Exhibit 10.3
ADDITIONAL BANK ASSUMPTION AGREEMENT
This Additional Bank Assumption
Agreement (this “Assumption Agreement”) is made as of
December 20, 2007, by and among Wachovia Bank, N. A. (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 Sixty Million Dollars ($60,000,000.00). 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
