SECOND AMENDMENT TO FIRST AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT
Exhibit 4.3
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED
This SECOND AMENDMENT TO FIRST AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT (the
“Amendment”) is made as of this 30th day of March, 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 other 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.
RECITALS
A. Borrower, Administrative Agent, Syndication Agent, Documentation Agents 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 by that certain First Amendment to First Amended and
Restated Secured Term Loan Agreement dated as of February 20, 2007 (as modified and amended, the
“Loan Agreement”). All capitalized terms used in this Amendment and not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
B. Borrower has requested changes to certain terms in the Loan Agreement as set forth herein
and the Lenders have agreed to such changes.
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:
AMENDMENTS
1. The foregoing Recitals to this Amendment are incorporated into and made part of this
Amendment.
2. The definition of “Investment” in Article I of the Loan Agreement is hereby amended and
restated in its entirety as follows:
“Investment” of a Person means any loan, advance (other than commission, travel and similar
advances to officers and employees made in the ordinary course of business), extension of credit
(other than accounts receivable arising in the ordinary course of business on terms customary in
the trade), deposit account or contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock, partnership interests, notes,
debentures or other securities of any other Person made by such Person. For the avoidance of
doubt, an Investment shall not include any security of any Person that is convertible into,
exchangeable for or exercisable into or an option to purchase equity securities of Borrower.
3. The definition of “Restricted Payment” is hereby deleted from Article I of the Loan
Agreement.
4. The text of Section 6.11 of the Loan Agreement (Restricted Payments) is hereby deleted in
its entirety and the following is hereby inserted in lieu thereof: “Intentionally
Omitted.”.
5. Borrower hereby represents and warrants that:
| (a) | no Default or Unmatured Default exists under the Loan Documents; | ||
| (b) | the Loan Documents are in full force and effect and Borrower has no defenses or offsets to, or claims or counterclaims relating to, its obligations under the Loan Documents; | ||
| (c) | there has been no material adverse change in the financial condition of Borrower from that shown in its September 30, 2006 financial statements; | ||
| (d) | Borrower has full corporate power and authority to execute this Amendment and no consents are required for such execution other than any consents which have already been obtained; and | ||
| (e) | all representations and warranties contained in Article V of the Loan Agreement are true and correct as of the date hereof and all references therein to “the date of this Agreement” shall refer to “the date of the Second Amendment to this Agreement and all representations and warranties contained in the other Loan Documents are true and correct as of the date hereof and all references therein to “the date of this Agreement” shall refer to “the date of the Second Amendment to the Loan Agreement.” |
6. Except as specifically modified hereby, the Loan Agreement is and remains unmodified and in
full force and effect and the obligations of Borrower, Lenders and Administrative Agent under the
Loan Agreement are hereby ratified and confirmed. All references in the Loan Documents to the “Loan
Agreement” henceforth shall be deemed to refer to the Loan Agreement as amended by this Amendment.
7. 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. 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.
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8. This Amendment shall become effective when it has been executed by Borrower, Administrative
Agent and the Required Lenders.
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IN WITNESS WHEREOF, the Borrower, the Required Lenders and the Administrative Agent have
executed this Amendment as of the date first above written.
| BORROWER: DEVELOPERS DIVERSIFIED REALTY CORPORATION |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Print Name: Xxxx X. Xxxxxxx | ||||
| Title: | Executive Vice President | |||
| 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxx 00000 Phone: 216/000-0000 Facsimile: 216/755-1775 Attention: Chief Financial Officer |
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| with a copy to: |
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| 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxx 00000 Phone: 216/000-0000 Facsimile: 216/755-1560 Attention: General Counsel |
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[Signatures Continued on Following Page]
| DDR PR VENTURES, LLC, S.E. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Print Name: Xxxx X. Xxxxxxx | ||||
| Title: | Executive Vice President | |||
| 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxx 00000 Phone: 216/000-0000 Facsimile: 216/755-1775 Attention: Chief Financial Officer |
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| with a copy to: |
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| 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxx 00000 Phone: 216/000-0000 Facsimile: 216/755-1560 Attention: General Counsel |
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[Signatures Continued on Following Page]
| LENDERS: KEYBANK NATIONAL ASSOCIATION, Individually and as Administrative Agent |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Print Name: Xxxxx X. Xxxxxx | ||||
| Title: | VP | |||
| 000 Xxxxxx Xxxxxx 0xx Xxxxx Xxxxxxxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxx Xxxxxx |
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| With a copy to: |
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| 000 Xxxxxx Xxxxxx 0xx Xxxxx Xxxxxxxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxx Xxxxxxx |
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[Signatures Continued on Following Page]
| BANK OF AMERICA, N.A., Individually and as Syndication Agent |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Print Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: | Senior Vice President | |||
| 000 Xxxxx XxXxxxx Xxxxxx Xxxxxxx, XX 00000 Phone: 312/000-0000 Facsimile: 312/974-4970 Attention: Xx. Xxxxxx Xxxxx |
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[Signatures Continued on Following Page]
