EXHIBIT 4.2
FIRST AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Sixth Amended and Restated Credit Agreement (this
"Amendment") is made as of this 28th day of June, 2005 by and among and
Developers Diversified Realty Corporation, a corporation organized under the
laws of the State of Ohio (the "Borrower"), JPMorgan Chase Bank, N.A., not
individually, but as "Administrative Agent", and the several banks, financial
institutions and other entities from time to time parties to this Agreement (the
"Lenders").
RECITALS
A. Borrower, Administrative Agent, and the Lenders are parties to a Sixth
Amended and Restated Credit Agreement dated as of March 30, 2005 (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. Borrower plans to enter into a Secured Term Loan Agreement with Keybank
National Association, a national banking association, as administrative agent,
and the several banks, financial institutions and other entities from time to
time parties thereto in the aggregate principal face amount of up to Two Hundred
Twenty Million and No/100 Dollars ($220,000,000.00) (the "Keybank Facility"),
pursuant to which, certain subsidiaries of Borrower which hold Capital Stock in
other Subsidiaries owning encumbered Projects will grant a security interest in
such Capital Stock and provide limited guaranties for the benefit of the lenders
thereto.
C. Borrower has requested changes in the form of Subsidiary Guaranty and
the definition of Unencumbered Assets to accommodate the fact that certain
Subsidiary Guarantors own both Unencumbered Assets and interests in such
encumbered Projects.
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 "Unencumbered Assets" in Article 1 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"Unencumbered Asset" means, any Project located in the United States,
Puerto Rico or an Acceptable Jurisdiction 100% of which is owned in fee simple
or ground leased by the Borrower or a Subsidiary Guarantor (provided that a
Project which is ground leased shall be included as an Unencumbered Asset only
if such ground lease is a Financeable Ground Lease) which, as of any date of
determination, (a) is not subject to any Liens or claims (including restrictions
on transferability or assignability) of any kind (including any such Lien, claim
or restriction imposed by the organizational documents of any Subsidiary
Guarantor) other than (i)
Permitted Liens set forth in Sections 6.16(i) through 6.16(iv)), and (ii)
restrictions on transferability in the case of a Qualifying Jointly-Owned
Subsidiary (b) is not subject to any agreement (including (i) any agreement
governing Indebtedness and (ii) if applicable, the organizational documents of
any Subsidiary Guarantor) which prohibits or limits the ability of the Borrower
or any Subsidiary Guarantor to create, incur, assume or suffer to exist any Lien
upon any assets or Capital Stock of the Borrower or any Subsidiary Guarantor,
including, without limitation, any negative pledge or similar covenant or
restriction, except as permitted under Section 19 of the Subsidiary Guaranty,
(c) is not subject to any agreement (including any agreement governing
Indebtedness incurred in order to finance or refinance the acquisition of such
asset) which entitles any Person to the benefit of any Lien (other than
Permitted Liens set forth in Sections 6.16(i) through 6.16(iv)) on any assets or
Capital Stock of the Borrower or any Subsidiary Guarantor, except as permitted
under Section 19 of the Subsidiary Guaranty, or would entitle any Person to the
benefit of any Lien (other than Permitted Liens set forth in Sections 6.16(i)
through 6.16(iv)) on such assets or Capital Stock upon the occurrence of any
contingency (including, without limitation, pursuant to an "equal and ratable"
clause), and (d) either has been improved with an income-producing building or
buildings which are substantially completed and occupied or is a Pre-Leased
Project Under Construction.
3. Exhibit F of the Credit Agreement, the form of Subsidiary Guaranty, is
hereby amended and restated in its entirety by the attached Exhibit F. Borrower
shall cause the Subsidiary Guarantors to execute and deliver such Subsidiary
Guaranty as a requirement for the effectiveness of this Amendment
4. 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, 2005 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."
5. 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" or the
"Subsidiary Guaranty" henceforth shall be deemed to refer to the Credit
Agreement and the Subsidiary Guaranty as amended by this Amendment.
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6. 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.
7. This Amendment shall become effective when (i) it has been executed by
Borrower, Administrative Agent, and the Required Lenders; (ii) Borrower has
delivered a fully executed Subsidiary Guaranty in the form attached hereto; and
(iii) the Keybank Facility has closed.
