EXHIBIT 10.1
THIRD AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
This THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT AND AMENDED AND RESTATED GUARANTY OF
PAYMENT OF DEBT (this “Third Amendment”) is made
and entered into this 5 th day of October, 2009 (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”), NATIONAL CITY
BANK, 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.
W I T N E S S E T
H:
WHEREAS, the Borrower, the Banks and
the Agents have previously entered into that certain Amended and
Restated Credit Agreement, dated as of June 6, 2007 (the
“Original Credit Agreement”), as amended by that
certain First Amendment to Amended and Restated Credit Agreement,
dated as of September 10, 2008 and effective as of
July 31, 2008, and by that certain Second Amendment to Amended
and Restated Credit Agreement and Amended and Restated Guaranty of
Payment of Debt, dated and effective as of January 30, 2009
(the Original Credit Agreement as so amended, the “Credit
Agreement”);
WHEREAS, in connection with the
Original Credit Agreement, the Parent made and entered into that
certain Amended and Restated Guaranty of Payment of Debt in favor
of the Agents and the Banks, dated as of June 6, 2007, as
amended by that certain First Amendment to Amended and Restated
Guaranty of Payment of Debt, dated as of September 10, 2008
and effective as of July 31, 2008, and by that certain Second
Amendment to Amended and Restated Credit Agreement and Amended and
Restated Guaranty of Payment of Debt, dated and effective as of
January 30, 2009 (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) Amendment to
Definitions . The following new definitions are inserted in
Article I of the Credit Agreement in the appropriate
alphabetical order:
“2009 Puttable Senior Notes Indenture” shall
mean one or more indentures between the Parent and the applicable
indenture trustee, relating to the 2009 Puttable Senior Notes, such
indenture(s) initially to be approved by the Agent as provided in
Section 3 of the Third Amendment and thereafter subject to the
terms of Section 3 of the Third Amendment, Section 8.16(b) of
this Agreement and Section 9.10(h)(vii) of the Guaranty.
“2009 Puttable Senior Notes” shall mean the
puttable equity senior notes of the Parent issued at any time and
from time to time pursuant to the 2009 Puttable Senior Notes
Indenture, subject to the terms of Section 3 of the Third
Amendment, Section 8.16(b) of this Agreement and Section
9.10(h)(vii) of the Guaranty.
“Third Amendment” shall mean that certain Third
Amendment to Amended and Restated Credit Agreement and Amended and
Restated Guaranty of Payment of Debt dated as of October 5,
2009 by and among Borrower, Parent, Agent and the Banks party
thereto.
(b) Amendment to
Section 8.16 . Section 8.16 of the Credit Agreement
shall be amended by deleting it in its entirety and replacing it
with the following:
“SECTION 8.16. SENIOR NOTES; 2006 PUTTABLE SENIOR NOTES;
2009 PUTTABLE SENIOR NOTES
(a) The Borrower shall not alter, amend, change or modify the
terms of any of the Senior Notes (i) to allow the maturity
date of any of the Senior Notes to be less than ten (10) years
from the respective date of issue, (ii) to provide for payment of
interest under any of the Senior Notes more frequently than
quarterly, or (iii) to modify the redemption provisions
contained therein, including adding additional redemption
provisions.
(b) The Borrower shall not alter, amend, change or modify the
terms of any of the 2006 Puttable Senior Notes or the 2009 Puttable
Senior Notes (i) to allow the maturity of any of the 2006 Puttable
Senior Notes to be less than five (5) years from the date of
issue, (ii) to allow the maturity of any of the 2009 Puttable
Senior Notes to be prior to July 1, 2014, (iii) to
provide for payment of interest under any of the 2006 Puttable
Senior Notes or the 2009 Puttable Senior Notes more frequently than
quarterly, (iv) to provide additional circumstances pursuant
to which holders of the 2006 Puttable Senior Notes or the 2009
Puttable Senior Notes may put their 2006 Puttable Senior Notes or
the 2009 Puttable Senior Notes, as applicable, to the Parent or to
increase the put rate available to such holders, other than as
provided in the 2006 Indenture or the 2009 Puttable Senior Notes
Indentures, as applicable, (v) to permit the Parent to redeem
the 2006 Puttable Senior Notes prior to their maturity or
(vi) to modify the redemption provisions contained in the 2009
Puttable Senior Notes, including adding additional redemption
provisions.”
