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Exhibit 10.52
FIRST AMENDMENT TO AMENDED AND RESTATED
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GUARANTY OF PAYMENT OF DEBT
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This FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY OF PAYMENT OF
DEBT (this "First Amendment to Guaranty") is made and entered into as of this
9th day of August, 2000 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 from time to time party hereto (the "Banks"),
W I T N E S S E T H;
WHEREAS, Forest City Rental Properties Corporation (the "Borrower"),
the Banks, other than LaSalle Bank N.A. (the "Original Banks"), and the Agents
previously entered into a certain Amended and Restated Credit Agreement dated as
of June 25, 1999 (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 Original Banks a certain Amended and Restated Guaranty of Payment of
Debt, dated June 25, 1999 (the "Guaranty") and the Guarantor agreed to and did
execute and deliver the Guaranty to the Agents and the Original 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 Amended and Restated Credit Agreement dated as of the date
hereof (together with the Original Credit Agreement, the "Credit Agreement"),
that requires as one its conditions that the Guarantor enter into this First
Amendment to Guaranty.
NOW, THEREFORE, it is mutually agreed as follows:
1. AMENDMENT TO SECTION 9.8 OF THE GUARANTY. Section 9.8 of the
Guaranty shall be amended by deleting it in its entirety and replacing it with
the following:
9.8 EBDT. The Guarantor will not suffer or permit its EBDT in each
case for the four (4) consecutive quarters ending on each January 31,
April 30, July 31 and October 31 to be less than the amount set forth
below for the respective period set forth below:
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Period EBDT
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From July 31, 2000 through
the remainder of fiscal year 2000 $105,000,000
Fiscal year 2001 $110,000,000
Fiscal year 2002 $115,000,000
Fiscal year 2003 $120,000,000
Fiscal year 2004 $125,000,000
Fiscal year 2005 $130,000,000
Fiscal year 2006 $135,000,000
Fiscal year 2007 $140,000,000
2. AMENDMENT TO SECTION 9.9 OF THE GUARANTY. Section 9.9 of the
Guaranty shall be amended by deleting it in its entirety and replacing it with
the following:
9.9 COMBINATIONS, BULK TRANSFERS; NO PLEDGE. No Restricted Company
will be a party to any consolidation or merger or lease, sell or
otherwise transfer all or any substantial part of its assets or sell,
pledge, hypothecate or transfer its stock or other ownership interests
in any Subsidiary; PROVIDED that this Section 9.9 shall not apply to
any transfer (as opposed to a pledge) effected in the normal course of
business on commercially reasonable terms and PROVIDED, FURTHER, that a
Restricted Company shall only be permitted to pledge its stock or other
ownership interests in any of its Subsidiaries to secure (a) additional
or mezzanine indebtedness incurred with respect to a project encumbered
by a first mortgage at the time such additional or mezzanine
indebtedness is incurred, so long as such additional or mezzanine
indebtedness is permitted under Section 9.10 of this Guaranty, or (b)
primary indebtedness incurred solely for the purpose of acquiring real
property or for construction, PROVIDED, that (i) with respect to the
indebtedness described in subsection (a) above, the sum of the then
existing indebtedness PLUS such additional or mezzanine indebtedness
does not exceed eighty percent (80%) of the appraised value of the
project at the time such additional or mezzanine indebtedness is
incurred, (ii) with respect to the indebtedness described in subsection
(b) above, such primary indebtedness does not exceed one hundred
percent (100%) of the appraised value of the property being acquired at
the time of such financing, (iii) such pledges of stock or other
ownership interests may be made with respect to no more than fifteen
(15) individual properties, collectively with the Borrower, all its
Subsidiaries and all Restricted Companies at any one time, exclusive of
the properties set forth on Schedule 9.9A of this Guaranty, and (iv)
the aggregate of all such additional, mezzanine or primary indebtedness
for which such a pledge will be provided by a Restricted Company does
not exceed Two Hundred Million Dollars
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($200,000,000) in the aggregate for all pledges provided by the
Restricted Companies, the Borrower and its Subsidiaries, taken
together.
