EX-10.2



 










Exhibit 10.2




ADDITIONAL BANK ASSUMPTION AGREEMENT




     This Additional Bank Assumption Agreement (this “Assumption Agreement”) is made as of December
20, 2007, by and among The Bank of New York (the “Additional Bank”), Forest City Rental Properties
Corporation (the “Borrower”) and KeyBank National Association, in its capacity as administrative
agent (the “Agent”) under the Credit Agreement (as defined below) on behalf of the Banks (as
defined in the Credit Agreement).



W I T N E S S E T H:




     WHEREAS, the Borrower, the Agent, National City Bank, as syndication agent, Bank of America,
N. A. and LaSalle Bank National Association, as co-documentation agents, and the Banks are parties
to that certain Amended and Restated Credit Agreement, dated as of June 6, 2007 (as the same may
be amended, restated, or otherwise modified from time to time, being herein called the “Credit
Agreement”), pursuant to the terms and conditions of which the Agent and the Banks have agreed to
make Loans to the Borrower, and the Agent has agreed to issue letters of credit for the account of
the Borrower on behalf of the Banks. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement; and



     WHEREAS, pursuant to Section 5.07(a) of the Credit Agreement, the Borrower has requested the
Agent to increase the Total Revolving Loan Commitments; and



     WHEREAS, in connection with the requested increase of the Total Revolving Loan Commitments,
the Additional Bank has requested that, effective on the date of this Assumption Agreement (the
“Assumption Effective Date”), the Additional Bank shall be designated a Bank under the Credit
Agreement and shall be bound thereby as if it were an original signatory thereto; and



     WHEREAS, the Borrower and the Agent are willing to permit the Additional Bank to become a Bank
under the Credit Agreement with all of the rights and obligations of a Bank thereunder, and this
Assumption Agreement is being executed and delivered in consideration of the financial
accommodations, if any, granted by the Agent and the Banks and for other valuable consideration;



     NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed
as follows:



     1. On and after the Assumption Effective Date, the Additional Bank hereby assumes



 









 







the obligation, during the Commitment Period, to make Revolving Loans and participate in Swing
Loans and letters of credit, subject to the terms and conditions of the Credit Agreement, in an
aggregate amount not to exceed Thirty-Five Million Dollars ($35,000,000.00). After giving effect
to such assumption, as of the Assumption Effective Date, the Additional Bank’s Commitment and the
amount of the Revolving Loans owing to the Additional Bank will be as set forth in Item 2(A) and
Item 2(B) of Schedule 1, respectively.



     2. On and after the Assumption Effective Date, the Additional Bank shall become and thereafter
be deemed a “Bank” for the purposes of the Credit Agreement and all Related Writings and shall be
bound thereby and obtain the benefits thereof as if it were an original signatory thereto. On and
after the Assumption Effective Date, the Additional Bank shall be entitled to receive from the
Agent all payments of principal, interest and fees with respect to the interest assumed hereby.
The Additional Bank hereby irrevocably designates and appoints KeyBank National Association as the
Agent for the Additional Bank to act as specified in the Credit Agreement and irrevocably
authorizes KeyBank National Association to take such action as the Agent on its behalf and to
exercise such powers and perform such duties under the Credit Agreement as are expressly delegated
to the Agent by the terms of the Credit Agreement or any Related Writing, together with such other
powers as are reasonably related thereto.



     3. From and after the Assumption Effective Date, the Agent shall make all payments under the
Credit Agreement and the Revolving Loan Notes in respect of the interest assumed hereby (including,
without limitation, all payments of principal, interest, commitment fees and letter of credit fees
with respect thereto) to the Additional Bank. All notices, requests, demands and other
communications provided for under the Credit Agreement and Related Writings to the Additional Bank,
that are to be mailed or delivered to it, shall be addressed to it at the address specified on
Schedule 1 attached hereto (which address shall, for purposes of Section 13.03 of the Credit
Agreement and Section 13 of the Guaranty, be deemed to be the address of the Additional Bank set
forth on the signature pages to the Credit Agreement), or at such other address as shall be
designated by the Additional Bank in accordance with Section 13.03 of the Credit Agreement.



