EXHIBIT 10.41
FIRST AMENDMENT TO
GUARANTY OF PAYMENT OF DEBT
This FIRST AMENDMENT TO GUARANTY OF PAYMENT OF DEBT (this "First
Amendment to Guaranty") is made and entered into as of this 9th day of May,
2003, by and among FOREST CITY ENTERPRISES, INC., an Ohio corporation (the
"Guarantor"), KEYBANK NATIONAL ASSOCIATION, as Administrative Agent (the
"Administrative Agent"), NATIONAL CITY BANK, as Syndication Agent (the
"Syndication Agent" and, together with the Administrative Agent, the "Agents")
and the banks party to the Credit Agreement (as hereinafter defined) as of the
date hereof (the "Banks").
W I T N E S S E T H;
WHEREAS, Forest City Rental Properties Corporation (the "Borrower"),
the Banks, and the Agents previously entered into a certain Credit Agreement
dated as of March 5, 2002 (the "Original Credit Agreement"); and
WHEREAS, the Banks required, as a condition to entering into the
Original Credit Agreement, that the Guarantor execute and deliver to the Agents
and the Banks a certain Guaranty of Payment of Debt, dated as of March 5, 2002
(the "Guaranty") and the Guarantor agreed to and did execute and deliver the
Guaranty to the Agents and the Banks; and
WHEREAS, the Borrower and the Guarantor have requested that the Banks
and the Agents agree to certain amendments to the Original Credit Agreement and
to the Guaranty; and
WHEREAS, the Borrower, the Banks and the Agents have entered into a
First Amendment to Credit Agreement dated as of the date hereof (together with
the Original Credit Agreement, the "Credit Agreement"), that requires as one of
its conditions that the Guarantor enter into this First Amendment to Guaranty.
NOW, THEREFORE, it is mutually agreed as follows:
1. AMENDMENT TO SECTION 1 OF THE GUARANTY. Section 1 of the
Guaranty shall be amended as follows:
(a) Definition of "Indenture." The definition of "Indenture"
contained in Section 1 of the Guaranty shall be amended by deleting it
in its entirety and replacing it with the following:
"Indentures" shall mean, collectively, the indenture
of the Parent to The Bank of New York, as indenture trustee,
dated as of March 16, 1998 and relating to the 1998 Senior
Notes, and the indenture of the Parent to The Bank of New
York, as indenture
trustee, dated as of May 19, 2003, and relating to the 2003
Senior Notes, and "Indenture" shall mean either of them, as
applicable.
(b) Definition of "Senior Notes." The definition of "Senior
Notes" contained in the Guaranty shall be amended by deleting it in its
entirety and replacing it with the following:
"Senior Notes" shall mean the 1998 Senior Notes and
the 2003 Senior Notes.
(c) Addition of Definition of "1998 Senior Notes". Article I
of the Credit Agreement shall be amended by adding in its appropriate
alphabetical place, the following definition for "1998 Senior Notes":
"1998 Senior Notes" shall mean the senior notes of
the Parent issued pursuant to the indenture dated as of March
16, 1998, between the Parent and The Bank of New York, as
indenture trustee, in the original aggregate principal amount
of $200,000.000.
(d) Addition of Definition of "2003 Senior Notes." Article I
of the Credit Agreement shall be amended by adding in its appropriate
alphabetical place, the following definition for "2003 Senior Notes":
"2003 Senior Notes" shall mean the senior notes of
the Parent issued pursuant to the indenture dated as of May
19, 2003, between the Parent as The Bank of New York, as
indenture trustee, in an original aggregate principal amount
of up to $300,000,000.
2. AMENDMENT TO SECTION 9.2(C) OF THE GUARANTY. Section 9.2(c)
of the Guaranty shall be amended by inserting the words "of any" after the word
"account" contained in the proviso therein, but leaving it the same in all
other respects.
3. AMENDMENTS TO SECTION 9.5 OF THE GUARANTY.
(a) Section 9.5(a). Section 9.5(a) of the Guaranty shall be
amended by deleting the first parenthetical contained therein and
replacing it with the following parenthetical:
(including, without limitation, any default under any
of the Senior Notes, either of the Indentures or any other
document relating to any of them (after giving effect to any
applicable grace period)).
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(b) Section 9.5. The last sentence of Section 9.5 of the
Guaranty shall be amended by deleting it in its entirety and replacing
it with the following sentence:
Further, the Guarantor shall notify the Banks not
less than thirty (30) days in advance of entering into any
proposed amendment or modification of any of the Senior Notes
or either of the Indentures, whether or not the Guarantor
believes that the consent of the Required Banks is needed
therefor pursuant to Section 9.10(h)(ii) of this Guaranty.
