First Amendment to First Amended and Restated Secured Term Loan Agreement among the Company, DDR PR Ventures, LLC, S.E., a Delaware limited liability company, KeyBank National Association, and the several banks, financial institutions and other entities from time to time parties to such agreement, and KeyBank National Association, as Administrative Agent, Bank of America, N.A., as Syndication Agent, and Eurohypo AG, New York Branch, ING Real Estate Finance (USA) LLC and Scotiabanc Inc., as Documentation Agents

EX-10.1 2 l24956aexv10w1.htm EX-10.1 EX-10.1

Exhibit 10.1

FIRST AMENDMENT TO FIRST AMENDED AND RESTATED
SECURED TERM LOAN AGREEMENT

This FIRST AMENDMENT TO FIRST AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT (the “Amendment”) is made as of February 20, 2007, by and among Developers Diversified Realty Corporation, a corporation organized under the laws of the State of Ohio (“DDR”), DDR PR Ventures, LLC, S.E., a Delaware limited liability company (“DDR PR”; DDR and DDR PR together with any Qualified Borrower that issues a Qualified Borrower Note in accordance with the terms of the Loan Agreement (as hereinafter defined), collectively, the “Borrower”), KeyBank National Association, and the several banks, financial institutions and other entities from time to time parties to the Loan Agreement (the “Lenders”), and KeyBank National Association, not individually, but as “Administrative Agent”, Bank of America, N.A., not individually, but as “Syndication Agent”, and Eurohypo AG, New York Branch, ING Real Estate Finance (USA) LLC and Scotiabanc Inc., not individually, but as “Documentation Agents”, and one or more new or existing “Lenders” shown on the signature pages hereof

R E C I T A L S

A. Borrower, Administrative Agent, Syndication Agent, Documentation Agent and certain other Lenders entered into that certain First Amended and Restated Secured Term Loan Agreement dated as of June 29, 2006 (as modified and amended, the “Loan Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Loan Agreement.

B. Pursuant to the terms of the Loan Agreement, the Lenders initially agreed to provide Borrower with a secured term loan facility in an aggregate principal amount of up to $400,000,000.00. The Borrower, the Administrative Agent and the Lenders now desire to amend the Loan Agreement in order to, among other things (i) increase the Aggregate Commitment to $550,000,000.00; (ii) provide Borrower with the right to further increase the Aggregate Commitment to $800,000,000.00 upon satisfaction of certain conditions set forth in the Loan Agreement; (iii) extend the maturity date to February 20, 2011; (iv) reduce the interest rate of the Loans; and (v) admit The Bank of New York and Regions Bank (collectively, the “New Lenders”) as “Lenders” under the Loan Agreement.

NOW, THEREFORE, in consideration of the foregoing Recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENTS

1. The foregoing Recitals to this Amendment hereby are incorporated into and made part of this Amendment.

2. From and after February 20, 2007 (the “Effective Date”), (i) the New Lenders shall be considered as “Lenders” under the Loan Agreement and the Loan Documents, and (ii) the Lenders shall each have a Commitment in the amount shown next to their respective signatures on the signature pages of this Amendment (such amounts to include any increases in

the Commitments of the existing Lenders). The Borrower shall, on or before the Effective Date, execute and deliver to each of the Lenders a new or amended and restated Note in the amount of their respective Commitment.

3. From and after the Effective Date, the Aggregate Commitment shall equal Five Hundred Fifty Million and No/100 Dollars ($550,000,000.00).

4. The definition of “Maturity Date” set forth in Article I of the Loan Agreement is hereby modified and amended by deleting therefrom the date “June 28, 2008” and by inserting in lieu thereof the date “February 20, 2011.”

5. The second to last paragraph set forth in Section 2.1 of the Loan Agreement is hereby modified and amended by deleting therefrom the amount “500,000,000” and by inserting in lieu thereof the amount “800,000,000”.

6. Section 2.2 of the Loan Agreement is hereby modified and amended by deleting such Section in its entirety and by inserting in lieu thereof the following new Section 2.2:

“2.2 Final Principal Payment and Extension of Maturity Date. Any outstanding Borrowings and all other unpaid Obligations shall be paid in full by the Borrower on the Maturity Date. Provided no Default or Unmatured Default has occurred and is continuing, Borrower shall have the option to extend the term of the Loan beyond the initial Maturity Date for one (1) successive term (an “Extension Option”) of one (1) year to the Payment Date occurring in February 20, 2012 by submitting a request for an extension to the Administrative Agent (an “Extension Request”) no more than 90 and no fewer than 30 days prior to the initial Maturity Date and upon payment to Lender of all reasonable costs incurred by Lender in connection with such extension, whether the extension actually occurs or not. Promptly upon receipt of an Extension Request, the Administrative Agent shall notify each Lender of the Extension Request. It shall be an additional condition precedent to the extension of the Maturity Date pursuant hereto that (a) the Borrower shall have paid to the Administrative Agent for the ratable benefit of the Lenders, on or before the initial Maturity Date a fee equal to 0.10% of the Aggregate Commitment and (b) the Borrower shall have executed and delivered to Administrative Agent a Compliance Certificate demonstrating compliance with all covenants set forth in Section 6.18(ix), (x) and (xi) and representations and warranties set forth in the Loan Documents after giving effect to such extension.”

7. Section 2.4 of the Loan Agreement is hereby modified and amended by deleting therefrom the table of applicable debt ratings and Applicable Margins set forth therein and by inserting in lieu thereof the following new table of applicable debt ratings and Applicable Margins:


		LIBOR			ABR
		Applicable			Applicable
S&P Rating	Moody’s Rating	Margin			Margin
A- or higher	A3 or higher		0.45	%	(-0.125	%)
BBB+	Baa1		0.525	%	(-0.125	%)
BBB	Baa2		0.70	%	(-0.125	%)
BBB-	Baa3		0.875	%	(-0.125	%)
Less than BBB-	Less than Baa3		1.20	%	0.125	%

8. Clause (iv) of Section 8.2 of the Loan Agreement is hereby modified and amended by deleting therefrom the amount “500,000,000” and by inserting in lieu thereof the amount “800,000,000”.

9. For purposes of Section 13.1 of the Loan Agreement (Giving Notice), the address(es) and facsimile number(s) for the New Lenders shall be as specified below their respective signature(s) on the signature pages of this Amendment.

10. The Borrower hereby represents and warrants that, as of the Effective Date, there is no Default or Unmatured Default, the Borrower has no offsets or claims against any of the Lenders and the representations and warranties contained in Article V of the Agreement, as modified and amended by this Amendment, are true and correct as of such date.

11. As expressly modified as provided herein, the obligations of Borrower, Lenders and Administrative Agent under the Loan Agreement are hereby ratified and confirmed and the Loan Agreement shall continue in full force and effect.

12. This Amendment shall be construed and enforced in accordance with the laws of the State of Ohio (excluding the laws applicable to conflicts or choice of law). This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors, successors-in-title and assigns as provided in the Loan Agreement.

13. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart.

(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)

IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first written above.


		BORROWER:

		DEVELOPERS DIVERSIFIED REALTY CORPORATION

		By:		/s/ David E. Weiss

		Print Name:		David E. Weiss

		Title:		Sr. Vice President


		3300 Enterprise Parkway
		Beachwood, Ohio 44122
		Phone: 216 ###-###-####
		Facsimile: 216 ###-###-####
		Attention: Chief Financial Officer

		with a copy to:

		3300 Enterprise parkway
		Beachwood, Ohio 44122
		Phone: 216 ###-###-####
		Facsimile: 216 ###-###-####
		Attention: General Counsel