     4. The Additional Bank (a) represents and warrants that it is a commercial bank, financial
institution, mutual fund or institutional “accredited investor” (as defined in Regulation D of the
Securities Act of 1933, as amended); (b) confirms that it has received a copy of the Credit
Agreement and each of the Related Writings, together with copies of the financial statements
requested by the Additional Bank and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assumption Agreement;
(c) agrees that it will, independently and without reliance upon any Agent or any Bank and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (d) agrees that it will
perform in accordance with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Bank; (e) confirms that it is able to fund the
Revolving Loans and any drawings under the letters of credit
as required by the terms of the Credit Agreement; (f) if the Additional Bank is organized under the
laws of a jurisdiction outside the United States, attaches the forms prescribed by the Internal



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Revenue Service of the United States certifying as to the Additional Bank’s status for purposes of
determining exemption from United States withholding taxes with respect to all payments to be made
to the Additional Bank under the Credit Agreement and the Revolving Loan Notes or such other
documents as are necessary to indicate that all such payments are subject to such taxes at a rate
reduced by an applicable tax treaty; and (g) confirms that none of the funds, monies, assets or
other consideration being used to make the purchase and assumption hereunder are “plan assets” as
defined under ERISA and that its rights, benefits and interests in and under the Credit Agreement
and Related Writings will not be “plan assets” under ERISA.



     5. The Administrative Agent (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any Related Writing, or any other
instrument or document furnished pursuant thereto; and (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition or the creditworthiness of the
Borrower or the performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto.



     6. The Borrower hereby represents and warrants to the Agent and the Additional Bank that: (a)
the Borrower has full power, authority and legal right to execute and deliver this Assumption
Agreement and the Revolving Loan Note to be made payable and delivered to the Additional Bank, and
the officers acting on behalf of the Borrower have been duly authorized to execute and deliver this
Assumption Agreement and such Revolving Loan Note; (b) this Assumption Agreement, the Credit
Agreement and such Revolving Loan Note are each valid and binding upon the Borrower and enforceable
against the Borrower in accordance with their respective terms; (c) each of the representations and
warranties set forth in Article IX of the Credit Agreement and in the Related Writings are true and
complete in all material respects as of the Assumption Effective Date, except to the extent that
any thereof expressly relate to an earlier date; and (d) no Possible Default or Event of Default
exists as of the Assumption Effective Date or will exist after giving effect to this Assumption
Agreement.



     7. Anything herein to the contrary notwithstanding, each of the Borrower and the Guarantor
shall remain bound by the terms and conditions of the Credit Agreement, the Guaranty and each other
Related Writing to which it is a party regardless of the assumption by the Additional Bank
hereunder or the enforceability thereof or of the Credit Agreement, the Guaranty or any other
Related Writing. All provisions of the Credit Agreement and the Related Writings shall remain in
full force and effect and be unaffected hereby. This Assumption Agreement is a Related Writing as
defined in the Credit Agreement.



     8. The Borrower agrees to indemnify and hold harmless the Agent against any and all losses,
costs and expenses (including, without limitation, reasonable attorneys’ fees) and
liabilities incurred by the Agent in connection with or arising in any manner from this assumption.



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     9. After the Assumption Effective Date, the Additional Bank shall have the right pursuant to
Section 13.08 of the Credit Agreement to assign the rights which are assumed by the Additional Bank
hereunder to any qualified entity as provided in Section 13.08 of the Credit Agreement, provided
that any such subsequent assignment does not violate any of the terms and conditions of the Credit
Agreement or Related Writings or any law, rule, regulation, order, writ, judgment, injunction or
decree and that any consent required under the terms of the Credit Agreement or Related Writings
has been obtained.



     10. The Borrower agrees to pay the fees and expenses (including reasonable attorneys’ fees and
expenses) incurred by the Agent in connection with the negotiation, preparation and execution of
this Assumption Agreement.



