EX-10 4 l07640aexv10.txt EXHIBIT 10 FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT Exhibit 10 FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT This First Amendment to Fifth Amended and Restated Credit Agreement (this "Amendment") is made as of this 13th day of May, 2004 by and Developers Diversified Realty Corporation, a corporation organized under the laws of the State of Ohio (the "Borrower"), Bank One, NA, having its principal office in Chicago, Illinois and the several banks, financial institutions and other entities from time to time parties to this Agreement (the "Lenders"), and Bank One, NA, not individually, but as "Administrative Agent". RECITALS A. Borrower, Administrative Agent, and the Lenders are parties to a Fifth Amended and Restated Credit Agreement dated as of December 12, 2003 (the "Credit Agreement"). All capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings described as such terms in the Credit Agreement. B. Pursuant to the terms of the Credit Agreement, the Lenders made available a credit facility with a potential Aggregate Commitment of $650,000,000. C. Borrower has requested a change in certain terms contained in the Credit Agreement and the Lenders have agreed to such a change on the terms contained herein. NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: AMENDMENTS 1. The foregoing recitals to this Amendment are incorporated into and made part of this Amendment. 2. The following definitions have been added to Article I of the Credit Agreement as follows: "Acquisition Asset" means an asset acquired by Borrower or its Subsidiary after the Amendment Effective Date, until such asset has been owned for at least a period of one (1) year, at which time it will no longer be treated as an Acquisition Asset. "Amendment" means the First Amendment to Fifth Amended and Restated Credit Agreement among Borrower, the Lenders and Administrative Agent. "Amendment Effective Date" means the date on which: (i) the Amendment has been executed by Borrower, Administrative Agent, and each of the Lenders, and (ii) the initial acquisition of a portion of the Benderson Projects with a purchase price of not less than $700,000,000 has been closed. "Benderson Projects" means those 110 retail assets to be acquired by the Borrower comprised of 18,800,000 square feet located mainly in the Eastern United States. 3. The definition of "Consolidated Capitalization Value" in Article I of the Credit Agreement is hereby amended and restated as follows: "Consolidated Capitalization Value" means, as of any date, an amount equal to the sum of (i) Consolidated Cash Flow for the most recent period of two consecutive fiscal quarters for which the Borrower has reported results (excluding any portion of Consolidated Cash Flow attributable to: (A) Assets Under Development, (B) Projects owned by Investment Affiliates which are encumbered by First Mortgage Receivables, and (C) Acquisition Assets multiplied by 2, and divided by 0.090, plus (ii) Acquisition Assets valued at the lower of their acquisition cost or market value, as determined in accordance with GAAP. 4. The definition of "Value of Unencumbered Assets" in Article I of the Credit Agreement is hereby amended and restated as follows: "Value of Unencumbered Assets" means, as of any date, the sum of (A) the amount determined by dividing the Net Operating Income for each Project which is an Unencumbered Asset (excluding the Net Operating Income for any Acquisition Asset which is an Unencumbered Asset) as of such date for a calculation period which shall be either the immediately preceding two (2) full fiscal quarters or, if so requested by Borrower or the Administrative Agent, the one (1) immediately preceding full fiscal quarter and the then current partial quarter (in all cases as annualized) by 0.090 (provided that not more than 15% of the Value of Unencumbered Assets with respect to Projects shall be attributable to Unencumbered Assets which are ground leased) plus (B) for each Pre-Leased Project Under Construction, 100% of the then-current book value, as determined in accordance with GAAP, of such Pre-Leased Project Under Construction, provided that the aggregate amount added to value under this clause (B) shall not exceed ten percent (10%) of the total Value of Unencumbered Assets, plus (C) cash from like-kind exchanges on deposit with a qualified intermediary (provided that not more than 5% of the Value of Unencumbered Assets shall be attributable to the proceeds of this clause (C), except that such cap shall be $200,000,000 during the 1031 exchange period