Exhibit 10.3
SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
OF
FOREST CITY ENTERPRISES, INC.
Dated as of January 29, 2010
TABLE OF CONTENTS
Page
1.
DEFINITIONS
1
2.
ACKNOWLEDGMENTS, CONSIDERATION
5
3.
GUARANTY
6
4.
REINSTATEMENT
6
5.
WAIVERS
7
6.
ADDITIONAL AGREEMENTS
7
7.
REPRESENTATIONS AND WARRANTIES
10
8.
NOTICES
11
9.
COVENANTS
11
10.
DEFAULT; REMEDIES
34
11.
MISCELLANEOUS
37
12.
JURY TRIAL WAIVER
38
13.
NOTICES
38
14.
CONSENT TO JURISDICTION
38
15.
ENTIRE AGREEMENT
39
16.
INDEPENDENCE OF COVENANTS
39
17.
GENERAL LIMITATION OF LIABILITY
39
-i-
SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT
THIS SECOND AMENDED AND RESTATED GUARANTY OF PAYMENT OF DEBT (this
"Guaranty") is made and issued by FOREST CITY ENTERPRISES, INC., an Ohio
corporation (the "Guarantor"), as of this 29th day of January, 2010, in order to
induce the Banks (as hereinafter defined), KEYBANK NATIONAL ASSOCIATION, as
administrative agent for the Banks (the "Administrative Agent"), PNC BANK,
NATIONAL ASSOCIATION, as successor to National City Bank, as syndication agent
for the Banks (the "Syndication Agent" and together with the Administrative
Agent, the "Agents"), and BANK OF AMERICA, N.A., as documentation agent (the
"Documentation Agent"), to enter into, and lend money pursuant to, a certain
Second Amended and Restated Credit Agreement of even date herewith (said Second
Amended and Restated Credit Agreement as it may be from time to time amended,
restated, or modified being herein called the "Agreement"), by and among the
Banks, the Agents, the Documentation Agent and FOREST CITY RENTAL PROPERTIES
CORPORATION, a subsidiary of the Guarantor (the "Borrower").
W I T N E S S E T H:
WHEREAS, the Guarantor previously executed an Amended and Restated
Guaranty of Payment of Debt, dated as of June 6, 2007, in favor of the Banks (as
amended to the date hereof, the "Original Guaranty"); and
WHEREAS, Borrower, the Guarantor, the Banks, the Agents and the
Documentation Agent desire to amend and restate the Original Guaranty in its
entirety as hereinafter set forth; and
WHEREAS, in accordance with Section 13.02 of the Agreement, the
Agents, the Documentation Agent and the Banks have consented to the
modifications to the Original Guaranty that are contained herein;
NOW, THEREFORE, the Original Guaranty is hereby amended and restated
as follows:
1. DEFINITIONS. As used in this Guaranty, the following terms shall
have the following meanings:
"Cash Flow Coverage Ratio" shall mean, for any Test Period, the ratio
of (a) Consolidated Net Operating Cash Flow to (b) Guarantor Corporate Debt
Service.
"Company" shall mean the Guarantor and/or a Subsidiary of the
Guarantor, as the context may require.
"Consolidated Shareholders' Equity" shall mean the sum of (a) the
consolidated shareholders equity of the Guarantor, as reported on the Form 8-K
most recently furnished by the Guarantor (or on its behalf) to the Securities
and Exchange Commission (it being understood and agreed that Consolidated
Shareholders' Equity shall be calculated after net accumulated other
comprehensive losses but not after gains) and (b) accumulated depreciation