaranty will
continue in full force and effect in accordance with its terms, as hereby
amended.
IN WITNESS WHEREOF, the parties hereto, each by an officer
thereunto duly authorized, have caused this Fourth Amendment to Guaranty
of Payment of Debt to be executed and delivered as of the date first above
written.
FOREST CITY ENTERPRISES, INC. THE HUNTINGTON NATIONAL BANK
By: ________________________ By:__________________________
Xxxxxx X. Xxxxx Xxxxx X. Xxxxx
Title: Senior Vice President, Title: Senior Vice President
Chief Financial Officer, and
Secretary
NATIONAL CITY BANK COMERICA BANK
By:_________________________ By:___________________________
Xxxxxxx X. XxXxxx Xxxxx X. Xxxxxxxx
Title: Senior Vice President Title: Vice President
FIRST NATIONAL BANK OF OHIO KEYBANK NATIONAL ASSOCIATION
Individually and as Agent
By:_________________________ By:__________________________
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Title: Vice President Title: Vice President