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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.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Senior Vice President
DDR PR VENTURES LLC, S.E.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Senior Vice President
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1775
Attention: Chief Financial Officer
with a copy to:
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1560
Attention: General Counsel
S-1
JPMORGAN CHASE BANK, N.A.,
Individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President
1 Bank One Plaza, IL 1-0315
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/325-3122
Attention: Real Estate and Lodging
Investment Banking
S-2
BANK OF AMERICA, N.A.,
Individually and as Syndication Agent
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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COMMERZBANK AG,
Individually and as Documentation Agent
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------------
Print Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxx
--------------------------------------
Print Name: Xxxxx Xxxxx
Title: Assistant Treasurer
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx Xxxxxxx
S-4
WACHOVIA BANK, NA.,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
------------------------
Print Name: Xxxxx X. Xxxxx
Title: Director
Mail Code XX-0000, 00xx Xxxxx
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 704/000-0000
Facsimile: 704/383-6205
Attention: Xx. Xxx X. Xxxx
S-5
XXXXX FARGO BANK, N.A.,
Real Estate Finance Group,
Individually and as Documentation Agent
By: /s/ Xxxxx Xxxxx
----------------------
Print Name: Xxxxx Xxxxx
Title: Vice President
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxx
S-6
US BANK N.A.,
Individually and as Managing Agent
By: /s/ Xxxxxx Xxxxx
-----------------------------
Print Name: Xxxxxx Xxxxx
Title: Vice President
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Mr. Xxxxxx Xxxxx
S-7
THE BANK OF NOVA SCOTIA
Individually and as Managing Agent
By: /s/ Xxxx Xxxxxxxx
------------------------
Print Name: Xxxx Xxxxxxxx
Title: Director
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxx Xxxxxxxx
S-8
DEUTSCHE BANK TRUST COMPANY AMERICAS
Individually and as Managing Agent
By: /s/ Xxxxxx Xxxxx
----------------------
Print Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
----------------------
Print Name: Xxxxx Xxxxxxx
Title: Director
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxxx
[Signature Page to DDR First Amendment to Sixth Amended and
Restated Credit Agreement dated as of June 28, 2005]
X-0
XXXXXXXX XX, XXX XXXX BRANCH
Individually and as Managing Agent
By: /s/ Xxxx X. Xxxxxx
------------------------
Print Name: Xxxx X. Xxxxxx
Title: Director
and by:
By: /s/ Xxxxxxx Xxx
----------------------
Print Name: Xxxxxxx Xxx
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
With a copy to:
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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ING REAL ESTATE FINANCE (USA) LLC,
Individually and as Managing Agent
By: __________________________
Print Name:
Title:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxxx
S-11
XXXXXX XXXXXXX BANK
Individually and as Managing Agent
By: __________________________
Print Name:
Title:
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000 / 2484
Facsimile: 000-000-0000 / 1866
Attention: Xxxx Dell'aquila / Xxxxxx Xxxxxx
S-12
PNC BANK, N.A.
Individually and as Managing Agent
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
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AM SOUTH BANK
Individually and as Co-Agent
By:____________________________
Print Name:
Title:
0000 Xxxxx Xxxxxx Xxxxx
XXX00
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Mr. Xxxxxx Xxxxx
S-14
THE HUNTINGTON NATIONAL BANK
Individually and as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
000 Xxxxxx Xxxxxx, XX00
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx Xxxx
S-15
LA SALLE BANK, NATIONAL ASSOCIATION
Individually and as Co-Agent
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Vice President
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxxxx
S-16
SOVEREIGN BANK
Individually and as Co-Agent
By: /s/ T. Xxxxxxx Xxxxxxx
-----------------------------
Print Name: T. Xxxxxxx Xxxxxxx
Title: Senior Vice President
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxxxx Xxxxxx
S-17
SUNTRUST BANK
Individually and as Co-Agent
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Print Name: Xxxxx X. Xxxxxxxx
Title: Vice President
0000 Xxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx X. Xxxxxxxx
S-18
UBS LOAN FINANCE LLC
Individually and as Co-Agent
By: /s/ Xxxxxxx X. Saint
------------------------
Print Name: Xxxxxxx X. Saint
Title: Director, Banking Products Services,
US
and by:
By: /s/Winslowe Ogbourne
---------------------------
Print Name: Winslowe Ogbourne
Title: Associate Director, Banking Products
Services, XX
000 Xxxxxxxxxx Xxxx, 0xx xxxxx xxxxx
Xxxxxxxx, XX 0-0000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxxx
S-19
BARCLAYS BANK PLC
Individually and as Co-Agent
By:________________________________
Print Name:________________________
Title:_____________________________
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 212-412-7600
Attention: Xx. Xxxxxx XxXxxxxx
S-20
MANUFACTURERS AND TRADERS TRUST COMPANY
Individually and as Co-Agent
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Vice President
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention Xx. Xxxxx X. Xxxxx
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MIZUHO CORPORATE BANK, LTD.
