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EXHIBIT 4.1
THIRD AMENDMENT TO FIFTH AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
This Third Amendment to the Fifth Amended and Restated Revolving
Credit
Agreement (this "Amendment") is made as of January 13, 2005, by
and among
Developers Diversified Realty Corporation, a corporation
organized under the
laws of the State of Ohio (the "Borrower"), JPMorgan Chase Bank,
N.A. (successor
by merger to Bank One, NA (main office, Chicago, Illinois)), and
the several
banks, financial institutions and other entities from time to
time parties to
this Amendment (the "Lenders"), and JPMorgan Chase Bank, N.A.,
not individually,
but as "Administrative Agent."
R E C I T A L S
A. Borrower, Administrative Agent, certain of the Lenders and
former
lenders have entered into a Fifth Amended and Restated Credit
Agreement dated as
of December 12, 2003, as previously amended as of May 13, 2004
and July 27, 2004
(as further amended, the "Credit Agreement"). All capitalized
terms used herein
and not otherwise defined shall have the meanings given to them
in the Credit
Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders
have agreed
to provide a revolving credit facility to Borrower in an
aggregate principal
amount of up to $1,000,000,000 (the "Facility"). The Borrower,
the
Administrative Agent and the Lenders now desire to amend the
Credit Agreement in
order to, among other things allow additional qualified entities
to borrow and
receive Advances under the Facility.
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:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are
incorporated into
and made part of this Amendment.
2. The following definitions have been added to Article I of the
Credit
Agreement as follows:
"Qualified Borrower" means DDR PR Ventures LLC, S.E. and any
other
Wholly-Owned Subsidiary of Borrower, the Indebtedness of which,
in all
cases, shall be guaranteed by the Borrower.
"Qualified Borrower Guaranty" means a full and unconditional
guaranty of
payment in the form of Exhibit A attached hereto, enforceable
against
Borrower for the payment of a Qualified Borrower's debt or
obligation to
the Lenders pursuant to this Agreement.
"Qualified Borrower Note" means a promissory note, in
substantially the
same form of Exhibit B hereto, duly executed by the Qualified
Borrower and
payable to the order of a
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Lender in the amount of its Commitment, including any
amendment,
modification renewal or replacement of such promissory note.
3. From and after the Effective Date (as defined in Section 8 of
this
Amendment), a Qualified Borrower shall have the right to request
Advances,
subject to all of the same terms and conditions as are
applicable to the
Borrower provided that Borrower gives Administrative Agent
thirty days prior
notice of its intention to have a Qualified Borrower other than
DDR PR Ventures
LLC, S.E.. Following receipt of such a notice, Administrative
Agent agrees to
promptly notify the Lenders of Borrower's intention to have an
additional
Qualified Borrower. As a condition to any Advance to a Qualified
Borrower
(including DDR PR Ventures LLC, S.E.) such Qualified Borrower
shall have
executed and delivered a Qualified Borrower Note to each of the
Lenders, and
Borrower shall have executed and delivered a Qualified Borrower
Guaranty
relating to amounts to be borrowed by such Qualified Borrower,
and
Administrative Agent shall have received the items specified in
Schedule 1
attached hereto with respect to such Qualified Borrower. If an
Advance is
requested by a Qualified Borrower, the Credit Agreement shall be
deemed modified
such that at any place where the term "Borrower" currently
appears, such
provision shall be modified to also include and apply to any
such Qualified
Borrower, as the context may require, and any reference to a
"Note" shall
include and apply to any Qualified Borrower Note, as the context
may require.
4. Any Notes previously delivered by the Borrower to the Lenders
shall be
deemed to evidence only the Obligations of Borrower to the
Lenders and those
Notes shall not be deemed modified in any way by this Amendment.
Further, from
and after the Effective Date, any Notes issued by the Borrower
to any new
Lenders will be Notes representing only the Obligations of
Borrower to the
Lenders.
