THIRD AMENDMENT TO SECOND AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT
Exhibit 4.2
THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED SECURED TERM LOAN AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT (this “Amendment”) is made as of this 30th day of March, 2017 (the “Effective Date”), by and among DDR Corp. (f/k/a 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, “Borrower”), KeyBank National Association, and the other several banks, financial institutions and other entities from time to time parties to the Loan Agreement described below, including the existing “Lenders” shown on the signature pages hereof (the “Lenders”), and KeyBank National Association, not individually, but as “Administrative Agent”, RBC Capital Markets, not individually, but as “Syndication Agent”, and U.S. Bank National Association, The Bank of Nova Scotia and Citizens, N.A., not individually, but as “Documentation Agents”.
R E C I T A L S
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A. |
Borrower, Administrative Agent, X.X. Xxxxxx Securities LLC, as syndication agent, ING Real Estate Finance (USA) LLC, Scotiabanc, Inc. and Citizens, N.A., as documentation agents, and certain Lenders entered into that certain Second Amended and Restated Secured Term Loan Agreement dated as of June 28, 2011, as amended by that certain First Amendment to Second Amended and Restated Secured Term Loan Agreement dated as of January 17, 2013, and that certain Second Amendment to Second Amended and Restated Secured Term Loan Agreement dated as of April 23, 2015 (collectively, the “Existing Loan Agreement”; the Existing Loan Agreement, as modified and amended by this Amendment, the “Loan Agreement”). All capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement. |
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B. |
Borrower has requested changes to certain terms in the Existing 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.Section 1.1 of the Existing Loan Agreement is hereby amended by deleting in its entirety the definition of “Substantial Portion”, and inserting in lieu the following:
“‘Substantial Portion’ means, with respect to the Property of the Borrower and its Subsidiaries, Property which (i) represents more than 30% (or, in the case of Section 7.7 or 7.8 of this Agreement, 10%) of the assets of the Consolidated
Group as would be shown in the consolidated financial statements of the Consolidated Group as at the beginning of the twelve-month period ending with the month immediately preceding the month in which such determination is made, or (ii) is responsible for more than 30% (or, in the case of Section 7.7 or 7.8 of this Agreement, 10%) of the consolidated net operating income of the Consolidated Group as reflected in the financial statements referred to in clause (i) above.”
3.Borrower hereby represents and warrants that:
(a)after giving effect to this Amendment, no Default or Unmatured Default exists;
(b)the Loan Documents are in full force and effect and neither Borrower nor any Assignor has 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 and its Subsidiaries from that shown in its December 31, 2016 financial statements;
(d)each of Borrower and the Assignors has full corporate power and authority to execute, and has duly authorized the execution of, this Amendment and the other documents executed in connection herewith and no consents are required for such execution other than any consents which have already been obtained; and
(e)after giving effect to this Amendment, all representations and warranties contained in Article V of the Loan Agreement and in the other Loan Documents are true and correct in all material respects as of the date hereof; provided that any representation or warranty that is qualified as to “materiality”, Material Adverse Effect or similar language is true and correct in all respects as of the date hereof and any such representations or warranties that relate to an earlier specified date are true and correct on and as of such date.
4.Except as specifically modified hereby or in any agreement executed in connection herewith, the Loan Agreement and the other Loan Documents are and remain 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 Existing Loan Agreement henceforth shall be deemed to refer to the Existing Loan Agreement as amended by this Amendment. Without limiting the foregoing, DDR, as guarantor under that certain Unconditional Guaranty of Payment and Performance dated as of June 29, 2005 (as modified and amended from time to time, hereinafter referred to as “Guaranty”), does hereby acknowledge and agree that (i) the “Loan Documents” (as defined in the Guaranty) shall include the Loan Agreement and that certain Third Omnibus Amendment to Loan Documents dated as of even date herewith among Borrower, the assignors party thereto and Administrative Agent and (ii) the Guaranty hereby extends to and is applicable to such Loan Documents, as modified and amended. In connection with the foregoing provisions, DDR, in its capacity as guarantor under the Guaranty, does hereby ratify and confirm the Guaranty. Nothing in this Amendment shall be deemed or construed to constitute, and there has not otherwise occurred, a waiver, cancellation, satisfaction, release or extinguishment of the obligations of DDR, in its capacity as guarantor under the Guaranty, under the Guaranty.
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5.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. The Borrower will pay the reasonable fees and expenses of Agent in connection with this Amendment.
6.This Amendment shall become effective as of June 28, 2011 upon satisfaction of the following conditions precedent: (i) this Amendment shall have been executed by Borrower, Administrative Agent and the Required Lenders and the Third Omnibus Amendment of Loan Documents shall have been executed by Borrower, the assignors party thereto and the Administrative Agent, and (ii) the Administrative Agent shall have received and approved a fully executed and effective amendment to the Unsecured Credit Agreement, a fully executed and effective amendment to the Xxxxx Fargo Credit Agreement, and a fully executed and effective amendment to that certain Second Amended and Restated Credit Agreement dated as of October 20, 2010 between Borrower and PNC Bank, National Association, as amended, each of which reflects modifications thereto that conform to the modifications being made pursuant to this Amendment.
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first above written.