Individually and as Co-Agent
By:________________________________
Print Name:________________________
Title:_____________________________
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000/4489
Attention: Xx. Xxxxx Xxxxxxxx
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NOMURA FUNDING FACILITY
CORPORATION, LTD.
Individually and as Co-Agent
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Print Name: Xxxxxxx Xxxxxxx
Title: Director
3 Harbour Xxxxxx Xxxxx
0XXX, Xxxxxx 0
Xxxxxxx
Telephone: 00 00 0000 000
Facsimile: 001-35 32 6700 288
Attention: Xxxxxxx Xxxxxxx
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UFJ BANK LIMITED
Individually and as Co-Agent
By:_______________________________
Print Name:_______________________
Title:____________________________
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx XxXxxxxx
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COMERICA BANK
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Print Name: Xxxxx Xxxxxxxxx
Title: AVP
000 Xxxxxxxx Xxxxxx
XX 0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
S-25
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
--------------------
Print Name: Xxxxx Xxxxxx
Title: Vice President
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxx
S-26
XXXXXX COMMERCIAL PAPER INC.
By:_______________________________
Print Name:_______________________
Title:____________________________
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx
S-27
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Print Name: Xxxxxxx X. Xxxx
Title: General Manager
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
S-28
BANCO POPULAR DE PUERTO RICO
By:______________________________
Print Name:______________________
Title:___________________________
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
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CHARTER ONE BANK, N.A.
By: _______________________________
Print Name:
Title:
Citizens Bank
Xxx Xxxxxxxx Xxxxx (XX0000)
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxxxxxxx
S-30
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Print Name: Xxxxxx Xxxxxx
Title: Vice President
00 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxxx
S-31
CITICORP NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx X. Xxxxx
S-32
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Xxxxx 0000
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxx Xxxxxxxx
S-33
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
-----------------------------
Print Name: Xxxx Xxxxxx
Title: Senior Vice President
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxx
S-34
COMPASS BANK
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Attention: Commercial Real Estate
S-35
ALLIED IRISH BANKS, P.L.C.
New York Branch
By: __________________________________
Print Name:
Title: Vice
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/339-8325
Attention: Xx. Xxxxxxx X'Xxxxxx
By:
----------------------------
Print Name:
Title:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/339-8325
Attention: Xx. Xxxxxxx Xxxxxxxxx
S-36
EXHIBIT F
SUBSIDIARY GUARANTY
This Guaranty is made as of _________, 2005 by the parties identified in
the signature pages thereto, and any Joinder to Guaranty hereafter delivered,
together with any additional Subsidiaries that are deemed to be parties to this
Subsidiary Guaranty pursuant to Section 6.13 of the Credit Agreement described
below (collectively, the "Subsidiary Guarantors"), to and for the benefit of
JPMorgan Chase Bank, N.A., individually ("JPMorgan Chase Bank") and as
administrative agent ("Administrative Agent") for itself and the lenders under
the Credit Agreement (as defined below) and their respective successors and
assigns (collectively, the "Lenders").
RECITALS
A. Developers Diversified Realty Corporation ("DDR"), a corporation
organized under the laws of the State of Ohio, and each Subsidiary which is a
Qualified Borrower under the Credit Agreement described below (collectively,
"Borrower"), and Subsidiary Guarantors have requested that the Lenders make a
revolving credit facility available to Borrower in an aggregate principal amount
of $1,000,000,000 subject to increase to up to $1,250,000,000 in accordance with
the terms thereof (the "Facility").
B. The Lenders have agreed to make available the Facility to Borrower
pursuant to the terms and conditions set forth in a Sixth Amended and Restated
Credit Agreement of even date herewith between Borrower, JPMorgan Chase Bank,
individually, and as Administrative Agent, and the Lenders named therein (as
amended, modified or restated from time to time, the "Credit Agreement"). All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Credit Agreement.
C. DDR has executed and delivered or will execute and deliver to the
Lenders promissory notes and competitive notes as evidence of DDR's indebtedness
to each such Lender with respect to the Facility and each Qualified Borrower has
executed and delivered to the Administrative Agent for the benefit of the
Lenders a promissory note as evidence of its indebtedness to the Lenders with
respect to the Facility (the promissory notes described above from DDR and each
Qualified Borrower, together with any amendments or allonges thereto, or
restatements, replacements or renewals thereof, and/or new promissory notes
under the Credit Agreement, are collectively referred to herein as the "Notes").
D. Subsidiary Guarantors are subsidiaries of Borrower. Subsidiary
Guarantors acknowledge that the extension of credit by the Administrative Agent
and the Lenders to Borrower pursuant to the Credit Agreement will benefit
Subsidiary Guarantors by making funds available to Subsidiary Guarantors through
Borrower and by enhancing the financial strength of the consolidated group of
which Subsidiary Guarantors and Borrower are members. The execution and delivery
of this Guaranty by Subsidiary Guarantors are conditions precedent to the
performance by the Lenders of their obligations under the Credit Agreement.
AGREEMENTS
F-1
NOW, THEREFORE, Subsidiary Guarantors, in consideration of the matters
described in the foregoing Recitals, which Recitals are incorporated herein and
made a part hereof, and for other good and valuable consideration, hereby agree
as follows:
1. Subsidiary Guarantors absolutely, unconditionally, and irrevocably
guaranty to each of the Lenders:
(a) the full and prompt payment of the principal of and interest on
the Notes when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all sums
which may now be or may hereafter become due and owing under the Notes,
the Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined in
Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance, and
satisfaction of all of the obligations, duties, covenants, and agreements
of Borrower under the Credit Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations." Subsidiary Guarantors
and Lenders agree that Subsidiary Guarantors' obligations hereunder shall not
exceed the greater of: (i) the aggregate amount of all monies received, directly
or indirectly, by Subsidiary Guarantors from Borrower after the date hereof
(whether by loan, capital infusion or other means), or (ii) the maximum amount
of the Facility Indebtedness not subject to avoidance under Title 11 of the
United States Code, as same may be amended from time to time, or any applicable
state law (the "Bankruptcy Code"). To that end, to the extent such obligations
would otherwise be subject to avoidance under the Bankruptcy Code if Subsidiary
Guarantors are not deemed to have received valuable consideration, fair value or
reasonably equivalent value for its obligations hereunder, each Subsidiary
Guarantor's obligations hereunder shall be reduced to that amount which, after
giving effect thereto, would not render such Subsidiary Guarantor insolvent, or
leave such Subsidiary Guarantor with an unreasonably small capital to conduct
its business, or cause such Subsidiary Guarantor to have incurred debts (or
intended to have incurred debts) beyond its ability to pay such debts as they
mature, as such terms are determined, and at the time such obligations are
deemed to have been incurred, under the Bankruptcy Code. In the event a
Subsidiary Guarantor shall make any payment or payments under this Guaranty each
other guarantor of the Facility Indebtedness shall contribute to such Subsidiary
Guarantor an amount equal to such non-paying Subsidiary Guarantor's pro rata
share (based on their respective maximum liabilities hereunder and under such
other guaranty) of such payment or payments made by such Subsidiary Guarantor,
provided that such contribution right shall be subordinate and junior in right
of payment in full of all the Facility Indebtedness to Lenders.
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Subsidiary
Guarantors agree, on demand by the
F-2
Administrative Agent or the holder of a Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are then or thereafter become
due and owing or are to be performed under the terms of the Notes, the Credit
Agreement, and the other Loan Documents.
3. Subsidiary Guarantors do hereby waive (i) notice of acceptance of this
Guaranty by the Administrative Agent and the Lenders and any and all notices and
demands of every kind which may be required to be given by any statute, rule or
law, (ii) any defense, right of set-off or other claim which Subsidiary
Guarantors may have against Borrower or which Subsidiary Guarantors or Borrower
may have against the Administrative Agent or the Lenders or the holder of a
Note, (iii) presentment for payment, demand for payment (other than as provided
for in Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection and any and all formalities which otherwise might be legally required
to charge Subsidiary Guarantors with liability, (iv) any failure by the
Administrative Agent and the Lenders to inform Subsidiary Guarantors of any
facts the Administrative Agent and the Lenders may now or hereafter know about
Borrower, the Facility, or the transactions contemplated by the Credit
Agreement, it being understood and agreed that the Administrative Agent and the
Lenders have no duty so to inform and that Subsidiary Guarantors are fully
responsible for being and remaining informed by Borrower of all circumstances
bearing on the existence or creation, or the risk of nonpayment of the Facility
Indebtedness or the risk of nonperformance of the Obligations, and (v) any and
all right to cause a marshalling of assets of Borrower or any other action by
any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Subsidiary Guarantors, regardless of the
financial or other condition of Borrower at the time of any such grant or
continuation. The Administrative Agent and the Lenders shall have no obligation
to disclose or discuss with Subsidiary Guarantors the Lenders' assessment of the
financial condition of Borrower. Subsidiary Guarantors acknowledge that no
representations of any kind whatsoever have been made by the Administrative
Agent and the Lenders to Subsidiary Guarantors. No modification or waiver of any
of the provisions of this Guaranty shall be binding upon the Administrative
Agent and the Lenders except as expressly set forth in a writing duly signed and
delivered on behalf of the Administrative Agent and the Lenders. Subsidiary
Guarantors further agree that any exculpatory language contained in the Credit
Agreement, the Notes, and the other Loan Documents shall in no event apply to
this Guaranty, and will not prevent the Administrative Agent and the Lenders
from proceeding against Subsidiary Guarantors to enforce this Guaranty.
4. Subsidiary Guarantors further agree that Subsidiary Guarantors'
liability as guarantor shall in no way be impaired by any renewals or extensions
which may be made from time to time, with or without the knowledge or consent of
Subsidiary Guarantors of the time for payment of interest or principal under a
Note or by any forbearance or delay in collecting interest or principal under a
Note, or by any waiver by the Administrative Agent and the Lenders under the
Credit Agreement, or any other Loan Documents, or by the Administrative Agent or
the Lenders' failure or election not to pursue any other remedies they may have
against Borrower, or by any change or modification in a Note, the Credit
Agreement, or any other Loan Documents, or by the acceptance by the
Administrative Agent or the Lenders of any security or any increase,
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substitution or change therein, or by the release by the Administrative Agent
and the Lenders of any security or any withdrawal thereof or decrease therein,
or by the application of payments received from any source to the payment of any
obligation other than the Facility Indebtedness, even though a Lender might
lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Subsidiary Guarantors shall remain
liable as principal for payment of the Facility Indebtedness and performance of
the Obligations until all indebtedness has been paid in full and the other
terms, covenants and conditions of the Credit Agreement, and other Loan
Documents and this Guaranty have been performed, notwithstanding any act or
thing which might otherwise operate as a legal or equitable discharge of a
surety. Subsidiary Guarantors further understand and agree that the
Administrative Agent and the Lenders may at any time enter into agreements with
Borrower to amend and modify a Note, the Credit Agreement or any of the other
Loan Documents, or any thereof, and may waive or release any provision or
provisions of a Note, the Credit Agreement, or any other Loan Document and, with
reference to such instruments, may make and enter into any such agreement or
agreements as the Administrative Agent, the Lenders and Borrower may deem proper
and desirable, without in any manner impairing this Guaranty or any of the
Administrative Agent and the Lenders' rights hereunder or any of Subsidiary
Guarantors' obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Subsidiary Guarantors
agree that its obligations hereunder shall be joint and several with any and all
other guarantees given in connection with the Facility from time to time.