| EUROHYPO AG, NEW YORK BRANCH, Individually and as Documentation Agent |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Print Name: Xxxx X. Xxxxxx | ||||
| Title: | Director | |||
| and by: |
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| By: | Xxxx Xxxxx | |||
| Print Name: Xxxx Xxxxx | ||||
| Title: | Vice President | |||
| Head of Portfolio Operations Eurohypo AG, New York Branch 1114 Avenue of the Xxxxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
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| With a copy to: |
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| Head of Xxxxx Xxxxxxxxxx Xxxxxxxx XX, Xxx Xxxx Branch 1114 Avenue of the Xxxxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
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[Signatures Continued on Following Page]
| ING REAL ESTATE FINANCE (USA) LLC, Individually and as Documentation Agent |
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| By: | /s/ Xxxxxxxxxxx Xxxxxxxxx | |||
| Print Name: Xxxxxxxxxxx Xxxxxxxxx | ||||
| Title: | Director | |||
| 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xx. Xxxxxxxxxxx Xxxxxxxxx |
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[Signatures Continued on Following Page]
| SCOTIABANC INC., Individually and as Documentation Agent |
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| By: | ||||
| Print Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: | Managing Director | |||
| Scotiabanc Inc. 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxxx Xxxxxxx, Managing Director |
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| With a copy to: |
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| The Bank of Nova Scotia Xxx Xxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xx. Xxxxxx Xxxxx |
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[Signatures Continued on Following Page]
| CHARTER ONE BANK, N.A. |
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| By: | /s/ Xxxxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxxxx Xxxxxxxxx | |||
| Title: | Vice-President | |||
| 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxxxxxx Xxxxxxxxx |
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[Signatures Continued on Following Page]
| HUNTINGTON NATIONAL BANK |
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| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice-President | |||
| 000 Xxxxxx Xxxxxx XX00 Xxxxxxxxx, Xxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxx Xxxxxxx |
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[Signatures Continued on Following Page]
| THE BANK OF NEW YORK |
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| By: | /s/ Xxxxx XxXxxxxxx | |||
| Print Name: Xxxxx XxXxxxxxx | ||||
| Title: | Vice President | |||
| Xxx Xxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Attention: Xxxxx Xxxxxxxxx |
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[Signatures Continued on Following Page]
| U.S. BANK NATIONAL ASSOCIATION |
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| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| 0000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, Xxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxx X. Xxxxxxxx |
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[Signatures Continued on Following Page]
| SUNTRUST BANK |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President | |||
| 0000 Xxxxx Xxxx., 0xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxx X. Xxxxxxxx |
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[Signatures Continued on Following Page]
| PNC BANK, NATIONAL ASSOCIATION, Individually |
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| By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Print Name: Xxxxxxx X. Xxxxx | |||||
| Title: | Senior Vice President | ||||
| 000 Xxxxx Xxxxxx 00xx Xxxxx, X0-XXXX-00-0 Xxxxxxxxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xx. Xxxxxxx X. Xxxxx |
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[Signatures Continued on Following Page]
| REGIONS BANK |
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| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Assistant Vice President | |||
| 0000 0xx Xxxxxx Xxxxx, 00xx Xxxxx Xxxxxxxxxx, Xxxxxxx 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Attention: Xxxx Xxxxxxx |
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[Signatures Continued on Following Page]
| XXXXX FARGO BANK, N.A. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice-President | |||
| 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxx X. Xxxxx |
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[Signatures Continued on Following Page]
| UBS LOAN FINANCE LLC |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Print Name: Xxxxxxx X. Xxxxxx | ||||
| Title: | Director | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Print Name: Xxxx X. Xxxx | ||||
| Title: | Associate Director | |||
| 000 Xxxxxxxxxx Xxxx. Xxxxxxxx, Xxxxxxxxxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxx Xxxx |
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[Signatures Continued on Following Page]
| SUMITOMO MITSUI BANKING CORPORATION |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Print Name: Xxxxx X. Xxxx | ||||
| Title: | Senior Vice President | |||
| 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xx. Xxxxxxx X. Xxxxxxxx |
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[Signatures Continued on Following Page]
| BANCO POPULAR DE PUERTO RICO, NEW YORK BRANCH |
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| By: | ||||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Vice-President | |||
| 0 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxx X. Xxxxxxxx |
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[Signatures Continued on Following Page]
| LASALLE BANK NATIONAL ASSOCIATION |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
| 000 Xxxxx XxXxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxx Xxxxxxx |
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[Signatures Continued on Following Page]
| THE NORTHERN TRUST COMPANY |
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| By: | ||||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Vice President | |||
| 00 X. XxXxxxx Xxxxxxx, Xxxxxxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxx Xxxxxx |
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[Signatures Continued on Following Page]
| MANUFACTURERS AND TRADERS TRUST COMPANY |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice-President | |||
| Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx Xxxxxxx, Xxx Xxxx 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxx X. Xxxxx |
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