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Exhibit 4.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT dated as of June 18, 1996 is among
Developers Diversified Realty Corporation, a corporation organized under the
laws of the State of Ohio (the "Borrower"), The First National Bank of Chicago,
a national banking association, and The First National Bank of Boston, a
national banking association (collectively, the "Arrangers"), the several
banks, financial institutions and other entities from time to time parties to
this Agreement (collectively, with the Arrangers, the "Lenders"), and The First
National Bank of Chicago, not individually, but as "Administrative Agent".
R E C I T A L S
A. Borrower, the lenders and the Administrative Agent have entered into a
Credit Agreement dated as of May 1, 1995 (the "Credit Agreement").
B. Borrower has requested that the Lenders agree to extend the term of the
Credit Agreement for one additional year, amend the interest rates thereunder
and make certain other modifications to the Credit Agreement and the Lenders
are willing to agree to such modifications on the terms and conditions
described herein.
C. One of the Lenders, as a result of its merger with another Lender, desires
to withdraw from the Credit Agreement and have its Commitment reallocated to
two of the remaining Lenders and Borrower and Administrative Agent are prepared
to consent to such action.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties agree as follows:
1. Article I of the Credit Agreement entitled "Definitions" is hereby amended
by amending the following definitions to read as follows:
"Consolidated Debt Service" means, for any period, (a) Consolidated Interest
Expense for such period plus (b) the aggregate amount of scheduled principal
payments of Indebtedness (excluding optional prepayments and scheduled
principal payments in respect of any Indebtedness which is not amortized
through equal periodic installments of principal and interest over the term of
such Indebtedness) required to be made during such period by the Borrower or
any of its consolidated Subsidiaries plus (c) a percentage of all such
scheduled principal payments required to be made during such period by any
Investment Affiliate on Indebtedness taken into account in calculating
Consolidated Interest Expense, equal to the greater of (x) the percentage of
the principal amount of such Indebtedness for which the Borrower or any
consolidated Subsidiary is liable and (y) the percentage ownership interest in
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such Investment Affiliate held by the Borrower and any consolidated
Subsidiaries, in the aggregate, without duplication.
"Consolidated Interest Expense" means, for any period, the sum of (a) the
amount of interest expense of the Borrower and its Subsidiaries for such period
on the aggregate principal amount of their Indebtedness, determined on a
consolidated basis in accordance with GAAP plus (b) a percentage of any accrued
or paid interest incurred on any Indebtedness of any Investment Affiliate,
whether recourse or non-recourse, equal to the percentage ownership interest in
such Investment Affiliate held by the Borrower and any consolidated
Subsidiaries, in the aggregate, provided that no expense shall be included more
than once in such calculation even if it falls within more than one of the
foregoing categories.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, the sum of (a) all Indebtedness of the Borrower and its
Subsidiaries outstanding at such date, determined on a consolidated basis in
accordance with GAAP, plus (b) a percentage of the Indebtedness of each
Investment Affiliate equal to the percentage ownership interest in such
Investment Affiliate held by the Borrower and any consolidated Subsidiaries, in
the aggregate, without duplication.
"Consolidated Secured Indebtedness", means, as of any date of determination,
the sum of (a) the aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries outstanding at such date secured by any Lien on
the Property of Borrower or its Subsidiaries, without regard to recourse, plus
(b) the excess, if any, over $5,000,000, of the sum of (x) the aggregate
principal amount of all Senior Unsecured Indebtedness of the Subsidiaries of
the Borrower which have not furnished Subsidiary Guaranties, determined on a
consolidated basis in accordance with GAAP and (y) a percentage of the
aggregate principal amount of all Senior Unsecured Indebtedness of each
Investment Affiliate equal to the greater of (x) the percentage of such Senior
Unsecured Indebtedness for which the Borrower or any consolidated Subsidiary is
liable and (z) the percentage ownership interest in such Investment Affiliate
held by the Borrower and any consolidated Subsidiaries, in the aggregate,
without duplication.
"Facility Termination Date" means April 30, 1999.
