Exhibit 10
FIRST AMENDMENT TO FIFTH AMENDED
AND RESTATED CREDIT AGREEMENT
This First Amendment to Fifth Amended and Restated Credit Agreement (this
"Amendment") is made as of this 13th day of May, 2004 by and 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".
RECITALS
A. Borrower, Administrative Agent, and the Lenders are parties to a
Fifth Amended and Restated Credit Agreement dated as of December 12, 2003 (the
"Credit Agreement"). All capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings described as such terms in the
Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders made
available a credit facility with a potential Aggregate Commitment of
$650,000,000.
C. Borrower has requested a change in certain terms contained in the
Credit Agreement and the Lenders have agreed to such a change on the terms
contained herein.
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 following definitions have been added to Article I of the Credit
Agreement as follows:
"Acquisition Asset" means an asset acquired by Borrower or its Subsidiary
after the Amendment Effective Date, until such asset has been owned for at least
a period of one (1) year, at which time it will no longer be treated as an
Acquisition Asset.
"Amendment" means the First Amendment to Fifth Amended and Restated Credit
Agreement among Borrower, the Lenders and Administrative Agent.
"Amendment Effective Date" means the date on which: (i) the Amendment has
been executed by Borrower, Administrative Agent, and each of the Lenders, and
(ii) the initial acquisition of a portion of the Benderson Projects with a
purchase price of not less than $700,000,000 has been closed.
"Benderson Projects" means those 110 retail assets to be acquired by
the Borrower comprised of 18,800,000 square feet located mainly in the
Eastern United States.
3. The definition of "Consolidated Capitalization Value" in Article I
of the Credit Agreement is hereby amended and restated as follows:
"Consolidated Capitalization Value" means, as of any date, an amount
equal to the sum of (i) Consolidated Cash Flow for the most recent period
of two consecutive fiscal quarters for which the Borrower has reported
results (excluding any portion of Consolidated Cash Flow attributable to:
(A) Assets Under Development, (B) Projects owned by Investment Affiliates
which are encumbered by First Mortgage Receivables, and (C) Acquisition
Assets multiplied by 2, and divided by 0.090, plus (ii) Acquisition Assets
valued at the lower of their acquisition cost or market value, as
determined in accordance with GAAP.
4. The definition of "Value of Unencumbered Assets" in Article I of the
Credit Agreement is hereby amended and restated as follows:
"Value of Unencumbered Assets" means, as of any date, the sum of (A)
the amount determined by dividing the Net Operating Income for each
Project which is an Unencumbered Asset (excluding the Net Operating Income
for any Acquisition Asset which is an Unencumbered Asset) as of such date
for a calculation period which shall be either the immediately preceding
two (2) full fiscal quarters or, if so requested by Borrower or the
Administrative Agent, the one (1) immediately preceding full fiscal
quarter and the then current partial quarter (in all cases as annualized)
by 0.090 (provided that not more than 15% of the Value of Unencumbered
Assets with respect to Projects shall be attributable to Unencumbered
Assets which are ground leased) plus (B) for each Pre-Leased Project Under
Construction, 100% of the then-current book value, as determined in
accordance with GAAP, of such Pre-Leased Project Under Construction,
provided that the aggregate amount added to value under this clause (B)
shall not exceed ten percent (10%) of the total Value of Unencumbered
Assets, plus (C) cash from like-kind exchanges on deposit with a qualified
intermediary (provided that not more than 5% of the Value of Unencumbered
Assets shall be attributable to the proceeds of this clause (C), except
that such cap shall be $200,000,000 during the 1031 exchange period
relating to the sale of assets to the Macquarie Fund from the initial two
closings of the Macquarie Fund). If a Project is no longer owned as of the
date of determination, then no value shall be included from such Project,
except for purposes of such financial covenant comparing the Net Operating
Income from Unencumbered Assets to Consolidated Interest Expense under the
Credit Agreement. Notwithstanding the foregoing and with respect to any
Acquisition Asset which is an Unencumbered Asset, each such Acquisition
Asset shall be valued at the lower of its acquisition cost or market
value, as determined in accordance with GAAP.
5. Section 2.13 (i) and (ii) of the Credit Agreement is hereby amended
to delete the reference to "local time" and to insert "Chicago Time" in lieu
thereof.
2
6. Section 6.13 of the Credit Agreement is hereby amended by deleting
the reference to "securitized" in the two places where it appears.
7. Section 6.21 (i) of the Credit Agreement is hereby amended and
restated as follows:
(i) Consolidated Outstanding Indebtedness to exceed sixty percent
(60%) of Consolidated Market Value as of any date;
8. Section 6.21 (iv) of the Credit Agreement is hereby amended and
restated as follows:
(iv) the Value of Unencumbered Assets to be less than 1.60 times the
Consolidated Senior Unsecured Indebtedness as of any date;
9. Schedule 1, Schedule 2, Schedule 3 and Schedule 6 of the Credit
Agreement are hereby deleted in their entirety and replaced with the attached
Schedule 1, Schedule 2, Schedule 3 and Schedule 6.
10. 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 as shown in its March 31, 2004 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 5 of
the Credit 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 this Amendment."
11. Except as specifically modified hereby, the Credit Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed. All references in the Loan Documents to the "Credit Agreement"
henceforth shall be deemed to refer to the Credit Agreement as amended by this
Amendment.