Guarantor will deliver to the Agents a schedule, in the form of
Schedule 9.9 attached hereto, listing all of the properties as to which
a pledge of stock or other ownership interests has been provided to a
lender in accordance with this Section 9.9 within twenty (20) days of
any property being added or deleted from such Schedule 9.9.
3. AMENDMENT TO SECTION 9.10 OF THE GUARANTY. Section 9.10 of the
Guaranty shall be amended by deleting the beginning of the sentence up to the
first proviso and replacing it with the following:
No Restricted Company will create, assume or suffer to exist any
indebtedness for borrowed money, any Funded Indebtedness of any kind
including, but not limited to, leases required to be capitalized under
Financial Accounting Standards Board Standard No. 13 or any
reimbursement obligations or other liabilities with respect to letters
of credit issued for any Restricted Company's account; . . .
4. AMENDMENT TO SECTION 9.12 OF THE GUARANTY. Section 9.12 of the
Guaranty shall be amended by:
a. deleting the word "or" at the end of subsection (h);
b. deleting the period at the end of subsection (i) and adding a
comma at the end of subsection (i);
c. adding the following subsection (j):
(j) the guaranty by Guarantor of the obligations of Forest
City Southpark II, Inc. located in Los Angeles, California, with
respect to the issuance of Multifamily Housing Revenue Refunding
Tax-Exempt Bond Series 2000 in the original principal amount of
Twenty Eight Million Four Hundred Thousand Dollars ($28,400,000),
PROVIDED that such guaranty obligations shall be fully
subordinated by written agreement, in form and substance
satisfactory to the Banks, to the obligations of Guarantor under
this Guaranty, which written agreements shall include, among
other things, terms providing that such subordinated guaranty
obligations (A) shall be unsecured, (B) shall have a maturity
date of at least four (4) years beyond the maturity date of the
Revolving Loans, including all extensions thereof and including
the term of any Term Loans made upon the Termination Date, (C)
shall be subject to a payment blockage for so long as an Event of
Default caused by a violation of Section 3 of this Guaranty has
occurred and is continuing and a payment blockage period of at
least one hundred seventy nine (179) days if any other Event of
Default has occurred and is continuing under this Guaranty; (D)
shall
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consist solely of a covenant to pay such subordinated guaranty
obligations and no other material covenants, financial or
otherwise; or
and
d. adding the following subsection (k):
(k) the guaranty by Guarantor of the obligations of Franklin
Town Towers Associates located in Philadelphia, Pennsylvania,
with respect to Museum Towers, in the original principal amount
of Twenty Million Four Hundred Thousand Dollars ($20,400,000),
PROVIDED that such guaranty obligations shall be fully
subordinated by written agreement, in form and substance
satisfactory to the Banks, to the obligations of Guarantor under
this Guaranty, which written agreements shall include, among
other things, terms providing that such subordinated guaranty
obligations (A) shall be unsecured, (B) shall have a maturity
date of at least four (4) years beyond the maturity date of the
Revolving Loans, including all extensions thereof and including
the term of any Term Loans made upon the Termination Date, (C)
shall be subject to a payment blockage for so long as an Event of
Default caused by a violation of Section 3 of this Guaranty has
occurred and is continuing and a payment blockage period of at
least one hundred seventy nine (179) days if any other Event of
Default has occurred and is continuing under this Guaranty; (D)
shall consist solely of a covenant to pay such subordinated
guaranty obligations and no other material covenants, financial
or otherwise.