(c) Amendment to
Section 10.10 . Section 10.10 of the Credit Agreement
shall be amended by deleting it in its entirety and replacing it
with the following:
“SECTION 10.10. DEFAULT UNDER GUARANTY, SENIOR NOTES, 2006
PUTTABLE SENIOR NOTES OR 2009 PUTTABLE SENIOR NOTES . If an
Event of Default (as defined in the Guaranty) has occurred and is
continuing or the Guaranty shall for any reason cease to be valid
and binding against the Parent or the Parent shall so state in
writing. If the Parent defaults in the payment or performance of
any obligation under any of the Senior Notes, the 2006 Puttable
Senior Notes, the 2009 Puttable Senior Notes, the Indenture, the
2006 Indenture or any 2009 Puttable Senior Notes Indenture (after
giving effect to any applicable grace periods), or in the
performance of any other agreement, covenant, term or condition in
any of the Senior Notes, the 2006 Puttable Senior Notes, the 2009
Puttable Senior Notes, the Indenture, the 2006 Indenture or any
2009 Puttable Senior Notes Indenture (after giving effect to any
applicable grace periods).”
2. AMENDMENTS TO THE
GUARANTY . The Guaranty shall be amended as follows:
(a) Amendment to
Definitions . The following new definitions are inserted in
Article I of the Credit Agreement in the appropriate
alphabetical order:
“2009 Puttable Senior Notes Indenture” shall
mean one or more indentures between the Guarantor and the
applicable indenture trustee, relating to the 2009 Puttable Senior
Notes, such indenture(s) initially to be approved by the Agent as
provided in Section 3 of the Third Amendment and thereafter
subject to the terms of Section 3 of the Amendment, Section
8.16(b) of the Agreement and Section 9.10(h)(vii) of this
Guaranty.
“2009 Puttable Senior Notes” shall mean the
puttable equity senior notes of the Guarantor issued at any time
and from time to time pursuant to the 2009 Puttable Senior Notes
Indenture, subject to the terms of Section 3 of the Third
Amendment, Section 8.16(b) of the Agreement and Section
9.10(h)(vii) of this Guaranty.
“Third Amendment” shall mean that certain Third
Amendment to Amended and Restated Credit Agreement and Amended and
Restated Guaranty of Payment of Debt dated as of October 5,
2009 by and among Borrower, Guarantor, Agent and the Banks party
thereto.
(b) Amendment to
Section 9.2(c) . Section 9.2(c) of the Guaranty shall
be amended by deleting it in its entirety and replacing it with the
following:
“(c) all of its other obligations calling for the payment of
money (except only those so long as and to the extent that the same
shall be contested in good faith by appropriate and timely
proceedings diligently pursued) before such payment becomes
overdue; provided that, notwithstanding the foregoing, the
Guarantor shall not make any payment on account of any of the
Senior Notes, the 2006 Puttable Senior Notes or the 2009 Puttable
Senior Notes in the event of and during the continuance of any
Payment Default under the Agreement or this Guaranty.”
