THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
Exhibit 10.33
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND SECOND AMENDED AND
RESTATED GUARANTY OF PAYMENT OF DEBT (this “Third Amendment”) is made and entered into this 18th
day of January, 2011 (the “Effective Date”), by and among FOREST CITY RENTAL PROPERTIES
CORPORATION, an Ohio corporation (the “Borrower”), FOREST CITY ENTERPRISES, INC., an Ohio
corporation (the “Parent” or the “Guarantor”), KEYBANK NATIONAL ASSOCIATION, as Administrative
Agent (the “Agent”), PNC BANK NATIONAL ASSOCIATION, as Syndication Agent (the “Syndication Agent”
and, together with the Agent, the “Agents”), BANK OF AMERICA, N.A., as Documentation Agent, and the
banks party to the Credit Agreement (as hereinafter defined) as of the date hereof (collectively,
the “Banks” and individually a “Bank”). Capitalized terms not otherwise defined herein shall have
the respective meanings attributed to them in the Credit Agreement, as hereinafter defined and as
amended by this Third Amendment.
WITNESSETH:
WHEREAS, the Borrower, the Banks and the Agents have previously entered into that certain
Second Amended and Restated Credit Agreement, dated as of January 29, 2010, as amended by that
certain First Amendment to Second Amended and Restated Credit Agreement and Second Amended and
Restated Guaranty of Payment of Debt, dated as of March 4, 2010, and that certain Second Amendment
to Second Amended and Restated Credit Agreement and Second Amended and Restated Guaranty of Payment
of Debt, dated as of August 24, 2010 (as so amended, the “Credit Agreement”);
WHEREAS, in connection with the Credit Agreement, the Parent made and entered into that
certain Second Amended and Restated Guaranty of Payment of Debt in favor of the Agents and the
Banks, dated as of January 29, 2010, as amended by that certain First Amendment to Second Amended
and Restated Credit Agreement and Second Amended and Restated Guaranty of Payment of Debt, dated as
of March 4, 2010, and that certain Second Amendment to Second Amended and Restated Credit Agreement
and Second Amended and Restated Guaranty of Payment of Debt, dated as of August 24, 2010 (as so
amended, the “Guaranty”);
WHEREAS, the Borrower, the Parent, the Banks and the Agents desire to make certain amendments
to the Guaranty and the Credit Agreement to modify certain provisions thereof, subject to the terms
and conditions contained herein; and
WHEREAS, the Banks and the Agents are willing to enter into this Third Amendment, on the terms
and conditions set forth herein, and such terms and conditions are agreeable to the Borrower and to
the Parent;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), the
mutual covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually
agreed as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement shall be amended as
follows:
(a) Amendments to Definitions. The definitions of “Total Revolving Loan Commitments”,
“2009 Convertible Senior Notes”, “2009 Convertible Senior Notes Indenture”, “2009 Puttable Senior
Notes” and “2009 Puttable Senior Notes Indenture” set forth in Article I of the Credit Agreement
are hereby deleted in their entirety and the following new definitions are inserted in Article I of
the Credit Agreement in the appropriate alphabetical order:
“Third Amendment” shall mean that certain Third Amendment to Second
Amended and Restated Credit Agreement and Second Amended and Restated
Guaranty of Payment of Debt dated as of January 18, 2011 by and among
Borrower, Parent, Agent and the Banks party thereto.
“Third Amendment Effective Date” shall mean the “Effective Date” as
defined in the Third Amendment.
“Total Revolving Loan Commitments” shall mean, as of any date of
determination, the sum of the Commitments of each of the Banks, subject to
reduction from time to time as provided in this Agreement. As of the Third
Amendment Effective Date, the Total Revolving Loan Commitments is Four
Hundred Seventy Million Three Hundred Thirty Five Thousand Eight Hundred
Dollars ($470,335,800) and shall be unavailable to the extent of the
Suspended Commitment then in effect pursuant to Section 2.01(c) hereof.
“2009 Convertible Senior Notes” shall mean the convertible equity
senior notes of the Parent issued on or about October 26, 2009, pursuant to
the 2009 Convertible Senior Notes Indenture, subject to the terms of Section
9.10(h) of the Guaranty, in an original aggregate principal amount of Two
Hundred Million Dollars ($200,000,000), together with any notes evidencing
any Indebtedness incurred in connection with the refinancing of such senior
notes in accordance with the terms of this Agreement and the Guaranty to the
extent the proceeds of such Indebtedness are applied to the Retirement of
such senior notes.