5. AMENDMENT TO SECTION 9.13(a) OF THE GUARANTY. Section 9.13(a) of the
Guaranty shall be amended by deleting it in its entirety and replacing it with
the following:
(a) The Guarantor will not directly or indirectly purchase, acquire,
redeem or retire any shares of its capital stock at any time
outstanding or set aside funds for any such purpose, except that, from
and after the Amendment Closing Date, so long as no Event of Default or
violation of Section 9.14 shall have occurred or will result after
giving effect to such purchase, acquisition, redemption or retirement,
the Guarantor may purchase, acquire, redeem or retire shares of its
outstanding capital stock in an aggregate amount not to exceed Fifteen
Million Dollars ($15,000,000) in any yearly period measured by the
anniversary dates of the Original Closing Date of the Agreement.
6. AMENDMENT TO SECTION 9.13(c) OF THE GUARANTY. Section 9.13(c) of the
Guaranty shall be amended by deleting it in its entirety and replacing it with
the following:
(c) The Guarantor will not directly or indirectly declare or pay any
Dividends, except that, from and after the Amendment Closing Date, so
long as no Event of Default shall have
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occurred and be continuing hereunder and no Event of Default shall have
occurred and be continuing under the Agreement, Guarantor may pay
Dividends in aggregate amounts not exceeding Fifteen Million Dollars
($15,000,000), including any amounts paid as permitted by Section
9.13(a), in any yearly period measured by the anniversary dates of the
Original Closing Date of the Agreement.
7. AMENDMENT TO SECTION 9.14(a) OF THE GUARANTY. Section 9.14(a) of the
Guaranty shall be amended by deleting it in its entirety and replacing it with
the following:
(a) The Guarantor will not permit the Cash Flow Coverage Ratio (i)
for any fiscal year to be less than 1.90:1.00 and (ii) subject to
subsection (i) hereof, for any four (4) consecutive quarters to be less
than 1.65:1.00
8. AMENDMENT TO SECTION 9.15 OF THE GUARANTY. Section 9.15 of the
Guaranty shall be amended by deleting it in its entirety and replacing it with
the following:
9.15 CONSOLIDATED GAAP SHAREHOLDERS' EQUITY. The Guarantor will not
permit at any time, the Consolidated GAAP Shareholders' Equity
to be less than (a) on the Amendment Closing Date, Three
Hundred Thirty Five Million Dollars ($335,000,000), (b) on
each Fiscal Quarterly Date thereafter (other than a January 31
Fiscal Quarterly Date), the sum of (i) the computed minimum
Consolidated GAAP Shareholders' Equity for the immediately
preceding January 31 Fiscal Quarterly Date as calculated
pursuant to subsection (c) below, PLUS (ii) one hundred
percent (100%) of the cash proceeds from any sale or issuance
of equity, PLUS (iii) twenty-five percent (25%) of the
Guarantor's consolidated GAAP net income for the year-to-date
period ended on such Fiscal Quarterly Date, PLUS (iv) Fifteen
Million Dollars ($15,000,000) and (c) on each January 31
Fiscal Quarterly Date, the sum of (i) the computed minimum
Consolidated GAAP Shareholders' Equity for the immediately
preceding January 31 Fiscal Quarterly Date, PLUS (ii) one
hundred percent (100%) of the cash proceeds from any sale or
issuance of equity, PLUS (iii) fifty percent (50%) of the
Guarantor's consolidated GAAP net income for the fiscal year
then ended, PLUS (iv) Fifteen Million Dollars. As a model of
this calculation, and in order to clarify this Section 9.15,
the minimum Consolidated GAAP Shareholders' Equity calculation
as of January 31, 2000, which evidences a consolidated GAAP
Shareholders' Equity requirement of $323,000,000, is attached
hereto as Exhibit "A".