relating to the sale of assets to the Macquarie Fund from the initial two closings of the Macquarie Fund). If a Project is no longer owned as of the date of determination, then no value shall be included from such Project, except for purposes of such financial covenant comparing the Net Operating Income from Unencumbered Assets to Consolidated Interest Expense under the Credit Agreement. Notwithstanding the foregoing and with respect to any Acquisition Asset which is an Unencumbered Asset, each such Acquisition Asset shall be valued at the lower of its acquisition cost or market value, as determined in accordance with GAAP. 5. Section 2.13 (i) and (ii) of the Credit Agreement is hereby amended to delete the reference to "local time" and to insert "Chicago Time" in lieu thereof. 2 6. Section 6.13 of the Credit Agreement is hereby amended by deleting the reference to "securitized" in the two places where it appears. 7. Section 6.21 (i) of the Credit Agreement is hereby amended and restated as follows: (i) Consolidated Outstanding Indebtedness to exceed sixty percent (60%) of Consolidated Market Value as of any date; 8. Section 6.21 (iv) of the Credit Agreement is hereby amended and restated as follows: (iv) the Value of Unencumbered Assets to be less than 1.60 times the Consolidated Senior Unsecured Indebtedness as of any date; 9. Schedule 1, Schedule 2, Schedule 3 and Schedule 6 of the Credit Agreement are hereby deleted in their entirety and replaced with the attached Schedule 1, Schedule 2, Schedule 3 and Schedule 6. 10. Borrower hereby represents and warrants that: (a) no Default or Unmatured Default exists under the Loan Documents; (b) the Loan Documents are in full force and effect and Borrower has no defenses or offsets to, or claims or counterclaims relating to, its obligations under the Loan Documents; (c) there has been no material adverse change in the financial condition of Borrower as shown in its March 31, 2004 financial statements; (d) Borrower has full corporate power and authority to execute this Amendment and no consents are required for such execution other than any consents which have already been obtained; and (e) all representations and warranties contained in Article 5 of the Credit Agreement are true and correct as of the date hereof and all references therein to "the date of this Agreement" shall refer to "the date of this Amendment." 11. Except as specifically modified hereby, the Credit Agreement is and remains unmodified and in full force and effect and is hereby ratified and confirmed. All references in the Loan Documents to the "Credit Agreement" henceforth shall be deemed to refer to the Credit Agreement as amended by this Amendment. 12. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this 3 Amendment by signing any such counterpart. This Amendment shall be construed in accordance with the internal laws (and not the law of conflicts) of the State of Illinois, but giving effect to federal laws applicable to national banks. 13. This Amendment shall become effective on the Amendment Effective Date (as defined in Section 2). 4 IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have executed this Amendment as of the date first above written. DEVELOPERS DIVERSIFIED REALTY CORPORATION By: /s/ Joan U. Allgood ---------------------------------------- Print Name: -------------------------------- Title: ------------------------------------- 3300 Enterprise Parkway Beachwood, Ohio 44122 Phone: 216/755-5506 Facsimile: 216/755-1506 Attention: Scott A. Wolstein S-1 BANK ONE, NA, Individually and as Administrative Agent By: /s/ Timothy Carew ----------------------------------------- Print Name: Timothy Carew Title: Director, Capital Markets 1 Bank One Plaza Mail Code: IL 1-0315 Chicago, Illinois 60670 Phone: 312/325-3114 Facsimile: 312/325-3122 Attention: Large Corporate Real Estate S-2 BANK OF AMERICA, N.A., Individually and as Syndication Agent By: /s/ Michael W. Edwards ----------------------------------------- Print Name: Michael W. Edwards Title: Managing Director 231 South LaSalle Street Chicago, IL 60697 Phone: 312/828-5175 Facsimile: 312/974-4970 Attention: Mr. Michael W. Edwards S-3 COMMERZBANK AG, Individually and as Documentation Agent By: /s/ Michael Zanolli ---------------------------------------- Print Name: Michael Zanolli Title: Senior Vice President and by: By: /s/ James Brett ---------------------------------------- Print Name: James Brett Title: Assistant Treasurer 2 World Financial Center New York, NY 10281-1050 Phone: 212/400/7569 Facsimile: 212/266-7565 Attention: Mr. Douglas Traynor