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BORROWER:
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DDR CORP. (f/k/a Developers Diversified Realty Corporation), an Ohio corporation By:/s/ Xxxxxxx Xxxxxxxx Print Name: Xxxxxxx Xxxxxxxx Title: Executive Vice President, Chief Financial Officer and Treasurer 0000 Xxxxxxxxxx Xxxxxxx with a copy to: 0000 Xxxxxxxxxx Xxxxxxx |
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DDR PR VENTURES, LLC, S.E., a Delaware limited liability company By:/s/ Xxxxxxx Xxxxxxxx Print Name: Xxxxxxx Xxxxxxxx Title: Executive Vice President, Chief Financial Officer and Treasurer 0000 Xxxxxxxxxx Xxxxxxx with a copy to: 0000 Xxxxxxxxxx Xxxxxxx |
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[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT]
KEYBANK NATIONAL ASSOCIATION,
Individually and as Administrative Agent
By:/s/ Xxxxxx Xxxx
Print Name: Xxxxxx Kara
Title: Assistant Vice President
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/689-5819
Attention: Xxxxx Xxxxxx
With a copy to:
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/689-5819
Attention: Xxxxxx Kara
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[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
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ROYAL BANK OF CANADA, |
Individually and as Documentation Agent
By:/s/ Xxxxx Xxxxx
Print Name: Xxxxx Xxxxx
Title: Authorized Signatory
Brookfield Place, 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Phone: 212/000-0000
Attention: Xxxxx Xxxxx
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U.S. BANK NATIONAL ASSOCIATION, |
Individually and as Documentation Agent
By:/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
000 X. XxXxxxx Xx., 00xx Xxxxx
Xxxxxxx, XX 00000
Telephone: 312/000-0000
Facsimile: 312/325-8853
Attention: Xxxx X. Xxxxxxx
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CITIZENS, N.A., Individually and as Documentation Agent |
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
0000 Xxxxxxxx Xxxxxx, XXX000
Xxxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx
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[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
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THE BANK OF NOVA SCOTIA,
Individually and as Documentation Agent
By:/s/ Xxxx Xxxx
Print Name: Xxxx Xxxx
Title: Director and Execution Head
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx, Xxxxx 00
Xxxxxxx, XX X0X 0X0 Xxxxxx
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxx Xxxx
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JPMORGAN CHASE BANK, N.A.
By:/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Phone: 212/000-0000
Facsimile: 212/270-2157
Attention: Xxxxxx Xxxxx
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[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
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By:/s/ Xxxxx Xxxx
Print Name: Xxxxx Xxxx
Title: Managing Director
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 212/000-0000
Facsimile: 212/635-7065
Attention: Xxxxx Xxxx
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PNC BANK, NATIONAL ASSOCIATION,
Individually
By:/s/ Xxxxxx X. Xxxxxxxxx
Print Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
0000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/222-6060
Attention: Xxxxxx X. Xxxxxxxxxx
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REGIONS BANK |
By:/s/ T. Xxxxxxx Xxxxxx
Print Name: T. Xxxxxxx Xxxxxx
Title: Vice President
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 469/000-0000
Facsimile: 469/608-2842
Attention: T. Xxxxxxx Xxxxxx
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SUMITOMO MITSUI BANKING CORPORATION |
By:/s/ Xxxxx Xxxxx
Print Name: Xxxxx Xxxxx
Title: Managing Director
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/224-4887
Attention: Mr. Xxxxxx Xxx
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THE HUNTINGTON NATIONAL BANK |
By:/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice-President
000 Xxxxxx Xxxxxx XX00
Xxxxxxxxx, Xxxx 00000
Telephone: 216/000-0000
Facsimile: 877/834-3517
Attention: Xxxxx X. Xxxxxxx
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CAPITAL ONE, NATIONAL ASSOCIATION
By:/s/ Xxxxxx Xxxxxx
Print Name: Xxxxxx Xxxxxx
Title: Director
0000 Xxxxxxx Xxx Xxxxx
XxXxxx, XX 00000
Phone: 000-000-0000
Facsimile: 703-720-2023
Attention: Xxxxxx Xxxxxx
Vice President
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XXXXXXX XXXXX BANK USA |
By:/s/ Xxxxx Xxxxxxx
Print Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
c/o Goldman Sachs & Co.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Phone: 917/000-0000
Attention: Xxxxx Xxxxxxx
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By:/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice-President
Xxxxx Fargo Bank
00 X. Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
With a copy to:
Xxxx Xxxxxx
Loan Administrator
Xxxxx Fargo Bank
000 X. Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
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By:/s/ Xxxx X. Xxxxxxx
Print Name: Xxxx X. Xxxxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 212/000-0000
Facsimile: 646/688-2052
Attention: Xxxx X. Xxxxxxx
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[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
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By:/s/ J. Xxxxxxx Xxxxxxxxx
Name: J. Xxxxxxx Xxxxxxxxx
Title: Vice President
First Tennessee Bank
000 Xxxxxx Xxxxxx 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Phone: 423/000-0000
Facsimile: 423/757-4040
Attention: Xxxxxxx Xxxxxxxxx
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, INC.
By:/s/ Xxxxx Xxxxxxx
Print Name: Xxxxx Xxxxxxx
Title: Managing Director
By:/s/ Xxxxxxx X. Xxxxxxxxx
Print Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
000 Xxxxxxxx Xxxxx #000
Xxxxxx, Xxxxx 00000
Phone: 214/000-0000
Facsimile: 214/740-7910
Attention: Xxxxxx Xxxxx
[SIGNATURE PAGE TO THE THIRD AMENDMENT TO
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