(c) Amendment to
Section 9.5 . Section 9.5 of the Guaranty shall be
amended by deleting it in its entirety and replacing it with the
following:
“9.5 NOTICE. The Guarantor will cause its Chief Financial
Officer, or in his or her absence another officer designated by the
Chief Financial Officer, to promptly notify the Banks whenever
(a) any Event of Default or Possible Default may occur
hereunder (including, without limitation, any default under any of
the Senior Notes, the Indenture, the 2006 Puttable Senior Notes,
any 2009 Puttable Senior Notes, the 2006 Indenture, any 2009
Puttable Senior Notes Indenture or any other document relating
thereto (after giving effect to any applicable grace period)) or
any representation or warranty made herein may for any reason cease
in any material respect to be true and complete, and/or
(b) any Restricted Subsidiary shall (i) be in default of
any material (either with respect to the Borrower or the Guarantor)
obligation for payment of borrowed money, or, to the knowledge of
the Guarantor, any material obligations in respect of guarantees,
taxes and/or Indebtedness for goods or services purchased by, or
other contractual obligations of, such Subsidiary, and/or
(ii) not, to the knowledge of the Guarantor, be in compliance
with any law, order, rule, judgment, ordinance, regulation,
license, franchise, lease or other agreement that has or could
reasonably be expected to have a material adverse effect on the
business, operations, property or financial condition of such
Subsidiary, and/or (c) the Guarantor and/or any Restricted
Subsidiary shall have received notice, or have knowledge, of any
actual, pending or threatened claim, notice, litigation, citation,
proceeding or demand relating to any matter(s) described in
subclauses (b)(i) and (b)(ii) of this Section 9.5. 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 the Indenture or the
2006 Puttable Senior Notes or the 2006 Indenture or any 2009
Puttable Senior Notes or any 2009 Puttable Senior Notes Indenture,
whether or not the Guarantor believes that the consent of the
Required Banks is needed therefor pursuant to Section 9.10
(i)(iii) or 9.10(h)(iii), as applicable, of this
Guaranty.”
(d) Amendment to
Section 9.10(h) . Section 9.10(h) of the Guaranty
shall be amended by deleting it in its entirety and replacing it
with the following:
“(h) any Indebtedness or obligations of the Guarantor under
the 2006 Puttable Senior Notes, the 2009 Puttable Senior Notes
and/or the Puttable Notes Hedge and Warrant Transactions; provided,
that:
(i) none of the 2006 Puttable Senior Notes, 2009 Puttable
Senior Notes, the 2006 Indenture or any 2009 Puttable Senior Notes
Indenture or the documents evidencing the Puttable Notes Hedge and
Warrant Transactions may provide that an Event of Default under the
Agreement or this Guaranty constitutes a default under any of the
2006 Senior Puttable Notes, the 2009 Puttable Senior Notes, the
2006 Indenture or any 2009 Puttable Senior Notes Indenture or any
Puttable Notes Hedge and Warrant Transaction, except in the case of
an Event of Default that constitutes the failure to pay the
principal of any Debt when due and payable after the expiration of
any applicable grace period with respect thereto that results in
the Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable or
constitutes the failure to pay any portion of the principal of the
Debt when due and payable at maturity or by acceleration;
(ii) the Indebtedness represented by the 2006 Senior Puttable
Notes, the 2009 Puttable Senior Notes and the Puttable Notes Hedge
and Warrant Transactions shall be unsecured, pari passu with the
Guarantor’s obligations under this Guaranty and structurally
subordinate to the Borrower’s Debt to the Banks under the
Agreement;
(iii) none of the 2006 Puttable Senior Notes, the 2009
Puttable Senior Notes, the 2006 Indenture nor any 2009 Puttable
Senior Notes Indenture shall be amended or modified without the
prior written consent of the Required Banks including, without
limitation, (A) to allow the maturity of any of the 2006
Puttable Senior Notes to be less than five (5) years from the
date of issue, (B) to allow the maturity of any of the 2009
Puttable Senior Notes to be earlier than July 1, 2014,
(C) to provide for payment of interest under any of the 2006
Puttable Senior Notes or any of the 2009 Puttable Senior Notes more
frequently than quarterly, (D) to provide additional
circumstances pursuant to which holders of the 2006 Puttable Senior