“2009 Convertible Senior Notes Indenture” shall mean the Indenture
dated as of October 26, 2009 between the Parent and The Bank of New York
Mellon Trust Company, N.A., as indenture trustee, relating to the 2009
Convertible Senior Notes, such Indenture to be subject to the terms of
Section 9.10(h) of the Guaranty, together with any indenture relating to new
notes which refinance any of the 2009 Convertible Senior Notes in accordance
with the terms of this Agreement and the Guaranty.
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“2009 Puttable Senior Notes” shall mean the puttable equity senior
notes of the Parent issued on or about October 7, 2009, pursuant to the 2009
Puttable Senior Notes Indenture, subject to the terms of Section 9.10(h) of
the Guaranty in an original aggregate principal amount of Two Hundred
Million Dollars ($200,000,000), together with any notes evidencing any
Indebtedness incurred in connection with the refinancing of such senior
notes in accordance with the terms of this Agreement and the Guaranty to the
extent the proceeds of such Indebtedness are applied to the Retirement of
such senior notes.
“2009 Puttable Senior Notes Indenture” shall mean the Indenture dated
as of October 7, 2009 between the Parent and The Bank of New York Mellon
Trust Company, N.A., as indenture trustee, relating to the 2009 Puttable
Senior Notes, such Indenture to be subject to the terms of Section 9.10(h)
of the Guaranty, together with any indenture relating to new notes which
refinance any of the 2009 Puttable Senior Notes in accordance with the terms
of this Agreement and the Guaranty.
(b) Amendment to Section 2.02. Section 2.02 of the Credit Agreement shall be amended
by adding a new clause (c) to the end of such Section, which new clause shall read as follows:
“(c) Notwithstanding anything to the contrary contained in this
Agreement or any Related Writing, a portion of the Total Revolving Loan
Commitments equal to the collective amount of External Capital that would
have been applied as a Commitment reduction pursuant to Section 9.8(a)(v) of
the Guaranty (but without giving effect to the amendment to such section
pursuant to the Third Amendment) from and after the Third Amendment
Effective Date through and including March 31, 2011 (such collective amount
being the “Suspended Commitment”) shall be unavailable to the Borrower until
the Commitment Suspension Termination Date (as defined below). Within five
(5) Cleveland Banking Days of each event generating External Capital that
would increase the amount of the Suspended Commitment pursuant to the
foregoing sentence, the Borrower shall notify the Agent in writing of the
amount of such increase and upon receipt of such notification the amount of
the Suspended Commitment then in effect shall be automatically increased by
such amount. On the date the Borrower shall have effected a reduction of
the Commitments and, if applicable, a prepayment of the Loans in accordance
with to Section 9.8(a)(v) of the Guaranty and Section 5.07 of this Agreement
(the “Commitment Suspension Termination Date”), this Section 2.02(c) and the
Suspended Commitment shall be of no further force or effect. Nothing
contained in this Section 2.02(c) shall eliminate or limit the obligation of
Borrower to prepay the Loans pursuant to the last sentence of Section 5.07
of this Agreement.”
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2. AMENDMENTS TO THE GUARANTY. The Guaranty shall be amended as follows:
(a) Amendment to Section 9.8. Section 9.8 of the Guaranty shall be amended by adding
the following new sentences to the end of subclause (a)(v) thereof:
“Notwithstanding the foregoing, from and after the Third Amendment
Effective Date through and including March 31, 2011, the obligation to apply
fifty percent (50%) of External Capital generated during such period to the
permanent reduction of the Total Revolving Loan Commitments and the
prepayment of the Loans in accordance with this Section 9.8(a)(v) shall be
suspended. From and after April 1, 2011, the foregoing suspension of the
obligation to apply fifty percent (50%) of such External Capital to such
reduction of the Total Revolving Loan Commitments and the prepayment of the
Loans shall no longer be in effect such that any External Capital generated
on or after the Third Amendment Effective Date shall be subject to the
application of this Section 9.8(a)(v) without regard to the foregoing
sentence; provided that, notwithstanding anything to the contrary in
Section 5.07 of the Agreement, a permanent reduction of the Total Revolving
Loan Commitments and, if applicable, a prepayment of the Loans in an amount
equal to fifty percent (50%) of External Capital generated from and after
the Third Amendment Effective Date through and including March 31, 2011,
shall be effected on or before April 7, 2011.”
(b) Amendment to Section 9.10(h). Section 9.10(h) of the Guaranty shall be amended by
deleting subclause (ix) thereof in its entirety and inserting in lieu thereof the following new
subclause (ix):
“(ix) the terms and conditions of the Convertible Notes Hedge
Transactions shall not be amended or modified without the prior written
consent of the Required Banks; provided that no such prior written consent
shall be required in connection with any amendment to the terms and
conditions of the Convertible Notes Hedge Transactions for the purpose of
either or both of the following: (A) limiting the counterparties’
termination rights with respect to the options relating to such of the 2009
Convertible Senior Notes as may be repurchased, exchanged, converted or
repaid prior to the Maturity Date (as defined in the 2009 Convertible Senior
Notes Indenture) or (B) permitting one counterparty thereto to terminate its
position thereunder entirely, so long as the Guarantor shall receive from
such counterparty, within three (3) Cleveland Banking Days of such
termination, consideration deemed appropriate by the Guarantor for the
portion of the Convertible Notes Hedge Transactions that would have
otherwise remained in effect but for such counterparty’s full termination,”
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3. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the Parent 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 Borrower in Article IX of the Credit Agreement and by the
Parent 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.
(b) REQUISITE AUTHORITY. Each of the Borrower and the Parent has all requisite power
and authority to execute and deliver and to perform its obligations in respect of this Third
Amendment and each and every other agreement, certificate, or document required by or delivered
contemporaneously with this Third Amendment. Each of the Borrower and the Parent has all requisite
power and authority to perform its obligations under the Credit Agreement and the Guaranty, as
applicable, as amended by this Third Amendment.
(c) DUE AUTHORIZATION; VALIDITY. Each of the Borrower and the Parent has taken all
necessary action to authorize the execution, delivery, and performance by it of this Third
Amendment and every other instrument, document, and certificate relating hereto or delivered
contemporaneously herewith and to authorize the performance of the Credit Agreement and the
Guaranty, in each case as amended by this Third Amendment. This Third Amendment and each other
document and agreement delivered contemporaneously herewith has been duly executed and delivered by
the Borrower and the Parent and each of this Third Amendment and the Credit Agreement and the
Guaranty, each as amended by this Third Amendment, is the legal, valid, and binding obligation of
each of the Borrower and the Parent, enforceable against each of them in accordance with its
respective terms.
(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 by the Borrower or the Parent of this Third Amendment or any other instrument,
document, and certificate relating hereto or delivered contemporaneously herewith and the
transactions contemplated hereby or thereby or in connection with the performance of the Credit
Agreement and the Guaranty, in each case as amended by this Third Amendment.
(e) NO DEFAULTS. After giving effect to this Third Amendment, no event has occurred
and no condition exists which, with the giving of notice or the lapse of time, or both, would
constitute an Event of Default or Possible Default.
(f) NO CONFLICTS; NO CREATION OF LIENS. Neither the execution and delivery of this
Third Amendment nor the performance by the Borrower and the Parent of their respective obligations
under this Third Amendment or the Credit Agreement or the Guaranty, in each case as amended by this
Third Amendment, will violate the provisions of any applicable law or of any applicable order or
regulations of any governmental authority having jurisdiction over the Parent or the Borrower or
any of its Subsidiaries, or will conflict with the organizational documents of the Parent or the
Borrower or any of their material permits, licenses or authorizations, or will conflict with or
result in a breach of any of the terms, conditions or provisions of any restriction or of any
agreement or instrument to which the Parent or the Borrower is now a party, or will constitute a
default thereunder, or will result in the creation or
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imposition of any Lien upon any of the properties or assets of the Borrower or any of its
Subsidiaries.
4. CONDITIONS TO EFFECTIVENESS OF THIRD AMENDMENT.
(a) CLOSING CONDITIONS. Except as otherwise expressly provided in this Third
Amendment, prior to or concurrently with the Closing Date (as hereinafter defined), and as
conditions precedent to the effectiveness of the amendments and consents provided for herein, the
following actions shall be taken, all in form and substance satisfactory to the Agent and its
counsel:
(i) AMENDMENT. The Agent shall have received counterparts of this Third Amendment,
executed and delivered by the Borrower, the Parent, the Agents, and the Required Banks.