Subsidiary Guarantors agree that this Guaranty may be enforced by the
Administrative Agent and the Lenders without the necessity at any time of
resorting to or exhausting any security or collateral, if any, given in
connection herewith or with a Note, the Credit Agreement, or any of the other
Loan Documents or by or resorting to any other guaranties, and Subsidiary
Guarantors hereby waive the right to require the Administrative Agent and the
Lenders to join Borrower in any action brought hereunder or to commence any
action against or obtain any judgment against Borrower or to pursue any other
remedy or enforce any other right. Subsidiary Guarantors further agree that
nothing contained herein or otherwise shall prevent the Administrative Agent and
the Lenders from pursuing concurrently or successively all rights and remedies
available to them at law and/or in equity or under a Note, the Credit Agreement
or any other Loan Documents, and the exercise of any of their rights or the
completion of any of their remedies shall not constitute a discharge of any of
Subsidiary Guarantors' obligations hereunder, it being the purpose and intent of
Subsidiary Guarantors that the obligations of such Subsidiary Guarantors
hereunder shall be primary, absolute, independent and unconditional under any
and all circumstances whatsoever. Neither Subsidiary Guarantors' obligations
under this Guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or limitation of the liability of
Borrower under a Note, the Credit Agreement or any other Loan Document or by
reason of Borrower's bankruptcy or by reason of any creditor or bankruptcy
proceeding instituted by or against Borrower. This Guaranty shall continue to be
effective and be deemed to have continued in existence or be reinstated (as the
case may be) if at any time payment of all or any part of any sum payable
pursuant to a Note, the Credit Agreement or any other Loan Document is rescinded
or otherwise required to be returned by the payee upon the insolvency,
bankruptcy, or reorganization of the payor, all as though such payment to such
Lender had not been made, regardless of whether such Lender contested the order
requiring the
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return of such payment. The obligations of Subsidiary Guarantors pursuant to the
preceding sentence shall survive any termination, cancellation, or release of
this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee of all or
a portion of such Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, a Note, or any of the Loan Documents are placed
in the hands of an attorney for collection or is collected through any legal
proceeding; (ii) an attorney is retained to represent the Administrative Agent
or any Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, a Note, the Credit Agreement, or any Loan Document; (iii) an attorney
is retained to enforce any of the other Loan Documents or to provide advice or
other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent the Administrative Agent or any Lender in any other legal
proceedings whatsoever in connection with this Guaranty, a Note, the Credit
Agreement, any of the Loan Documents, or any property subject thereto (other
than any action or proceeding brought by any Lender or participant against the
Administrative Agent alleging a breach by the Administrative Agent of its duties
under the Loan Documents), then Subsidiary Guarantors shall pay to the
Administrative Agent or such Lender upon demand all reasonable attorney's fees,
costs and expenses, including, without limitation, court costs, filing fees and
all other costs and expenses incurred in connection therewith (all of which are
referred to herein as "Enforcement Costs"), in addition to all other amounts due
hereunder.
8. The parties hereto intend that each provision in this Guaranty comports
with all applicable local, state and federal laws and judicial decisions.
However, if any provision or provisions, or if any portion of any provision or
provisions, in this Guaranty is found by a court of law to be in violation of
any applicable local, state or federal ordinance, statute, law, administrative
or judicial decision, or public policy, and if such court should declare such
portion, provision or provisions of this Guaranty to be illegal, invalid,
unlawful, void or unenforceable as written, then it is the intent of all parties
hereto that such portion, provision or provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, that the
remainder of this Guaranty shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not
contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Subsidiary Guarantors now or hereafter
existing is hereby subordinated to the Facility Indebtedness. Subsidiary
Guarantors will not seek, accept, or retain for Subsidiary Guarantors' own
account, any payment from Borrower on account of such subordinated debt at any
time when a Default or Event of Default exists under the Credit Agreement or the
Loan Documents, and any such payments to Subsidiary Guarantors made while any
Default or Event of Default then exists under the Credit Agreement or the Loan
Documents on account of such subordinated debt shall be collected and received
by Subsidiary Guarantors in trust for the Lenders and shall be paid over to the
Administrative Agent on behalf
F-5
of the Lenders on account of the Facility Indebtedness without impairing or
releasing the obligations of Subsidiary Guarantors hereunder.
10. Subsidiary Guarantors hereby subordinate to the Facility Indebtedness
any and all claims and rights, including, without limitation, subrogation
rights, contribution rights, reimbursement rights and set-off rights, which
Subsidiary Guarantors may have against Borrower arising from a payment made by
Subsidiary Guarantors under this Guaranty and agree that, until the entire
Facility Indebtedness is paid in full, not to assert or take advantage of any
subrogation rights of Subsidiary Guarantors or the Lenders or any right of
Subsidiary Guarantors or the Lenders to proceed against (i) Borrower for
reimbursement, or (ii) any other guarantor or any collateral security or
guaranty or right of offset held by the Lenders for the payment of the Facility
Indebtedness and performance of the Obligations, nor shall Subsidiary Guarantors
seek or be entitled to seek any contribution or reimbursement from Borrower or
any other guarantor in respect of payments made by Subsidiary Guarantors
hereunder. It is expressly understood that the agreements of Subsidiary
Guarantors set forth above constitute additional and cumulative benefits given
to the Lenders for their security and as an inducement for their extension of
credit to Borrower.