5. If a Qualified Borrower issues any Qualified Borrower Notes
to the
Lenders or New Lenders, such Qualified Borrower shall
automatically become a
party to the Credit Agreement and be bound by the covenants
contained therein
(other then the covenants contained in Section 6.10). DDR PR
Ventures LLC, S.E.
is hereby added as a party to the Credit Agreement on the date
hereof.
6. The Borrower and any Qualified Borrower which is a party
hereto, hereby
represent and warrant that as of the Effective Date there is no
Default or
Unmatured Default, the representations and warranties contained
in Article V of
the Credit Agreement are true and correct in all material
respects as of such
date and the Borrower and each Qualified Borrower have no
offsets or claims
against any of the Lenders. DDR PR Ventures LLC, S.E. hereby
represents and
warrants that it has full power and authority to become a
borrower under the
Credit Agreement and to execute the Qualified Borrower Note to
be delivered by
it.
7. Except as specifically modified hereby, the Credit Agreement
is and
remains unmodified and in full force and effect and is hereby
ratified and
confirmed. All references in the Loan Documents to the "Credit
Agreement"
henceforth shall be deemed to refer to the Credit Agreement as
amended by this
Amendment.
8. The "Effective Date" shall be the date on which all of the
following
conditions shall have been fulfilled:
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(a) No Unmatured Default or Default then exists.
(b) This Amendment shall have been executed by Borrower,
Administrative Agent, and the Required Lenders.
(c) Each of the Subsidiary Guarantors shall have executed an
Amendment to the Subsidiary Guaranty pursuant to which they
consent to this Amendment and agree that the Subsidiary
Guaranty covers all borrowings by a Qualified Borrower.
(d) The representations and warranties set forth in Paragraph
6
shall be true and correct as of such date.
9. The Borrower agrees to reimburse the Administrative Agent for
all
reasonable out-of-pocket expenses (including legal fees and
expenses) incurred
in connection with the preparation, negotiation and consummation
of this
Amendment.
10. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment
as of the date first written above.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By: /s/ WILLIAM H. SCHAFER
-----------------------------------------
Print Name: William H. Schafer
Title: Senior Vice President and CFO
3300 Enterprise Parkway
Beachwood, Ohio 44122
Phone: 216/755-5506
Facsimile: 216/755-1506
Attention: Scott A. Wolstein
DDR PR VENTURES LLC, S.E.
By: /s/ DAVID E. WEISS
-----------------------------------------
Print Name: David E. Weiss
Title: Vice President
S-1
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JPMorgan Chase Bank, N.A. (successor by
merger to Bank One, NA (main office
Chicago)) Individually and as Administrative
Agent
By: /s/ TIMOTHY CAREW
-----------------------------------------
Print Name: Timothy Carew
Title: Director, Capital Markets
1 Bank One Plaza, IL 1-0315
Chicago, Illinois 60670
Phone: 312/325-3114
Facsimile: 312/325-3122
Attention: Large Corporate Real Estate
S-2
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BANK OF AMERICA, N.A.,
Individually and as Syndication Agent
By: /s/ MICHAEL W. EDWARDS
-----------------------------------------
Print Name: Michael W. Edwards
Title: Senior Vice President
231 South LaSalle Street
IL1-231-10-35
Chicago, IL 60604
Phone: 312/828-5175
Facsimile: 312/974-4970
Attention: Mr. Michael W. Edwards
FLEET NATIONAL BANK
Individually and as Documentation Agent
By: /s/ MICHAEL W. EDWARDS
-----------------------------------------
Print Name: Michael W. Edwards
Title: Senior Vice President
231 South LaSalle Street
IL1-231-10-35
Chicago, IL 60604
Phone: 312/828-5175
Facsimile: 312/974-4970
Attention: Mr. Michael W. Edwards
