SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit 4.1
SECOND AMENDMENT TO FIFTH AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
This Second Amendment to the Fifth Amended and Restated Revolving Credit Agreement (the “Amendment”) is made as of July 27, 2004, by and among Developers Diversified Realty Corporation, a corporation organized under the laws of the State of Ohio (the “Borrower”), Bank One, NA, having its principal office in Chicago, Illinois and the several banks, financial institutions and other entities from time to time parties to this Agreement (the “Lenders”), and Bank One, NA, not individually, but as “Administrative Agent”, and one or more new or existing “Lenders” shown on the signature pages hereof.
RECITALS
A. Borrower, Administrative Agent and certain other Lenders have entered into an Fifth Amended and Restated Credit Agreement dated as of December 12, 2003 (as amended, the “Credit Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders initially agreed to provide Borrower with a revolving credit facility in an aggregate principal amount of up to $650,000,000. The Borrower, the Administrative Agent and the Lenders now desire to amend the Credit Agreement in order to, among other things (i) increase the Aggregate Commitment to $1,000,000,000; and (ii) admit as “Lenders” under the Credit Agreement the new institutions identified on Schedule A attached hereto (the “New Lenders”).
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.
From and after July 27, 2004 (the “Effective Date”) (i) the New Lenders shall be considered as “Lenders” under the Credit Agreement and the Loan Documents, and (ii) the existing Lenders who are parties to this Amendment shall each be deemed to have increased its Commitment to the amount shown next to their respective signatures on the signature pages of this Amendment, each having a Commitment in the amount shown next to their respective signatures on the signature pages of this Amendment. The Borrower shall, on or before the Effective Date, execute and deliver to each of the New Lenders a Note and a Competitive Bid Note.
From and after the Effective Date, the Aggregate Commitment shall equal One Billion Dollars ($1,000,000,000).
For purposes of Section 13.1 of the Credit 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.
The Borrower hereby represents and warrants that, as of the Effective Date, there is no Default or Unmatured Default, the representations and warranties contained in Article V of the Agreement are true and correct as of such date and the Borrower has no offsets or claims against any of the Lenders.
As expressly modified as provided herein, the Credit Agreement shall continue in full force and effect.
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.
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first written above.
| DEVELOPERS DIVERSIFIED REALTY CORPORATION | ||||
| By: /s/ William H. Schafer | ||||
| Print Name: William H. Schafer | ||||
| Title: Senior Vice President and CFO | ||||
| 3300 Enterprise Parkway Beachwood, Ohio 44122 Phone: 216 ###-###-#### Facsimile: 216 ###-###-#### Attention: Scott A. Wolstein |
S-1
COMMITMENTS: $60,000,000 | BANK ONE, NA, Individually and as Administrative Agent | |||
| By: /s/ Timothy Carew | ||||
| Print Name: Timothy Carew Title: Director, Capital Markets | ||||
| 1 Bank One Plaza, IL 1-0315 Chicago, Illinois 60670 Phone: 312 ###-###-#### Facsimile: 312 ###-###-#### Attention: Large Corporate Real Estate |
S-2
BANK SIGNATURE PAGE INTENTIONALLY DELETED
S-3
$75,000,000 | COMMERZBANK AG, Individually and as Documentation Agent | |||
| By: /s/ Christian Berry | ||||
| Print Name: Christian Berry Title: Vice President | ||||
| and by: | ||||
| By: /s/ Douglas Traynor | ||||
| Print Name: Douglas Traynor Title: Senior Vice President | ||||
| 2 World Financial Center New York, NY 10281-1050 Phone: 212 ###-###-#### Facsimile: 212 ###-###-#### Attention: Mr. Douglas Traynor |
S-4
$75,000,000 | WACHOVIA BANK, NA., Individually and as Documentation Agent | |||
| By: /s/ Rex E. Rudy | ||||
| Print Name: Rex E. Rudy Title: Managing Director | ||||
| Mail Code NC-0172, 16th Floor 301 S. College Street Charlotte, NC 28288 Phone: 704 ###-###-#### Facsimile: 704 ###-###-#### Attention: Mr. Rex E. Rudy |
S-5
$75,000,000 | WELLS FARGO BANK, N.A., Real Estate Finance Group, Individually and as Documentation Agent | |||
| By: /s/ Scott S. Solis | ||||
| Print Name: Scott S. Solis Title: Vice President | ||||
| 123 North Wacker Drive Suite 1900 Chicago, IL 60606 Phone: 312 ###-###-#### Facsimile: 312 ###-###-#### Attention: Mr. Scott Solis |