9. AMENDMENT TO SECTION 9.19 OF THE GUARANTY. Section 9.19 of the
Guaranty shall be amended by deleting the second paragraph contained therein in
its entirety and replacing it with the following:
Notwithstanding the foregoing clauses of this Section 9.19, (i) with
respect to construction projects which are constructed in multiple
phases and/or stabilized properties, Guarantor shall be permitted to
cross-default and/or cross-collateralize any
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indebtedness permitted under this Guaranty, but only if the phases to
be cross-collateralized and/or cross-defaulted consist of a single
identifiable project; and (ii) in the event of a completion guaranty of
a construction loan, Guarantor shall be permitted to (a) cross-default
any indebtedness with respect to construction loans permitted under
this Guaranty with this Guaranty or the Debt or (b) agree to a
financial covenant solely with respect to the Guarantor's net worth,
but only if (i) the indebtedness related to such completion guaranty is
in excess of Seventy Five Million Dollars ($75,000,000), (ii) the
indebtedness related to such completion guaranty has a maturity of
greater than two (2) years, not including extensions, (iii) such net
worth financial covenant is calculated in substantially the same manner
as the covenant set forth in Section 9.15 of this Guaranty and requires
a net worth for the Guarantor of not more than One Hundred Million
Dollars ($100,000,000) and (iv) the aggregate of all indebtedness
subject to such completion guaranties shall not exceed Four Hundred
Million Dollars ($400,000,000), exclusive of the indebtedness incurred
in connection with the projects set forth on Schedule 9.19 to this
Guaranty; PROVIDED, FURTHER, that the completion guaranty and any other
relevant documents relating to such construction loan must provide that
if the construction project is performing (i.e. construction is on
schedule and/or budget) and otherwise the construction loan is not in
default (after any required notice and the lapse of any applicable cure
period), an Event of Default under this Guaranty shall not permit the
construction lender to call upon its completion guaranty to fund
construction costs. In order for a construction lender to call a
default due to an Event of Default under this Guaranty, the Banks must
have provided a written notice of the Event of Default to the Guarantor
and all applicable cure periods shall have lapsed without remedy.
10. 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 Amended and Restated 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
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(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.
(e) SCHEDULE 9.9. Schedule 9.9 attached hereto is true and correct
in all material respects and sets forth a complete and accurate listing
of all properties as to which a pledge of stock or other ownership
interest has been provided by a Restricted Company to a lender.
11. 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.
12. 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; all conditions to the First Amendment to Amended and
Restated Credit Agreement shall have been satisfied; and all costs, fees, and
expenses required by the First Amendment to Amended and Restated Credit
Agreement to have been paid by the Borrower in connection with the First
Amendment to Amended and Restated Credit Agreement and/or this First Amendment
to Guaranty shall have been paid.
13. 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 Amended and Restated
Guaranty of Payment of Debt to be executed and delivered as of the date first
above written.
FOREST CITY ENTERPRISES, INC.
BY: Thomas G. Smith
TITLE: Senior Vice President
KEYBANK NATIONAL ASSOCIATION,
Individually and as Administrative Agent
BY: Scott Childs
TITLE: Assistant Vice President
NATIONAL CITY BANK, Individually and as
Syndication Agent
BY: Anthony J. DiMare
TITLE: Senior Vice President
THE HUNTINGTON NATIONAL BANK
BY: M.W. Stachur
TITLE: Vice President
FIRST MERIT BANK
BY: John F. Neumann
TITLE: Senior Vice President
COMERICA BANK
BY: Charles L. Weddell
TITLE: Vice President
(Signatures continued on next page.)
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(Signatures continued from previous page.)
CREDIT LYONNAIS, NEW YORK BRANCH
BY: Greg Nuber
TITLE: Vice President
FIRSTAR BANK NATIONAL ASSOCIATION
BY: Samuel J. Russo
TITLE: Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
BY: Kevin B. Quinn
TITLE: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION
BY: Thomas Schroeder
TITLE: Vice President
LASALLE BANK N.A.
BY: David Patchin
TITLE: Senior Vice President
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SCHEDULE 9.19
Excluded Properties
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Property to be known as the Emporium located in San Francisco,
California
New York Times Building in Manhattan