Notes or any of the 2009 Puttable Senior Notes may put the same to
the Guarantor or to increase the put rate available to such
holders, other than as provided in the 2006 Indenture or the 2009
Puttable Senior Notes Indenture, as applicable, or (E) to
permit the Guarantor to redeem the 2006 Puttable Senior Notes or
any of the 2009 Puttable Senior Notes prior to their maturity,
other than amendments or modifications that do not adversely affect
the Agreement or this Guaranty or their relationship to any of the
2006 Puttable Senior Notes, the 2009 Puttable Senior Notes, the
2006 Indenture or any 2009 Puttable Senior Notes Indenture;
(iv) the outstanding and unredeemed principal amount of the
2006 Puttable Senior Notes and 2009 Puttable Senior Notes shall
not, at any time, exceed Two Hundred Seventy-Two Million Five
Hundred Thousand Dollars ($272,500,000) in the aggregate; provided,
however, such amount shall be increased on a dollar-for-dollar
basis up to Three Hundred Forty-Seven Million Five Hundred Thousand
Dollars ($347,500,000) by an amount equal to the amount deposited
into a reserve account maintained with the Agent in accordance with
Section 3(c) of the Third Amendment;
(v) without duplication of the limitation set forth in the
immediately preceding clause (iv), the aggregate amount of the 2009
Puttable Senior Notes shall not, at any time, exceed the limit in
Section 3(a)(ii) of the Third Amendment;
(vi) the terms and conditions of the 2006 Puttable Senior
Notes, the 2006 Indenture and the Puttable Notes Hedge and Warrant
Transactions shall be satisfactory, in form and substance, to the
Agents and the Banks; and
(vii) the terms and conditions of the 2009 Puttable Senior
Notes and the 2009 Puttable Senior Notes Indenture shall comply
with the terms of Section 3 of the Third Amendment, and shall
be satisfactory in form and substance to the Agent;”
(e) Amendment to
Section 9.13(b) . Section 9.13(b) of the Guaranty
shall be amended by deleting it in its entirety and replacing it
with the following:
“(b) The Guarantor will not directly or indirectly pay any
principal of, make sinking fund payments in respect of or purchase
any Indebtedness now or hereafter owing by the Guarantor other than
any principal payment, sinking fund payment or purchase the
omission of which would (or with the giving of notice or the lapse
of any applicable grace period or both would) accelerate, or give
anyone the right to accelerate, the maturity of such Indebtedness
in accordance with the original terms thereof; provided, that,
notwithstanding the foregoing, the Guarantor shall not make any
payment on account of the Senior Notes, the 2006 Puttable Senior
Notes or any 2009 Puttable Senior Notes in the event of and during
the continuance of any Payment Default under the Agreement or this
Guaranty,”
(f) Amendment to
Section 9.13(e) . Section 9.13(e) of the Guaranty
shall be amended by deleting it in its entirety and replacing it
with the following:
“(e) In the event of and during the continuance of any Event
of Default under the Agreement or under this Guaranty other than a
Payment Default, the Guarantor shall not cause the Borrower to
declare, pay, or make, and shall not accept payment of, any
Dividends in respect of Capital Stock of the Borrower, or,
notwithstanding any other provision of the Agreement or this
Guaranty to the contrary, any loans or advances to the Guarantor
(any such Dividends or loans are referred to herein as
“Distributions”) in excess of the sum of the amount
sufficient to pay, when due, all interest payments in respect of
the Senior Notes, the 2006 Puttable Senior Notes and the 2009
Puttable Senior Notes and the amounts sufficient to pay, when due,
all taxes of the Guarantor (collectively, “Permitted
Distributions”); provided, that any Permitted Distributions
shall be applied by the Guarantor strictly to the permitted uses
specified above, and”
(g) Amendment to
Section 9.19(b)(v) . Section 9.19(b)(v) of the
Guaranty shall be amended by deleting it in its entirety and
replacing it with the following:
“(v) the Indenture, the 2006 Indenture, the 2009 Puttable
Senior Notes Indenture and the documents evidencing the Puttable
Notes Hedge and Warrant Transactions may provide that a default by
the Borrower or the Guarantor in the payment of any portion of
principal of the Debt when due and payable after the expiration of
any applicable grace period that results in the Debt becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable
