1
EXHIBIT 4.21
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Second Amended and Restated Credit Agreement,
dated as of September 27, 1999, is among Developers Diversified Realty
Corporation, a corporation organized under the laws of the State of Ohio (the
"BORROWER"), Bank One, NA, formerly known as The First National Bank of Chicago,
a national banking association and the several banks, financial institutions and
other entities from time to time parties to the Credit Agreement (as defined
below) (collectively, the "LENDERS"), Bank One, NA, formerly known as The First
National Bank of Chicago, not individually, but as "ADMINISTRATIVE AGENT", Bank
of America, N.A., formerly known as Bank of America National Trust & Savings
Association, not individually, but as "SYNDICATION AGENT", Fleet National Bank,
not individually, but as "DOCUMENTATION AGENT" and Commerzbank
Aktiengesellschaft, UBS AG, Stamford Branch, as successor-in-interest to UBS AG,
New York Branch and AmSouth Bank, not individually but as "CO-AGENTS" (this
"Amendment").
RECITALS
--------
A. The Borrower, the Administrative Agent, and certain of the Lenders
entered into a Second Amended and Restated Credit Agreement dated as of November
16, 1998, pursuant to which the Lenders that are parties thereto agreed to make
loans to the Borrower in the aggregate amount of up to $375,000,000 subject to
future increase to up to $400,000,000 (the "Credit Agreement"). All capitalized
terms used in this Amendment and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
B. The Borrower and the Lenders have agreed to amend the Credit
Agreement to (i) change the treatment of Borrower's investment in American
Industrial Properties REIT ("AIP"); (ii) add a letter of credit facility; and
(iii) make certain other modifications to the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated
into and made a part of this Amendment.
2. A. ARTICLE I of the Credit Agreement is hereby amended by adding the
following new definitions:
"AIP" means American Industrial Properties REIT, a Texas real estate
investment trust.
"AIP Conditions" means the following conditions: (i) all Indebtedness
of AIP shall be non-recourse to Borrower at all times; (ii) AIP shall be listed
on the New York Stock Exchange at all times; (iii) Borrower shall not hold fifty
percent (50%) or more of the total outstanding equity interests in AIP at any
time; (iv) Borrower shall not hold any ownership interest or right in AIP which
will result in the consolidation under GAAP of AIP's financial results with the
financial results of the Consolidated Group at any time; and (v) the
Consolidated Group's Investment in
2
AIP, as determined in accordance with GAAP, shall be at all times less than the
greater of (a) $175,000,000 or (b) five percent (5%) of Consolidated Market
Value without giving effect to the Consolidated Group's Investment in AIP.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances and the then Facility Letter of Credit Obligations.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; PROVIDED that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Default Rate" means the interest rate which may apply during the
continuance of a Default pursuant to SECTION 2.12.
"Facility Letter of Credit" means a Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in SECTION 2A.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Issuance Date" is defined in SECTION 2A.4.
"Issuance Notice" is defined in SECTION 2A.4.
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon application of such Person or upon which such
Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in SECTION 2A.9.
"Letter of Credit Request" is defined in SECTION 2A.4.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
B. Article I of the Credit Agreement is hereby amended by restating the
definitions of "Consolidated Group Pro Rata Share", "Consolidated Market Value",
"Funds From Operations", "Investment Affiliate" and "Obligations" as follows:
2
3
"Consolidated Group Pro Rata Share" means, with respect to any
Investment Affiliate or AIP, the percentage of the total equity ownership
interests held by the Consolidated Group in the aggregate, in such Investment
Affiliate or AIP, respectively, determined by calculating the greater of (i) the
percentage of the issued and outstanding stock, partnership interests or
membership interests in such Investment Affiliate or AIP, respectively, held by
the Consolidated Group in the aggregate and (ii) the percentage of the total
book value of such Investment Affiliate or AIP, respectively that would be
received by the Consolidated Group in the aggregate, upon liquidation of such
Investment Affiliate or AIP, respectively, after repayment in full of all
Indebtedness of such Investment Affiliate or AIP, respectively.
"Consolidated Market Value" means, as of any date, an amount equal to
the sum of (a) the Consolidated Capitalization Value as of such date, PLUS (b)
the value of Unrestricted Cash and Cash Equivalents, PLUS (c) the lesser of (i)
the value of Assets Under Development, (ii) ten percent (10%) of the
Consolidated Capitalization Value PLUS (d) the lesser of (i) 100% of the
then-current value under GAAP of all First Mortgage Receivables or (ii) five
percent (5%) of the Consolidated Capitalization Value, PLUS (e) the Consolidated
Group's Investment in AIP, as determined in accordance with GAAP (the "AIP
Value"); provided, however, that AIP Value shall only be included in the
aforementioned calculation if Borrower is in compliance with all of the AT
Conditions.
"Funds From Operations" means, for any period, the sum of (i)
Consolidated Net Income for such period, excluding (A) gains (losses) on sales
of property, (B) non-recurring charges and extraordinary items, (C) non-cash
charges (including, without limitation, depreciation and amortization, and
equity gains (losses) from each Investment Affiliate included therein, but
excluding any amortization of deferred finance costs) and (D) any income
attributable to the Consolidated Group's investment in AIP, if, and only if,
Borrower is in compliance with all of the AIP Conditions, plus (ii) the
applicable Consolidated Group Pro Rata Share of funds from operations of each
Investment Affiliate that is due to the Consolidated Group for such period, all
determined on a consistent basis. With regard to the foregoing sentence, for
each consolidated Subsidiary of the Borrower in which the Borrower does not
directly or indirectly hold a 100% ownership interest, each of clauses (A), (B)
and (C) shall exclude the portion of such item attributable to minority interest
holders which do not hold operating partnership units convertible to stock in
the Borrower.
"Investment Affiliate" means any Person in which the Consolidated
Group, directly or indirectly, has an ownership interest, whose financial
results are not consolidated under GAAP with the financial results of the
Consolidated Group; provided, however, that AIP shall not be deemed an
Investment Affiliate if Borrower is in compliance with all of the AIP Conditions
(I.e., if all AIP Conditions are not met, AIP would then be considered an
"Investment Affiliate" for purposes of this Agreement and would be treated as an
"Investment Affiliate" for purposes of all financial calculations under this
Agreement.).
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or the Lenders arising under this Agreement
or any of the other Loan Documents.
6. SECTION 2.1 of the Credit Agreement is hereby amended by (i) adding
the phrase "and the Facility Letter of Credit Obligations" after the phrase
"Competitive Bid Loans)" in the
3
4
sixth line of such section; (ii) adding the phrase ", (ii) Facility Letter of
Credit Obligations" after the phrase "then outstanding" in the eleventh line of
such section; and (iii) deleting the word "(ii)" and replacing such word with
the word "(iii)" in the eleventh line of such section.
7. SECTION 2.9 of the Credit Agreement is hereby amended by deleting
the word "five (5)" in the last sentence of the last paragraph of such section
and replacing such word with the word "ten (10)".
8. SECTION 2.21 of the Credit Agreement is hereby amended by adding the
phrase "plus its Percentage of Facility Letter of Credit Obligations" after the
phrase "Swingline Lender hereunder" in the twelfth line of such section and
after the phrase "Competitive Bid Loans)" in the eighteenth line of such
section.
9. SECTION 2.25 of the Credit Agreement is hereby amended by restating
such section as follows:
All moneys collected or received by the Administrative Agent on account
of the Facility directly or indirectly, shall be applied in the following order
of priority:
(i) to the payment of all reasonable costs incurred in the
collection of such moneys of which the Administrative Agent shall have
given notice to the Borrower;
(ii) to the reimbursement of any yield protection due to any
of the Lenders in accordance with SECTION 3.1;
(iii) to the payment of any fee due pursuant to SECTION
2A.8(b) in connection with the issuance of a Facility Letter of Credit
to the Issuing Bank, to the payment of the Facility Fee to the Lenders,
if then due, and to the payment of all fees to the Administrative
Agent;
(iv) to payment of the full amount of interest and principal
on the Swingline Loans;
(v) first to interest and the Facility Letter of Credit Fee
then due to the Lenders until paid in full and then to principal for
all Lenders (other than Defaulting Lenders) (i) as allocated by the
Borrower (unless a Default exists) between Competitive Bid Loans and
ratable Advances (the amount allocated to ratable Advances to be
distributed in accordance with the Percentages of the Lenders) or (ii)
if an Event of Default exists, in accordance with the respective Funded
Percentages of the Lenders until principal is paid in full and then to
the Letter of Credit Collateral Account until the full amount of
Facility Letter of Credit Obligations is on deposit therein;
(vi) any other sums due to the Administrative Agent or any
Lender under any of the Loan Documents; and
(vii) to the payment of any sums due to each Defaulting Lender
as their respective Percentages appear (provided that Administrative
Agent shall have the right to set-off against such sums any amounts due
from such Defaulting Lender).
4
5
10. The Credit Agreement is hereby amended by adding the following new
ARTICLE IIA:
ARTICLE IIA
THE LETTER OF CREDIT SUBFACILITY
2A.1. OBLIGATION TO ISSUE. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank hereby agrees to issue for the
account of the Borrower, one or more Facility Letters of Credit in accordance
with this ARTICLE 2A, from time to time during the period commencing on
September 27, 1999 and ending on the Business Day prior to the Facility
Termination Date. Any Lender shall have the right to decline to be the Issuing
Bank for a Facility Letter of Credit provided that if no other Lender agrees to
be the Issuing Bank then the Administrative Agent shall agree to do so.
2A.2. TYPES AND AMOUNTS. The Issuing Bank shall not have any obligation
to:
(i) issue any Facility Letter of Credit if the aggregate
maximum amount then available for drawing under Letters of Credit
issued by such Issuing Bank, after giving effect to the Facility Letter
of Credit requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if, after giving
effect thereto, the Facility Letter of Credit Obligations would exceed
$20,000,000 or the Allocated Facility Amount would exceed the Aggregate
Commitment;
(iii) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such date,
to a date which is after the Facility Termination Date; or
(iv) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such date,
to a date which is more than twelve (12) months after the date of its
issuance.
2A.3. CONDITIONS. In addition to being subject to the satisfaction of
the conditions contained in SECTION 4.2 hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
documents and the Loan Documents, the terms of the Loan Documents shall
control) and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content; and
(ii) as of the date of issuance, no order, judgment or decree
of any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuing Bank from issuing the requested
Facility Letter of Credit and no law, rule or
5
6
regulation applicable to the Issuing Bank and no request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over the Issuing Bank shall prohibit or
request that the Issuing Bank refrain from the issuance of Letters of
Credit generally or the issuance of the requested Facility Letter or
Credit in particular.
2A.4. PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) Borrower shall give the Issuing Bank and the Administrative Agent
at least five (5) Business Days' prior written notice of any requested issuance
of a Facility Letter of Credit under this Agreement (a "LETTER OF CREDIT
REQUEST") (except that, in lieu of such written notice, the Borrower may give
the Issuing Bank and the Administrative Agent telephonic notice of such request
if confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) immediately (A) of a telecopy of the written notice required hereunder
which has been signed by an authorized officer, or (B) of a telex containing all
information required to be contained in such written notice and (ii) promptly
(but in no event later than the requested date of issuance) of the written
notice required hereunder containing the original signature of an authorized
officer); such notice shall be irrevocable and shall specify:
(1) the stated amount of the Facility Letter of Credit requested (which
stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of issuance
of such requested Facility Letter of Credit (the "ISSUANCE DATE");
(3) the date on which such requested Facility Letter of Credit is to
expire (which date shall be a Business Day and shall in no event be
later than the earlier of twelve months after the Issuance Date and
the Facility Termination Date):
(4) the purpose for which such Facility Letter of Credit is to be
issued;
(5) the full name and the address of the Person for whose benefit the
requested Facility Letter of Credit is to be issued; and
(6) any special language required to be included in the Facility Letter
of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued, which shall
be subject to the approval of the Issuing Bank and Administrative Agent. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this SECTION 2A.4(a).
Administrative Agent shall promptly give a copy of the Letter of Credit Request
to the other Lenders.
(b) Subject to the terms and conditions of this ARTICLE IIA and
provided that the applicable conditions set forth in SECTION 4.2 hereof have
been satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank's usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from the
Borrower specifically revoking the Letter of Credit Request with respect to such
Facility Letter of Credit, (ii) written
6
7
notice from a Lender, which complies with the provisions of SECTION 2A.6(a), or
(iii) written or telephonic notice from the Administrative Agent stating that
the issuance of such Facility Letter of Credit would violate SECTION 2A.2.
(c) The Issuing Bank shall give the Administrative Agent and the
Borrower written or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Facility Letter of Credit (the
"ISSUANCE NOTICE") and the Administrative Agent shall promptly give a copy of
the Issuance Notice to the other Lenders.
(d) The Issuing Bank shall not extend or amend any Facility Letter of
Credit unless the requirements of this SECTION 2A.4 are met as though a new
Facility Letter of Credit was being requested and issued.
2A.5. REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(a) The Issuing Bank shall promptly notify the Borrower and the
Administrative Agent of any draw under a Facility Letter of Credit, and the
Administrative Agent shall promptly notify the other Lenders that such draw has
occurred. Any such draw shall constitute an Advance in the amount of the
Reimbursement Obligation with respect to such Facility Letter of Credit and
shall bear interest from the date of the relevant drawing(s) under the pertinent
Facility Letter of Credit at a rate selected by Borrower in accordance with
SECTION 2.9 hereof; provided that if a Default or an Unmatured Default exists at
the time of any such drawing(s), then the Borrower shall reimburse the Issuing
Bank for drawings under a Facility Letter of Credit issued by the Issuing Bank
no later than the next succeeding Business Day after the payment by the Issuing
Bank and until repaid such Reimbursement Obligation shall bear interest from the
date funded at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank under
or in connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the Issuing
Bank under any resulting liability to the Borrower or any Lender or, provided
that such Issuing Bank has complied with the procedures specified in SECTION
2A.4 and such Lender has not given a notice contemplated by SECTION 2A.6(a) that
continues in full force and effect, relieve a Lender of its obligations
hereunder to the Issuing Bank. In determining whether to pay under any Facility
Letter of Credit, the Issuing Bank shall have no obligation relative to the
Lenders other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered in compliance, and that they
appear to comply on their face, with the requirements of such Letter of Credit.
2A.6. PARTICIPATION.
(a) Immediately upon issuance by the Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in SECTION 2A.4,
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from the Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and any security therefor or
guaranty pertaining thereto; PROVIDED that a Letter of Credit issued by the
Issuing Bank shall not be deemed to be a Facility Letter of Credit for purposes
of this SECTION 2A.6 if the Issuing Bank shall have received written notice from
any Lender on or before the Business Day prior to the date of its issuance of
such Letter of Credit that one or more of the conditions contained in SECTION
4.2 is not then satisfied, and in the
7
8
event the Issuing Bank receives such a notice it shall have no further
obligation to issue any Facility Letter of Credit until such notice is withdrawn
by that Lender or the Issuing Bank receives a notice from the Administrative
Agent that such condition has been effectively waived in accordance with the
provisions of this Agreement. Each Lender's obligation to make further Loans to
the Borrower (other than any payments such Lender is required to make under
subparagraph (b) below) or issue any letters of credit on behalf of Borrower
shall be reduced by such Lender's pro rata share of each Facility Letter of
Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount to
the Issuing Bank pursuant to SECTION 2A.7 hereof, the Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the Administrative Agent for the account of the Issuing Bank the amount of
such Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank. The
failure of any Lender to make available to the Administrative Agent for the
account of any Issuing Bank its Percentage of the unreimbursed amount of any
such payment shall not relieve any other Lender of its obligation hereunder to
make available to the Administrative Agent for the account of such Issuing Bank
its Percentage of the unreimbursed amount of any payment on the date such
payment is to be made, but no Lender shall be responsible for the failure of any
other Lender to make available to the Administrative Agent its Percentage of the
unreimbursed amount of any payment on the date such payment is to be made. Any
Lender which fails to make any payment required pursuant to this SECTION 2A.6(b)
shall be deemed to be a Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing Bank shall
promptly pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each Lender which has funded its participating interest therein,
in immediately available funds, an amount equal to such Lender's Percentage
thereof.
(d) Upon the request of the Administrative Agent or any Lender, an
Issuing Bank shall furnish to the Administrative Agent or such Lender copies of
any Facility Letter of Credit to which that Issuing Bank is party and such other
documentation as may reasonably be requested by the Administrative Agent or such
Lender.
(e) The obligations of a Lender to make payments to the Administrative
Agent for the account of each Issuing Bank with respect to a Facility Letter of
Credit shall be absolute, unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever other than a
failure of any such Issuing Bank to comply with the terms of this Agreement
relating to the issuance of such Facility Letter of Credit and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances.
2A.7. PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(a) The Borrower agrees to pay to each Issuing Bank the amount of all
Reimbursement Obligations, interest and other amounts payable to such Issuing
Bank under or in connection with any Facility Letter of Credit when due in
accordance with SECTION 2A.5(A) above, irrespective of any claim, set-off,
defense or other right which the Borrower may have at any time against any
8
9
Issuing Bank or any other Person, under all circumstances, including without
limitation any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Facility Letter of Credit or any transferee of any Facility
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any Facility
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
Borrower and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect of any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower received by the Issuing
Bank with respect to a Facility Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from the Issuing Bank in connection
with any receivership, liquidation; reorganization or bankruptcy proceeding,
each Lender which received such distribution shall, upon demand by the Issuing
Bank, contribute such Lender's Percentage of the amount set aside, avoided or
recovered together with interest at the rate required to be paid by the Issuing
Bank upon the amount required to be repaid by the Issuing Bank.
2A.8. COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent, for the ratable
account of the Lenders, based upon the Lenders' respective Percentages, a per
annum fee (the "FACILITY LETTER OF CREDIT FEE") with respect to each Facility
Letter of Credit that is equal to the LIBOR Applicable Margin. The Facility
Letter of Credit Fee relating to any Facility Letter of Credit shall be due and
payable in arrears in equal installments on each Payment Date and, to the extent
any such fees are then due and unpaid, on the Facility Termination Date. The
Administrative Agent shall promptly remit such Facility Letter of Credit Fees,
when paid, to the other Lenders in accordance with their Percentages thereof.
(b) The Issuing Bank also shall have the right to receive solely for
its own account an issuance fee of 0.125% of the face amount of each Facility
Letter of Credit, payable by the Borrower on the Issuance Date for each such
Facility Letter of Credit. The Issuing Bank shall also be entitled to receive
its reasonable out-of-pocket costs and the Issuing Bank's standard charges of
9
10
issuing, amending and servicing Facility Letters of Credit and processing draws
thereunder. The Borrower shall pay such issuance fee and other amounts when due
to the Issuing Bank.
2A.9. LETTER OF CREDIT COLLATERAL ACCOUNT. The Borrower hereby agrees
that it will, until the Facility Termination Date, maintain a special collateral
account (the "LETTER OF CREDIT COLLATERAL ACCOUNT") at the Administrative
Agent's office at the address specified pursuant to Article XIII, in the name of
the Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders, and in which the Borrower shall have no
interest other than as set forth in SECTION 8.1. Such Letter of Credit
Collateral Account shall be funded to the extent required by SECTION 8.1. In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a properly perfected security interest in
and to the Letter of Credit Collateral Account, any funds that may hereafter be
on deposit in such account and the proceeds thereof.
11. SECTION 3.1(I) of the Credit Agreement is hereby amended by adding
the phrase ", Facility Letters of Credit" after the word "Loans" in the second
to the last line thereof.
12. SECTION 3.1 (III) of the Credit Agreement is hereby amended by
adding the phrase ", Letters of Credit issued or participated in" after the
phrase "loans held" in the third to the last line thereof.
13. SECTION 3.2 of the Credit Agreement is hereby amended by adding the
phrase ", its interest in the Facility Letters of Credit" after the phrase "its
Loans" in the seventh line thereof and the phrase "or participate in or issue
Facility Letters of Credit" after the phrase "Loans hereunder" in the eighth
line thereof.
14. The Credit Agreement is hereby amended by adding the following new
SECTION 6.23:
6.23. INVESTMENTS IN AIP AND INVESTMENT AFFILIATES. The Consolidated
Group's Investment in AIP, as determined in accordance with GAAP, PLUS the
Consolidated Group's Investment in Investment Affiliates, as determined in
accordance with GAAP, shall not at any time exceed thirty percent (30%) of
Consolidated Market Value.
15. SECTION 7.3 of the Credit Agreement is hereby amended by restating
such section as follows:
The breach of any terms or provisions of SECTION 6.2, 6.10 through 6.21
and 6.23.