S-3
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COMMERZBANK AG,
Individually and as Documentation Agent
By: /s/ CHRISTIAN BERRY
-----------------------------------------
Print Name: Christian Berry
Title: Vice President
and by:
By: /s/ JAMES BRETT
-----------------------------------------
Print Name: James Brett
Title: Asst Treasurer
2 World Financial Center
New York, NY 10281-1050
Phone: 212/400-7569
Facsimile: 212/266-7565
Attention: Mr. Douglas Traynor
S-4
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WACHOVIA BANK, NA.,
Individually and as Documentation Agent
By: /s/ CATHY A. CASEY
-----------------------------------------
Print Name: Cathy A. Casey
Title: Director
Mail Code NC-0172, 16th Floor
301 S. College Street
Charlotte, NC 28288
Phone: 704/383-6506
Facsimile: 704/383-6205
Attention: Mr. Matt Ricketts
S-5
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WELLS FARGO BANK, N.A.,
Real Estate Finance Group,
Individually and as Documentation Agent
By: /s/ SCOTT S. SOLIS
-----------------------------------------
Print Name: Scott S. Solis
Title: Vice President
123 North Wacker Drive
Suite 1900
Chicago, IL 60606
Phone: 312/269-4818
Facsimile: 312/782-0969
Attention: Mr. Scott Solis
S-6
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US BANK N.A.,
Individually and as Managing Agent
By:_________________________________________
Print Name: Mark O. Conzelmann
Title: Assistant Vice President
1350 Euclid Avenue
Cleveland, OH 44115
Phone: 216/623-9210
Facsimile: 216/241-0164
Attention: Mr. Mark Conzelmann
S-7
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DEUTSCHE BANK TRUST COMPANY AMERICAS
Individually and as Co-Agent
By: /s/ STEVEN P. LAPHAM
-----------------------------------------
Print Name: Steven P. Lapham
Title: Managing Director
200 Crescent Court
Suite 550
Dallas, Texas 75201
Phone: 214-740-7913
Facsimile: 214-740-7910
Attention: Mr. Gerry Dupont
S-8
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EUROHYPO AG, NEW YORK BRANCH
Individually and as Co-Agent
By: /s/ BEN J. MARCIANO
-----------------------------------------
Print Name: Ben J. Marciano
Title: Managing Director
By: /s/ STEPHEN COX
-----------------------------------------
Print Name: Stephen Cox
Title: Vice President
123 North Wacker Drive
Suite 2300
Chicago, IL 60606
Phone: 312-267-8868
Facsimile: 312-267-8875
Attention: Maureen Slentz
S-9
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ING Real Estate Finance (USA) LLC
Individually and as Co-Agent
By: /s/ DAVID A. MAZUJIAN
-----------------------------------------
Print Name: David A. Mazujian
Title: Managing Director
230 Park Avenue, 12th Floor
New York, NY 10169
Phone: 212/883-2620
Facsimile: 212/883-2734
Attention: Mr. David Mazujian
S-10
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MORGAN STANLEY BANK
Individually and as Co-Agent
By: /s/ DANIEL TWENGE
-----------------------------------------
Print Name: Daniel Twenge
Title: Vice President
1633 Broadway
25th Floor
New York, NY 10019
Phone: 212-537-1532 / 2484
Facsimile: 212-537-1867 / 1866
Attention: Erna Dell'aquila / Edward Henley
S-11
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PNC BANK, NATIONAL ASSOCIATION
Individually and as Co-Agent
By: /s/ MICHAEL E. SMITH
-----------------------------------------
Print Name: Michael E. Smith
Title: Senior Vice President
One PNC Plaza
249 Fifth Avenue, P1-POPP-19-2
Pittsburgh, PA 15222
Phone: 412/768-9135
Facsimile: 412/762-6500
Attention: Mr. Michael Smith
S-12
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THE BANK OF NOVA SCOTIA, NEW YORK AGENCY
By: /s/ R.H. BOESE
-----------------------------------------
Print Name: R.H. Boese
Title: Managing Director
One Liberty Plaza
New York, NY 10006
Phone: 212-225-5170
Facsimile: 212-225-5166
Attention: Neil Crawford
S-13
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ALLIED IRISH BANKS, P.L.C.