     11. This Assumption Agreement may be executed in counterparts, each of which when so executed
and delivered shall be deemed an original, but all of which together shall constitute but one and
the same instrument.



     12. This Assumption Agreement together with Schedule 1 attached hereto embody the entire
agreement and understanding between the parties hereto and supersede all prior agreements and
understandings between the parties hereto relating to the subject matter hereof.



     13. This Assumption Agreement shall be governed by the internal law, and not the law of
conflicts, of the State of Ohio.



     14. Notices shall be given under this Assumption Agreement in the manner set forth in Section
13.03 of the Credit Agreement. For the purpose hereof, the addresses of the parties hereto (until
notice of a change is delivered) shall be the respective address set forth in the Credit Agreement
or the attached Schedule 1, if a different address is therein provided.



     15. THE BORROWER, THE AGENT AND THE ADDITIONAL BANK WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE
IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG THE BORROWER, THE
AGENTS, THE ADDITIONAL BANK 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 THIS
ASSUMPTION AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER 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 ADDITIONAL BANK AND THE BANKS, OR ANY THEREOF.



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     IN WITNESS WHEREOF, the parties hereto have executed this Assumption Agreement by their duly
authorized officers as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ KENNETH R. McDONNELL	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Kenneth R. McDonnell 	 	 
	 

	 	 	 	Title:
	 	Vice
President 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FOREST CITY RENTAL PROPERTIES	 	 
	 	 	CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ THOMAS G. SMITH	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Thomas G. Smith 	 	 
	 

	 	 	 	Title:
	 	Vice
President & Assistant Secretary

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,	 	 
	 	 	as Agent for the Banks	 	 
	 
	 

	 	By:	 	/s/ JOSHUA K. MAYERS	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Joshua K. Mayers 	 	 
	 

	 	 	 	Title:
	 	Vice
President 

	 	 
	 

	 	 	 	 	 	 

	 	 






[Signature page to the Additional Bank Assumption Agreement]




 









 








SCHEDULE 1

to Additional Bank Assumption Agreement





	1.	 	Effective Date of Assumption Agreement: December 20, 2007
	 
	2.	 	Amounts (as of the date of Item 1 above unless indicated otherwise):





	 	 	 	 	 	 	 
	 

	 	A.
	 	Additional Bank’s Commitment
	$	 35,000,000
	 
	 	 	 	 	 	 
	 

	 	B.
	 	Additional Bank’s pro rata share of the
aggregate outstanding principal amount of
Revolving Loans
	$	 0
	 
	 	 	 	 	 	 
	 

	 	C.
	 	Aggregate outstanding amount of accrued interest and fees
owed to the Additional Bank
	$	 0







	4.	 	Address of Additional Bank:
	 
	 	 	The Bank of New York

One Wall Street, 21st Floor

New York, New York 10286

Attention: Kenneth McDonnell





 









 








ACKNOWLEDGMENT OF GUARANTOR




     FOREST CITY ENTERPRISES, INC., an Ohio corporation, Guarantor under that certain Amended and
Restated Guaranty of Payment of Debt issued on or about June 6, 2007 (the “Guaranty of Payment of
Debt”) to and in favor of the Agents and the Banks in respect of, inter alia., the
indebtedness of FOREST CITY RENTAL PROPERTIES CORPORATION under the Credit Agreement referenced in
the foregoing Additional Bank Assumption Agreement, hereby acknowledges (1) the assumption by the
Additional Bank under the foregoing Additional Bank Assumption Agreement of a Revolving Loan
Commitment in the principal amount of $35,000,000, and (2) the corresponding increase of the Total
Revolving Loan Commitments in the same amount, and confirms and agrees that the Guaranty of Payment
of Debt 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 addition of the Additional Bank thereto pursuant to the
foregoing Additional Bank Assumption Agreement.



	 	 	 	 	 	 	 	 	 
	Dated: December 20, 2007	 	FOREST CITY ENTERPRISES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ THOMAS G. SMITH	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Thomas G. Smith 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Title:	 	Chief Financial Officer, Executive
Vice President & Secretary