S-4 FLEET BANK, Individually and as Documentation Agent By: /s/ Michael W. Edwards ---------------------------------------- Print Name: Michael W. Edwards Title: Managing Director 231 South LaSalle Street Chicago, IL 60697 Phone: 312/828-5175 Facsimile: 312/974-4970 Attention: Mr. Michael W. Edwards S-5 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 Suite 1900 Chicago, IL 60606 Phone: 312/269-4818 Facsimile: 312/782-0969 Attention: Mr. Scott Solis S-6 WACHOVIA BANK, NA., Individually and as Managing Agent By: /s/ Cathy Casey ---------------------------------------- Print Name: Cathy Casey Title: Director Mail Code GA-31281, 28th Floor 191 Peachtree St., N.E. Atlanta, GA 30303 Phone: 404/332-5649 Facsimile: 404/332-4066 Attention: Mr. Cathy Casey S-7 DEUTSCHE BANK TRUST COMPANY AMERICAS, Individually and as Documentation Agent By: /s/ Brenda Casey ---------------------------------------- Print Name: Brenda Casey Title: Vice President 31 West 52nd Street New York, NY 10019 Phone: 646/324-2118 Facsimile: 646/324-7450 Attention: Mr. Geoff Bedrosian S-8 US BANK N.A., Individually and as Co-Agent By: /s/ Mark O. Conzelmann ---------------------------------------- Mark O. Conzelmann Assistant Vice President 1350 Euclid Avenue Cleveland, OH 44115 Phone: 216/623-9210 Facsimile: 216/241-0164 Attention: Mr. Mark Conzelmann S-9 ING CAPITAL LLC, Individually and as Co-Agent By: /s/ Daniel J. Sliwak ---------------------------------------- Print Name: Daniel J. Sliwak Title: Vice President 230 Park Avenue, 12th Floor New York, NY 10019 Phone: 212-883-2627 Facsimile: 212-883-2927 Attention: Mr. A. Adam Troso S-10 JPMORGAN CHASE BANK, Individually and as Co-Agent By: /s/ Mark E. Constantino ---------------------------------------- Print Name: Mark E. Constantino Title: Vice President 270 Park Avenue New York, NY 10017 Phone: 212/270-9554 Facsimile: 212/270-0213 Attention: Mr. Marc E. Constantino S-11 AM SOUTH BANK By: /s/ Robert W. Blair ---------------------------------------- Print Name: Robert W. Blair Title: Vice President 1900 Fifth Avenue North Birmingham, AL 35203 Phone: 205/326-4071 Facsimile: 205/326-4075 Attention: Mr. Robert Blair S-12 THE HUNTINGTON NATIONAL BANK By: /s/ Richard L. Goss ---------------------------------------- Print Name: Richard L. Goss Title: Vice President 917 Euclid Avenue Cleveland, OH 44115 Phone: 216/515-0683 Facsimile: 216/515-6369 Attention: Mr. Richard Goss S-13 LASALLE 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-14 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-15 PNC BANK, NATIONAL ASSOCIATION By: /s/ Terri Wyda ---------------------------------------- Print Name: Terri A. Wyda Title: 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-16 CITICORP NORTH AMERICA, INC. By: /s/ Allen Fisher ---------------------------------------- Print Name: Allen Fisher Title: Vice President 390 Greenwich Street, Floor 1 New York, NY 10013 Phone: 212/723-6789 Facsimile: 212/723-8547 Attention: Mr. Michael Psyllos S-17 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 MELLON BANK, N.A. By: /s/ Steven R. Richard ---------------------------------------- Print Name: Steven R. Richard Title: Vice President Suite 5325 One Mellon Center Pittsburgh, PA 15258-0001 Phone: 412/234-9625 Facsimile: 412/234-8657 Attention: Mr. Thomas Greulich S-19 THE NORTHERN TRUST COMPANY By: /s/ Robert W. Wiarda ---------------------------------------- Print Name: Robert W. Wiarda Title: Vice President 50 South LaSalle Street Chicago, IL 60675 Phone: 312/444-3380 Facsimile: 312/444-7028 Attention: Mr. Robert Wiarda S-20 SOUTHTRUST BANK By: /s/ Lisa S. Smith ---------------------------------------- Print Name: Lisa S. Smith Title: Vice President 600 W. Peachtree Street, 26th Floor Atlanta, GA 30308 Phone: 404/214-5905 Facsimile: 404/214/5899 Attention: Ms. Lisa S. Smith S-21 SUNTRUST BANK By: /s/ Nancy B. Richards ---------------------------------------- Print Name: Nancy B. Richards Title: Vice President 8425 Boone Boulevard, Suite 820 Vienna, VA 22182 Phone: 703/902-9039 Facsimile: 703/902-9190 Attention: Ms. Nancy Richards S-22 ALLIED IRISH BANKS, P.L.C. New York Branch By: /s/ Anthony O'Reilly ---------------------------------------- Print Name: Anthony O'Reilly Title: Vice President By: /s/ E. Germaine Reusch ---------------------------------------- Print Name: E. Germaine Reusch Title: Senior Vice President 405 Park Avenue New York, NY 10022 Phone: 212/515-6847 Facsimile: 212/339-8325 Attention: Mr. Anthony O'Reilly Ms. Hillary Patterson S-23 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 Paley S-24