(ii) PAYMENT OF EXPENSES. On or before the Closing Date, the Borrower shall have paid
to the Agents all costs, fees and expenses incurred by them through the Closing Date in the
preparation, negotiation and execution of this Third Amendment (including, without limitation, the
reasonable legal fees and expenses of XxXxxxx Long & Xxxxxxxx LLP).
(b) DEFINITION. The “Closing Date” shall mean the date this Third Amendment is
executed and delivered by the Borrower, the Parent, the Required Banks and the Agents and all the
conditions set forth in subsection (a) of this Section 4 have been satisfied or, in the case of
subsection (a)(ii) above only, waived in writing by the Agent.
5. NO WAIVER. Except as otherwise expressly provided herein, the execution and
delivery of this Third Amendment by the Agents and the Banks shall not (a) constitute a waiver or
release of any obligation or liability of the Borrower under the Credit Agreement, or the Parent
under the Guaranty, in each case as in effect prior to the effectiveness of this Third Amendment or
as amended hereby, (b) waive or release any Event of Default or Possible Default existing at any
time, (c) give rise to any obligation on the part of the Agents and the Banks to extend, modify or
waive any term or condition in the Credit Agreement, the Guaranty or any of the other Related
Writings or consent to any transaction or event, or (d) give rise to any defenses or counterclaims
to the right of the Agents and the Banks to compel payment of the Debt or to otherwise enforce
their rights and remedies under the Credit Agreement, the Guaranty or any other Related Writing.
6. EFFECT ON OTHER PROVISIONS. Except as expressly amended by this Third Amendment,
all provisions of the Credit Agreement and the Guaranty continue unchanged and in full force and
effect and are hereby confirmed and ratified. All provisions of the Credit Agreement and the
Guaranty shall be applicable to this Third Amendment. Nothing in this Third Amendment or any other
document delivered in connection herewith shall be deemed or construed to constitute, and there has
not otherwise occurred, a novation, cancellation, satisfaction, release, extinguishment or
substitution of the indebtedness evidenced by the Notes or the other obligations of the Borrower
and the Parent under the Credit Agreement, the Guaranty or any of the other Related Writings.
Parent hereby acknowledges that it consents to this Third Amendment and each and every other
agreement, certificate, or document required by
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or delivered contemporaneously with this Third Amendment and confirms and agrees that the
Guaranty, as amended to the date hereof, is and shall remain in full force and effect with respect
to the Credit Agreement as in effect prior to, and from and after, the amendment thereof pursuant
to this Third Amendment.
7. EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which, when taken together, shall constitute
but one and the same agreement. Delivery of an executed counterpart of a signature page to this
Third Amendment by telecopier or .pdf file shall be effective as delivery of a manually executed
counterpart of this Third Amendment.
8. GOVERNING LAW. This Third Amendment shall be governed by, and construed in
accordance with, the laws of the State of Ohio, without regard to its principles of conflict of
laws.
9. JURY TRIAL WAIVER. THE BORROWER, THE PARENT, THE AGENTS AND EACH OF THE BANKS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, AMONG BORROWER, THE PARENT, THE AGENTS AND THE BANKS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THE CREDIT AGREEMENT, THE GUARANTY, THIS THIRD AMENDMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO. THIS THIRD AMENDMENT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY ANY
BANK’S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT AMONG THE BORROWER, THE PARENT AND
THE BANKS, OR ANY THEREOF.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed and
delivered as of the date set forth above, each by an officer thereunto duly authorized.
| FOREST CITY RENTAL PROPERTIES CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FOREST CITY ENTERPRISES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| KEY BANK NATIONAL ASSOCIATION, individually and as Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| PNC BANK, NATIONAL ASSOCIATION, individually and as Syndication Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| BANK OF AMERICA, N.A., individually and as Documentation Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE HUNTINGTON NATIONAL BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| U.S. BANK NATIONAL ASSOCIATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| FIFTH THIRD BANK |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| MANUFACTURERS AND TRADERS TRUST COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| RBS CITIZENS, N.A. dba Charter One |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXX FARGO BANK, N.A., successor-by-merger to Wachovia Bank, N.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NEW YORK MELLON |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| BARCLAYS BANK PLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| BMO XXXXXX FINANCING, INC. (f/k/a CAPITAL MARKETS FINANCING, INC.) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| COMERICA BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FIRSTMERIT BANK, N.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