4. AMENDMENT TO SECTION 9.10(H) OF THE GUARANTY. Section 9.10(h)
of the Guaranty shall be amended as follows:
(a) Clause (i). Clause (i) of Section 9.10(h) of the Guaranty
shall be amended by deleting it in its entirety and replacing it with
the following:
(i) neither of the Indentures nor any of the Senior
Notes may provide that an Event of Default under the Agreement
or this Guaranty constitutes a default under such Indenture or
any of the Senior Notes, except in the case of an Event of
Default that results in the acceleration of the payment of the
Debt or constitutes the failure to pay the Debt when due after
acceleration or maturity;.
(b) Clause (ii). Clause (ii) of Section 9.10(h) of the
Guaranty shall be amended by deleting it in its entirety and replacing
it with the following:
(ii) the Indebtedness represented by the Senior Notes
shall be unsecured, pari passu with the Guarantor's
obligations under this Guaranty and structurally subordinate
to the Borrower's Obligations to the Banks under the Credit
Agreement;.
(c) Clause (iii). Section 9.10 (h) of the Guaranty shall be
amended by adding a new clause (iii) as follows:
(iii) neither of the Indentures nor any of the Senior
Notes shall be amended or modified without the prior written
consent of the Required Banks, including, without limitation,
(A) to allow the maturity date of any of the Senior Notes to
be less than ten (10) years from the respective date of issue,
(B) to provide for payment of interest under any of the Senior
Notes less frequently than semi-annually, or (C) to modify the
redemption provisions contained therein, including adding
additional redemption provisions, other than amendments or
modifications that do not adversely affect the Credit
Agreement and this Guaranty or their relationship to either of
the Indentures or any of the Senior Notes;.
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(d) Clause (iv). Section 9.10(h) of the Guaranty shall be
amended by adding a new clause (iv) as follows:
(iv) after giving effect to the redemption of the
1998 Senior Notes as contemplated in Section 9.13(d) of this
Guaranty, the outstanding and unredeemed principal amount of
the 1998 Senior Notes and the 2003 Senior Notes shall not, at
any time, exceed $300,000,000, in the aggregate; and.
(e) Clause (v). Section 9.10(h) of the Guaranty shall be
amended by adding a new clause (v) as follows:
(v) the terms and conditions of the 2003 Senior Notes
and the related Indenture dated as of May 19, 2003, shall be
satisfactory, in form and substance, to the Agents and the
Banks.
5. AMENDMENT TO SECTION 9.12(L) OF THE GUARANTY. Section 9.12(l)
of the Guaranty shall be amended by deleting it in its entirety and replacing
it with the following:
(l) the guarantee by the Guarantor of the obligations of the
Park Creek Metropolitan District and Xxxxxxxxx Land LLC located in
Xxxxxxxxx, Colorado, with respect to the $19,000,000 Park Creek
District Subordinate Limited Property Tax Revenue Bonds, Series 2003A
and the $10,000,000 Park Creek District Subordinate Limited Property
Tax Revenue Bonds, Series 2003B, provided, that such guarantee
obligations shall not be amended, restated or otherwise modified
without the prior written consent of the Banks.
6. AMENDMENT TO SECTION 9.13 OF THE GUARANTY. Section 9.13 of
the Guaranty shall be amended as follows:
(a) Section 9.13(b). Section 9.13(b) of the Guaranty shall be
amended by adding the words "of any" after the word "account" contained
in the proviso therein, but leaving it the same in all other respects.
(b) Section 9.13(d). Section 9.13(d) of the Guaranty shall be
amended by deleting it in its entirety and replacing it with the
following:
(d) the Guarantor shall not directly or indirectly
exercise its optional redemption rights, under the terms of
either of the Indentures or any of the Senior Notes, to redeem
any of the Senior Notes prior to its maturity date, or to
deposit monies or other assets with the respective trustee
under each respective Indenture for the payment of any of the
one or more Senior Notes or the release of restrictive
covenants thereunder, by defeasance, without in each case the
prior written consent of the Required Banks, provided, that
the Guarantor may, and the Guarantor hereby agrees that it
will, redeem all of the outstanding principal amount
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of the 1998 Senior Notes as soon as practicable, and in any
event prior to July 21, 2003.
7. AMENDMENT TO SECTION 10(D) OF THE GUARANTY. Section 10(d) of
the Guaranty shall be amended by deleting the proviso contained therein and
replacing it with the following proviso:
provided, that it shall be an Event of Default
hereunder if any default occurs (after giving effect to any applicable
grace period) under any of the Senior Notes permitted by Section
9.10(h) of this Guaranty or under either of the Indentures, or.
8. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants to the Agents and each of the Banks as follows:
(a) INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Each and
every representation and warranty made by the Guarantor in Section 7 of
the Guaranty is incorporated herein as if fully rewritten herein at
length and is true, correct and complete as of the date hereof and no
Event of Default or Possible Default exists on such date;
(b) REQUISITE AUTHORITY. The Guarantor has all requisite power
and authority to execute and deliver and to perform its obligations in
respect of this First Amendment to Guaranty and each and every other
agreement, certificate, or document required to be delivered as a
condition precedent to this First Amendment to Guaranty or to the First
Amendment to Credit Agreement;
(c) DUE AUTHORIZATION; VALIDITY. The Guarantor has taken all
necessary action to authorize the execution, delivery, and performance
by it of this First Amendment to Guaranty and every other instrument,
document, and certificate relating thereto. This First Amendment to
Guaranty has been duly executed and delivered by the Guarantor and is
the legal, valid, and binding obligation of the Guarantor enforceable
against it in accordance with its terms; and
(d) NO CONSENT. No consent, approval, or authorization of, or
registration with, any governmental authority or other Person is
required in connection with the execution, delivery, and performance of
this First Amendment to Guaranty and the transactions contemplated
hereby.
9. NO WAIVER. Except as otherwise expressly provided herein, the
acceptance, execution, and/or delivery of this First Amendment to Guaranty by
the Agents and the Banks shall not constitute a waiver or release of any
obligation or liability of the Guarantor under the Guaranty as in effect prior
to the effectiveness of this First Amendment to Guaranty or as amended hereby or
waive or release any Event of Default or Possible Default existing at any time.
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10. CONDITIONS TO CLOSING. Except as otherwise expressly provided in
this First Amendment to Guaranty, prior to or concurrently with the execution
and delivery of this First Amendment to Guaranty, and as conditions precedent
to the effectiveness of the amendments to the Guaranty provided for herein, the
Agents and the Banks and their respective counsel shall have received such
opinions of counsel to the Guarantor, certified copies of resolutions of the
Board of Directors of the Guarantor, and such other documents as shall be
required by the Agents, the Banks, or their respective counsel to evidence and
confirm the due authorization, execution, and delivery of this First Amendment
to Guaranty, all in form and substance satisfactory to the Agents and the Banks
and their respective counsel; the Agents and the Banks shall have received duly
executed copies of the 2003 Senior Notes and the Indenture dated as of May 19,
2003 related thereto and each shall be in form and substance satisfactory to
the Agents and the Banks; all conditions to the First Amendment to Credit
Agreement shall have been satisfied; and all costs, fees, and expenses required
by the First Amendment to Credit Agreement to have been paid by the Borrower in
connection with the First Amendment to Credit Agreement and/or this First
Amendment to Guaranty shall have been paid.
11. CONFIRMATION OF GUARANTY. The Guarantor hereby confirms that the
Guaranty is in full force and effect on the date hereof and that, upon the
amendments herein provided becoming effective, the Guaranty will continue in
full force and effect in accordance with its terms, as hereby amended.
* * *
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IN WITNESS WHEREOF, the parties hereto, each by an officer thereunto
duly authorized, have caused this First Amendment to Guaranty of Payment of Debt
to be executed and delivered as of the date first above written.
FOREST CITY ENTERPRISES, INC.
BY: /s/ Xxxxxxx X. Xxxxxx
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TITLE: President and Chief Executive
Officer
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KEYBANK NATIONAL ASSOCIATION,
Individually and as Administrative Agent
BY: /s/ Xxxxxx Xxxxx
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TITLE: Assistant Vice President
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NATIONAL CITY BANK, Individually and as
Syndication Agent
BY: /s/ Xxxxxxx X. XxXxxx
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TITLE: Senior Vice President
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THE HUNTINGTON NATIONAL BANK
BY: /s/ Xxxxxxx Xxxx Xx.
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TITLE: Vice President
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FIRST MERIT BANK
BY: /s/ Xxxx X. Xxxxxxx
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TITLE: Senior Vice President
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U.S. BANK NATIONAL ASSOCIATION
BY:
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TITLE:
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(Signature page to First Amendment to Guaranty of Payment of Debt.)
COMERICA BANK
BY: /s/ Xxxxxxx Xxxxxxx
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TITLE: Vice President
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FIRST MERIT BANK
BY: /s/ Xxxx Xxxxxxx
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TITLE: Senior Vice President
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LASALLE BANK N.A.
BY: /s/ Xxxxxxx Xxxxxxx
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TITLE: First Vice President
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MANUFACTURERS AND TRADERS
TRUST COMPANY
BY: /s/ Xxxxx X. Xxxxx
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TITLE: Vice President
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FIFTH THIRD BANK
BY: /s/ Xxxxx Xxxxxx
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TITLE: Vice President
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(Signature page to First Amendment to Guaranty of Payment of Debt)
FLEET NATIONAL BANK
BY: /s/ Xxxxx Xxxxxxx
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TITLE: Vice President
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CREDIT LYONNAIS, NEW YORK BRANCH
BY: /s/ Xxxx Xxxxx
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TITLE: Vice President
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THE PROVIDENT BANK
BY: /s/ Xxx Xxxxxxx
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TITLE: Vice President
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(Signature page to First Amendment to Guaranty of Payment of Debt)