12. 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
3
Amendment by signing any such counterpart. This Amendment shall be construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois, but giving effect to federal laws applicable to national banks.
13. This Amendment shall become effective on the Amendment Effective
Date (as defined in Section 2).
4
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Amendment as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Print Name:
--------------------------------
Title:
-------------------------------------
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1506
Attention: Xxxxx X. Xxxxxxxx
S-1
BANK ONE, NA,
Individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Print Name: Xxxxxxx Xxxxx
Title: Director, Capital Markets
1 Bank One Plaza
Mail Code: IL 1-0315
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/325-3122
Attention: Large Corporate Real Estate
S-2
BANK OF AMERICA, N.A.,
Individually and as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/974-4970
Attention: Xx. Xxxxxxx X. Xxxxxxx
X-0
COMMERZBANK AG,
Individually and as Documentation Agent
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
and by:
By: /s/ Xxxxx Xxxxx
----------------------------------------
Print Name: Xxxxx Xxxxx
Title: Assistant Treasurer
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Phone: 212/400/7569
Facsimile: 212/266-7565
Attention: Xx. Xxxxxxx Xxxxxxx
S-4
FLEET BANK,
Individually and as Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/974-4970
Attention: Xx. Xxxxxxx X. Xxxxxxx
X-0
XXXXX FARGO BANK, N.A.,
Real Estate Finance Group,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Vice President
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/782-0969
Attention: Xx. Xxxxx Xxxxx
S-6
WACHOVIA BANK, NA.,
Individually and as Managing Agent
By: /s/ Xxxxx Xxxxx
----------------------------------------
Print Name: Xxxxx Xxxxx
Title: Director
Mail Code GA-31281, 28th Floor
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Phone: 404/000-0000
Facsimile: 404/332-4066
Attention: Xx. Xxxxx Xxxxx
S-7
DEUTSCHE BANK TRUST COMPANY
AMERICAS, Individually and as Documentation
Agent
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Print Name: Xxxxxx Xxxxx
Title: Vice President
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 646/000-0000
Facsimile: 646/324-7450
Attention: Xx. Xxxxx Xxxxxxxxx
S-8
US BANK N.A.,
Individually and as Co-Agent
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxxx
Assistant Vice President
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/241-0164
Attention: Xx. Xxxx Xxxxxxxxxx
S-9
ING CAPITAL LLC,
Individually and as Co-Agent
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Vice President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Mr. A. Xxxx Xxxxx
S-10
JPMORGAN CHASE BANK,
Individually and as Co-Agent
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------------
Print Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/270-0213
Attention: Xx. Xxxx X. Xxxxxxxxxxx
S-11
AM SOUTH BANK
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 205/000-0000
Facsimile: 205/326-4075
Attention: Mr. Xxxxxx Xxxxx
S-12
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxx
Title: Vice President
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/515-6369
Attention: Xx. Xxxxxxx Xxxx
S-13
LASALLE BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: AVP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/904-6691
Attention: Xx. Xxxxxx Xxxxxxx
S-14
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxx Xxxxx
S-15
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxx
----------------------------------------
Print Name: Xxxxx X. Xxxx
Title: Vice President
One PNC Plaza
000 Xxxxx Xxxxxx, X0-XXXX-00-0
Xxxxxxxxxx, XX 00000
Phone: 412/000-0000
Facsimile: 412/762-6500
Attention: Mr. Xxxxxxx Xxxxx
S-16
CITICORP NORTH AMERICA, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Print Name: Xxxxx Xxxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/723-8547
Attention: Xx. Xxxxxxx Xxxxxxx
S-17
ERSTE BANK
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxx
----------------------------------------
Print Name: Xxxxx Xxxxx
Title: First Vice President
000 Xxxx Xxxxxx
Xxxx Xxxxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/984-5627
Attention: Xx. Xxxxxxx Xxxxxx
S-18
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Suite 0000
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: 412/000-0000
Facsimile: 412/234-8657
Attention: Xx. Xxxxxx Xxxxxxxx
S-19
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Vice President
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/444-7028
Attention: Xx. Xxxxxx Xxxxxx
S-20
SOUTHTRUST BANK
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Print Name: Xxxx X. Xxxxx
Title: Vice President
000 X. Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Phone: 404/000-0000
Facsimile: 404/214/5899
Attention: Xx. Xxxx X. Xxxxx
S-21
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Print Name: Xxxxx X. Xxxxxxxx
Title: Vice President
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Phone: 703/000-0000
Facsimile: 703/902-9190
Attention: Ms. Xxxxx Xxxxxxxx
S-22
ALLIED IRISH BANKS, P.L.C.
New York Branch
By: /s/ Xxxxxxx X'Xxxxxx
----------------------------------------
Print Name: Xxxxxxx X'Xxxxxx
Title: Vice President
By: /s/ E. Xxxxxxxx Xxxxxx
----------------------------------------
Print Name: E. Xxxxxxxx Xxxxxx
Title: Senior Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/339-8325
Attention: Xx. Xxxxxxx X'Xxxxxx
Xx. Xxxxxxx Xxxxxxxxx
S-23
COMPASS BANK
By: /s/ Xxxxxxx Xxxx Xxxxx
----------------------
Print Name: Xxxxxxx Xxxx Xxxxx
Title: Senior Vice President
00 Xxxxx 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 205/000-0000
Facsimile: 205/297-7994
Attention: Xx. Xxxxxxx Xxxxx
S-24