S-6
$50,000,000 | US BANK N.A., Individually and as Managing Agent | |||
| By: /s/ Mark O. Conzelmann | ||||
| Print Name: Mark O. Conzelmann Title: Assistant Vice President | ||||
| 1350 Euclid Avenue Cleveland, OH 44115 Phone: 216 ###-###-#### Facsimile: 216 ###-###-#### Attention: Mr. Mark Conzelmann |
S-7
$40,000,000 | MORGAN STANLEY BANK Individually and as Co-Agent | |||
| By: /s/ David Twenge | ||||
| Print Name: David Twenge Title:Vice President Morgan Stanley Bank | ||||
| 1633 Broadway 25th Floor New York, NY 10019 Phone: 212 ###-###-#### / 2484 Facsimile: 212 ###-###-#### / 1866 Attention: Erna Dell’aquila / Edward Henley |
S-8
$35,000,000 | EUROHYPO AG, NEW YORK BRANCH Individually and as Co-Agent | |||
| By: /s/ Ben J. Marciano | ||||
| Print Name: Ben J. Marciano Title: Managing Director | ||||
| By: /s/ Andrew Cherrick | ||||
| Print Name: Andrew Cherrick Title: Vice President | ||||
| 123 North Wacker Drive Suite 2300 Chicago, IL 60606 Phone: 312 ###-###-#### Facsimile: 312 ###-###-#### Attention: Maureen Slentz |
S-9
$35,000,000 | ING Real Estate Finance (USA) LLC Individually and as Co-Agent | |||
| By: /s/ David A.Mazujian | ||||
| Print Name: David A. Mazujian Title: Managing Director | ||||
| 230 Park Avenue, 12th Floor New York, NY 10169 Phone: 212 ###-###-#### Facsimile: 212 ###-###-#### Attention: Mr. David Mazujian |
S-10
$35,000,000 | PNC BANK, NATIONAL ASSOCIATION Individually and as Co-Agent | |||
| By : /s/ Michael E. Smith | ||||
| Print Name: Michael E. Smith Title: Senior Vice President | ||||
| One PNC Plaza 249 Fifth Avenue, P1-POPP-19-2 Pittsburgh, PA 15222 Phone: 412 ###-###-#### Facsimile: 412 ###-###-#### Attention: Mr. Michael Smith |
S-11
$30,000,000 | THE BANK OF NOVA SCOTIA, NEW YORK AGENCY | |||
| By: /s/ Neil J. Crawford | ||||
| Print Name: Neil J. Crawford Title: Director | ||||
| One Liberty Plaza New York, NY 10006 Phone: 212 ###-###-#### Facsimile: 212 ###-###-#### Attention: Neil Crawford |
S-12
$27,000,000 | AM SOUTH BANK | |||
| By: /s/ Robert Blair | ||||
| Print Name: Robert Blair Title: Vice President | ||||
| 1900 Fifth Avenue North Birmingham, AL 35203 Phone: 205 ###-###-#### Facsimile: 205 ###-###-#### Attention: Mr. Robert Blair |
S-13
$25,000,000 | SUMITOMO MITSUI BANKING CORPORATION | |||
| By: /s/ Takashi Shimahara | ||||
| Print Name: Takashi Shimahara Title: Joint General Manager | ||||
| 277 Park Avenue New York, NY 10172 Phone: 212 ###-###-#### Facsimile: 212 ###-###-#### Attention: Charles J. Sullivan |
S-14
$25,000,000 | SUNTRUST BANK | |||
| By: /s/ Nancy B. Richards | ||||
| Print Name: Nancy B. Richards Title: Vice President | ||||
| 8425 Boone Boulevard, Suite 820 Vienna, VA 22182 Phone: 703 ###-###-#### Facsimile: 703 ###-###-#### Attention: Ms. Nancy Richards |
S-15
$25,000,000 | UBS Loan Finance LLC | |||
| By: /s/ Doris Mesa | ||||
Doris Mesa Associate Director Banking Products Services, US | ||||
| By: /s/ Winslow Ogbourne | ||||
Winslow Ogbourne Associate Director Banking Products Services, US | ||||
| 677 Washington Boulevard Stamford, CT 06901 Phone: 203 ###-###-#### Facsimile: 203 ###-###-#### Attention: Christopher Aitkin |
S-16
BANK SIGNATURE PAGE INTENTIONALLY DELETED
S-17
$20,000,000 | COMERICA BANK | |||
| By: /s/ James Graycheck | ||||
| Print Name: James Graycheck Title: Assistant Vice President | ||||
| 500 Woodward Avenue MC 3256 Detroit, MI 48226 Phone: 313 ###-###-#### Facsimile: 313 ###-###-#### Attention: James Graycheck |
S-18
BANK SIGNATURE PAGE INTENTIONALLY DELETED
S-19
$15,000,000 | FIRST TENNESSEE BANK NATIONAL ASSOCIATION | |||
| By: /s/ Greg Cullum | ||||
| Print Name: Greg Cullum Title: SVP | ||||
| 701 Market Street Chattanooga, TN 37402 Phone: 423 ###-###-#### Facsimile: 423 ###-###-#### Attention: Greg Cullum |
S-20
$14,500,000 | KEYBANK NATIONAL ASSOCIATION | |||
| By: /s/ Donald Woods | ||||
| Print Name: Donald Woods Title: Asst VP | ||||
| 127 Public Square 8th Floor Cleveland, OH 44114 Phone: 216 ###-###-#### Facsimile: 216 ###-###-#### Attention: Donald Woods |
S-21
$12,500,000 | SOVEREIGN BANK | |||
| By: /s/ T. Gregory Donohue | ||||
| Print Name: T. Gregory Donohue Title: Senior Vice President | ||||
| 75 State Street MA 1 - SST - 0441 Boston, MA 02109 Phone: 617 ###-###-#### Facsimile: 617 ###-###-#### Attention: T. Gregory Donohue |
S-22
SCHEDULE A
List of New Lenders
Morgan Stanley Bank
Eurohypo AG, New York Branch
The Bank of Nova Scotia, New York Agency
KeyBank National Association
Sumitomo Mitsui Banking Corporation
UBS Investment Bank
Comerica Bank
First Tennessee Bank National Association
Sovereign Bank
Schedule A-1