11. Any amounts received by a Lender from any source on account of any
indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Subsidiary Guarantors hereby submit to personal jurisdiction in the
State of Illinois for the enforcement of this Guaranty and waives any and all
personal rights to object to such jurisdiction for the purposes of litigation to
enforce this Guaranty. Subsidiary Guarantors hereby consent to the jurisdiction
of either the Circuit Court of Xxxx County, Illinois, or the United States
District Court for the Northern District of Illinois, in any action, suit, or
proceeding which the Administrative Agent or a Lender may at any time wish to
file in connection with this Guaranty or any related matter. Subsidiary
Guarantors hereby agree that an action, suit, or proceeding to enforce this
Guaranty may be brought in any state or federal court in the State of Illinois
and hereby waives any objection which Subsidiary Guarantors may have to the
laying of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude the Administrative Agent or a Lender from filing any such action, suit,
or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Subsidiary Guarantors:
F-6
c/o Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
To JPMorgan Chase as Administrative Agent and as a Lender:
JPMorgan Chase Bank, N.A.
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any other Lender, to its address set forth in the
Credit Agreement.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Subsidiary Guarantors and
shall inure to the benefit of the Administrative Agent and the Lenders'
successors and assigns.
15. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
F-7
16. SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY
THEIR ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP
WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
17. From time to time, additional Subsidiaries may be deemed to be parties
to this Guaranty automatically pursuant to Section 6.13 of the Credit Agreement
and from time to time, certain of such parties may execute a joinder
substantially in the form of Exhibit A hereto. Each such Subsidiary shall be a
Subsidiary Guarantor, and be bound by all of the terms and provisions of this
Guaranty, subject to the terms of Section 18.
18. Notwithstanding anything to the contrary contained herein, at such
time as a Subsidiary Guarantor enters into a transaction which prohibits it from
being a Subsidiary Guarantor hereunder it shall be deemed to be automatically
released as a Subsidiary Guarantor provided no Default then exists until such
time, if any, as it again is required to be a Subsidiary Guarantor pursuant to
Section 6.13 of the Credit Agreement. Upon written request from such Subsidiary
Guarantor to confirm such release, and delivery to Administrative Agent of such
documentation supporting the request as Administrative Agent may request,
Administrative Agent will deliver to such Subsidiary Guarantor written evidence
of its release as a Subsidiary Guarantor.
19. Notwithstanding anything to the contrary contained herein, if a
Subsidiary Guarantor which owns more than one Project, either directly or
indirectly through the ownership of Capital Stock in another Subsidiary of
Borrower (a "Multi-Property Guarantor"), owns an interest in any Capital Stock
in a Subsidiary of Borrower that is excluded from being a Subsidiary Guarantor
pursuant to Section 6.13 of the Credit Agreement (an "Excluded Entity"), then
the amounts recoverable by the Lenders from such Multi-Property Guarantor under
this Guaranty shall exclude any and all amounts arising from such Multi-Property
Guarantor's right, title and interest in the Capital Stock of such Excluded
Entity (including, without limitation, any right of such Multi-Property
Guarantor to receive distributions or other payments on account of any Capital
Stock of such Excluded Entity) or from the assets of such Excluded Entity
(whether pursuant to a judgment lien or otherwise).
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IN WITNESS WHEREOF, Subsidiary Guarantors have delivered this Guaranty in
the State of Illinois as of the date first written above.
By:
By:
Its:
By:
By:
Its:
By:
By:
Its:
F-9
EXHIBIT A TO SUBSIDIARY GUARANTY
FORM OF JOINDER TO GUARANTY
THIS JOINDER is executed by __________, a __________ ("Subsidiary"), which
hereby agrees as follows:
1.__________All capitalized terms used herein and not defined in this
Joinder shall have the meanings provided in that certain Subsidiary Guaranty
(the "Guaranty") dated as of __________, 200_ executed for the benefit of
JPMorgan Chase Bank, N.A., as Administrative Agent for itself and certain other
lenders, with respect to a loan from the Lenders to Developers Diversified
Realty Corporation ("Borrower").
2.__________As required by the Credit Agreement described in the Guaranty,
Subsidiary is executing this Joinder to become a party to the Guaranty.
3.__________Each and every term, condition, representation, warranty, and
other provision of the Guaranty, by this reference, is incorporated herein as if
set forth herein in full and the undersigned agrees to fully and timely perform
each and every obligation of a Subsidiary Guarantor under such Guaranty.
[INSERT SIGNATURE BLOCK]