New York Branch
By: /s/ ANTHONY O'REILLY
-----------------------------------------
Print Name: Anthony O'Reilly
Title: Vice President
405 Park Avenue
New York, NY 10022
Phone: 212/515-6847
Facsimile: 212/339-8325
Attention: Mr. Anthony O'Reilly
By: /s/ DENISE MAGYER
-----------------------------------------
Print Name: Denise Magyer
Title: Vice President
405 Park Avenue
New York, NY 10022
Phone: 212/515-6847
Facsimile: 212/339-8325
Attention: Ms. Denise Magyer
S-14
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AM SOUTH BANK
By: /s/ ROBERT BLAIR
-----------------------------------------
Print Name: Robert Blair
Title: Vice President
1900 Fifth Avenue North
Birmingham, AL 35203
Phone: 205/326-4071
Facsimile: 205/326-4075
Attention: Mr. Robert Blair
S-15
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COMPASS BANK
By: /s/ JOHANNA DUKE PALEY
-----------------------------------------
Print Name: Johanna Duke Paley
Title: Senior Vice President
15 South 20th Street
15th Floor
Birmingham, AL 35233
Phone: 205/297-3851
Facsimile: 205/297-7994
Attention: Ms. Johanna Duke Paley
S-16
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CITICORP NORTH AMERICA, INC.
By: /s/ BLAKE R. GRONICH
-----------------------------------------
Print Name: Blake R. Gronich
Title: Vice President
390 Greenwich Street, Floor 1
New York, NY 10013
Phone: 212/723-6789
Facsimile: 212/723-8547
Attention: Mr. Blake Gronich
S-17
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ERSTE BANK
By: /s/ GREGORY T. APTMAN
-----------------------------------------
Print Name: Gregory T. Aptman
Title: Vice President
By: /s/ BRYAN LYNCH
-----------------------------------------
Print Name: Bryan Lynch
Title: First Vice President
280 Park Avenue
West Building
New York, NY 10017
Phone: 212/984-5638
Facsimile: 212/984-5627
Attention: Mr. Gregory Aptman
S-18
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THE HUNTINGTON NATIONAL BANK
By: /s/ SUZANNE HAMILTON
-----------------------------------------
Print Name: Suzanne Hamilton
Title: Vice President
917 Euclid Avenue
Cleveland, OH 44115
Phone: 216/515-0683
Facsimile: 216/515-6369
Attention: Mr. Richard Goss
S-19
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LA SALLE BANK, N.A.
By: /s/ ROBERT E. GOECKEL
-----------------------------------------
Print Name: Robert E. Goeckel
Title: AVP
135 South LaSalle Street
Suite 1225
Chicago, IL 60603
Phone: 312/904-4705
Facsimile: 312/904-6691
Attention: Mr. Robert Goeckel
S-20
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LEHMAN COMMERCIAL PAPER INC.
By: /s/ Francis X. Gilhool
-----------------------------------------
Print Name: Francis X. Gilhool
Title: Authorized Signatory
399 Park Ave., 8th Floor
New York, NY 10022
Phone: 212/526-5153
Facsimile: 646-758-4672
Attention: Mr. Tom Buffa
S-21
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MELLON BANK, N.A.