16. SECTION 8.1 of the Credit Agreement is hereby amended by restating
such section as follows:
If any Default described in SECTION 7.7 or 7.8 occurs with respect to
the Borrower, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Facility Letters of Credit hereunder shall automatically terminate
and the Obligations shall immediately become due and payable without any
election or action on the part of the Administrative Agent or any Lender. If any
other Default occurs, the Required Lenders, at any time prior to the date that
such Default has been fully cured, may terminate or suspend the obligations of
the Lenders to make Loans hereunder and to issue Facility Letters of Credit, or
declare the Obligations to be due and payable,
10
11
or both, whereupon (i) the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives and (ii) the Administrative Agent, as directed
by the Required Lenders (or if no such direction is given within 30 days after a
request for direction, as the Administrative Agent deems in the best interests
of the Lenders, in its sole discretion), shall use its good faith efforts to
collect, including without limitation, by filing and diligently pursuing
judicial action, all amounts owed by the Borrower and any Subsidiary Guarantor
under the Loan Documents.
In addition to the foregoing, following the occurrence of a Default and
so long as any Facility Letter of Credit has not been fully drawn and has not
been canceled or expired by its terms, upon demand by the Administrative Agent,
the Borrower shall deposit in the Letter of Credit Collateral Account cash in an
amount equal to the aggregate undrawn face amount of all outstanding Facility
Letters of Credit and all fees and other amounts due or which may become due
with respect thereto. The Borrower shall have no control over funds in the
Letter of Credit Collateral Account, which funds will be invested by the
Administrative Agent from time to time at its discretion in certificates of
deposit of First Chicago having a maturity not exceeding 30 days. Such funds
shall be promptly applied by the Administrative Agent to reimburse any Issuing
Bank for drafts drawn from time to time under the Facility Levers of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the
Administrative Agent is otherwise directed by a court of competent jurisdiction,
be promptly paid over to the Borrower.
If after acceleration of the maturity of the Obligations or termination
of the obligations of the Lenders to make Loans hereunder or to issue Facility
Letters of Credit as a result of any Default (other than any Default as
described in SECTION 7.7 or 7.8 with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations shall have been obtained
or entered, all of the Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
17. Except as specifically modified hereby, the Credit Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed. Borrower hereby remakes as of the date hereof, each of its respective
representations and warranties contained in Article V of the Credit Agreement.
18. 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 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. This Amendment shall be effective when it has been
executed by the Borrower, the Administrative Agent and each other Lender and
each party has notified the Administrative Agent by telecopy or telephone that
it has taken such action.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
11
12
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 THE FIRST NATIONAL BANK OF CHICAGO, Individually and as
Administrative Agent
By: By:
------------------------------------------------- -------------------------------------------------
Print Name: Print Name:
----------------------------------------- -----------------------------------------
Title: Title:
---------------------------------------------- ----------------------------------------------
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, a COMMERZBANK
national banking association AKTIENGESELLSCHAFT
By: By:
------------------------------------------------- -------------------------------------------------
Print Name: Print Name:
----------------------------------------- -----------------------------------------
Title: Title:
---------------------------------------------- ----------------------------------------------
FLEET NATIONAL BANK UBS AG, NEW YORK BRANCH
By: By:
------------------------------------------------- -------------------------------------------------
Print Name: Print Name:
----------------------------------------- -----------------------------------------
Title: Title:
---------------------------------------------- ----------------------------------------------
ASMOUTH BANK PNC BANK, NATIONAL ASSOCIATION
By: By:
------------------------------------------------- -------------------------------------------------
Print Name: Print Name:
----------------------------------------- -----------------------------------------
Title: Title:
---------------------------------------------- ----------------------------------------------
COMERCIA BANK FIRST UNION NATIONAL BANK
By: By:
------------------------------------------------- -------------------------------------------------
Print Name: Print Name:
----------------------------------------- -----------------------------------------
Title: Title:
---------------------------------------------- ----------------------------------------------
MELLON BANK, N.A. HUNTINGTON NATIONAL BANK
By: By:
------------------------------------------------- -------------------------------------------------
Print Name: Print Name:
----------------------------------------- -----------------------------------------
Title: Title:
---------------------------------------------- ----------------------------------------------
HIBERNIA NATIONAL BANK
By:
-------------------------------------------------
Print Name:
-----------------------------------------
Title:
----------------------------------------------
12