By: /s/ STEVEN R. RICHARD
-----------------------------------------
Print Name: Steven R. Richard
Title: Senior Vice President
Suite 5325
One Mellon Center
Pittsburgh, PA 15258-0001
Phone: 412/234-9625
Facsimile: 412/234-8657
Attention: Mr. Thomas Greulich
S-22
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THE NORTHERN TRUST COMPANY
By: /s/ ROBERT R. WIARDA
-----------------------------------------
Print Name: Robert R. Wiarda
Title: Vice President
50 South LaSalle Street
Chicago, IL 60675
Phone: 312/444-3380
Facsimile: 312/444-7028
Attention: Mr. Robert Wiarda
S-23
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SOUTHTRUST BANK
By: /s/ CATHY A. CASEY
-----------------------------------------
Print Name: Cathy A. Casey
Title: Director
301 S. College Street, 16th Floor
NC 0172
Charlotte, NC 28288
Phone: 404/532-5262
Facsimile: 404/532-5280
Attention: Mr. Matt Ricketts
S-24
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SUMITOMO MITSUI BANKING CORPORATION
By: /s/ WILLIAM M. GINN
-----------------------------------------
Print Name: William M. Ginn
Title: General Manager
277 Park Avenue
New York, NY 10172
Phone: 212-224-4178
Facsimile: 212-224-4887
Attention: Charles J. Sullivan
S-25
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SUNTRUST BANK
By: /s/ NANCY B. RICHARDS
-----------------------------------------
Print Name: Nancy B. Richards
Title: Vice President
8330 Boone Boulevard, 8th Floor
Vienna, VA 22182
Phone: 703/442-1557
Facsimile: 703/442-1570
Attention: Ms. Nancy Richards
S-26
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UBS Loan Finance LLC
By: /s/ WINSLOWE OGBOURNE
-----------------------------------------
Print Name: Winslowe Ogbourne
Title: Associate Director
Banking Products Services, U.S.
By: /s/ BARBARA EZELL-McMICHAEL
-----------------------------------------
Print Name: Barbara Ezell-McMichael
Title: Associate Director
Banking Products Services, U.S.
677 Washington Boulevard
Stamford, CT 06901
Phone: 203-719-3845
Facsimile: 203-719-3888
Attention: Christopher Aitkin
S-27
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COMERICA BANK
By: /s/ JAMES GRAYCHECK
-----------------------------------------
Print Name: James Graycheck
Title: Assistant Vice President
500 Woodward Avenue
MC 3256
Detroit, MI 48226
Phone: 313-222-1276
Facsimile: 313-222-9295
Attention: James Graycheck
S-28
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ GREG CULLUM
-----------------------------------------
Print Name: Greg Cullum
Title: Senior Vice President
701 Market Street
Chattanooga, TN 37402
Phone: 423-757-4272
Facsimile: 423-757-4040
Attention: Greg Cullum
S-29
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KEYBANK NATIONAL ASSOCIATION
By: /s/ DONALD WOODS
-----------------------------------------
Print Name: Donald Woods
Title: Assistant Vice President
127 Public Square
8th Floor
Cleveland, OH 44114
Phone: 216-689-7547
Facsimile: 216-689-4997
Attention: Donald Woods
S-30
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SOVEREIGN BANK
By: /s/ T. GREGORY DONOHUE
-----------------------------------------
Print Name: T. Gregory Donohue
Title: Senior Vice President
75 State Street
MA 1 - SST - 0441
Boston, MA 02109
Phone: 617-757-5578
Facsimile: 617-757-5652
Attention: T. Gregory Donohue
S-31
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EXHIBIT A
QUALIFIED BORROWER GUARANTY
Exhibit A-1
<PAGE>
GUARANTY
This Guaranty is made as of January 13, 2005 by Developers
Diversified
Realty Corporation, a corporation organized under the laws of
the State of Ohio
("Guarantor, and in its capacity as a borrower under the Credit
Agreement
described below, a "Borrower"), to and for the benefit of
JPMorgan Chase Bank,
N.A. (successor by merger to Bank One, NA (Illinois)), 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. Guarantor has requested that the Lenders make a revolving
credit
facility available to Borrower in an aggregate principal amount
of
$1,000,000,000 (the "Facility").
B. The Lenders have agreed to make available the Facility to
Borrower pursuant to the terms and conditions set forth in a
Fifth Amended and
Restated Credit Agreement dated as of December 12, 2003, as
amended, between
Guarantor, as
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