"Investment Affiliate", means any Person in which the Borrower or any
consolidated Subsidiary, directly or indirectly, has an ownership interest,
whose financial results are not consolidated under GAAP with the financial
results of the Borrower on the consolidated financial statements of the
Borrower.
2. Section 2.4 of the Credit Agreement is hereby amended by deleting the
table contained therein and replacing it with the following:
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LIBOR/CD ABR
Applicable Applicable
S&P Rating Moody's Rating Margin Margin
---------- -------------- ---------- ----------
A- or higher A3 or higher 0.95% 0.00%
BBB+ Baa1 1.10% 0.00%
BBB- or BBB+ Baa3 or Baa2 1.25% 0.00%
Less than BBB- Less than Baa3 1.85% 0.60%
3. Section 2.5 of the Credit Agreement is hereby amended by
deleting the first sentence thereof and replacing it with the following:
"The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee (the "Commitment Fee") calculated at
the rate of 0.25% per annum on the daily unborrowed portion of such Lender's
Commitment (which is equal to the daily difference between such Lender's then
outstanding Commitment and the then outstanding Loans owed to such Lender) from
the Closing Date to and including the Facility Termination Date, payable
quarterly in arrears on the last day of each calendar quarter hereafter
beginning June 30, 1995 and on the Facility Termination Date."
4. Section 6.21 of the Credit Agreement is hereby amended by
deleting clause (ii) thereof and replacing it with the following:
"(ii) Consolidated Secured Indebtedness to exceed
thirty-five percent (35%) of Consolidated Market Value;"
5. As of the effective date of this Amendment NBD Bank shall
cease to be a Lender under the Credit Agreement and NBD Bank's Commitment of
$13,000,000 shall be allocated $3,000,000 to The First National Bank of Chicago
and $10,000,000 to Bank of America Illinois, resulting in the Commitments of
the Lenders being as shown on the signature pages hereto. The Notes held by
The First National Bank of Chicago and Bank of America Illinois shall be
amended and restated as of the effective date of this Amendment to reflect such
increases as shown on Exhibits A-1 and A-2 attached hereto. All Advances by NBD
Bank which are outstanding on the effective date hereof shall be repaid by a
special Advance in such amount to be made solely by The First National Bank of
Chicago and Bank of America Illinois in proportion to their respective
increases in their Commitments on such date. All accrued interest and fees due
to NBD Bank under the Credit Agreement for the period prior to the effective
date hereof shall be paid to NBD Bank by the Borrower when due.
6. In consideration for their agreement to this Amendment, the
Borrower shall pay on the date hereof to each of the Lenders an
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upfront fee equal to one-tenth of one percent (0.10%) of their respective
Commitments on the effective date hereof.
7. This Amendment may be executed in counterparts and shall be
effective when each of the parties hereto have executed and delivered to the
Administrative Agent or its counsel one of such counterparts.
8. Except as expressly modified by this Amendment, the Credit
Agreement shall continue in full force and effect.
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:
-----------------------------
Its:
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COMMITMENT: THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Administrative Agent
$26,000,000
By:
-----------------------------
Its:
----------------------------
COMMITMENT: THE FIRST NATIONAL BANK OF BOSTON
$23,000,000
By:
-----------------------------
Its:
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COMMITMENT: BANK OF AMERICA ILLINOIS
$20,000,000
By:
-----------------------------
Its:
----------------------------
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COMMITMENT: BHF-BANK AKTIENGESELLSCHAFT, NEW
YORK BRANCH
$16,000,000
By:
-----------------------------
Its:
----------------------------
By:
-----------------------------
Its:
----------------------------
COMMITMENT: DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
$16,000,000
By:
-----------------------------
Its:
----------------------------
By:
-----------------------------
Its:
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COMMITMENT: FLEET NATIONAL BANK
$16,000,000
By:
-----------------------------
Its:
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COMMITMENT: NIPPON CREDIT BANK, LTD.
$13,000,000
By:
-----------------------------
Its:
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COMMITMENT: COMERICA BANK
$10,000,000
By:
-----------------------------
Its:
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COMMITMENT: SIGNET BANK
$10,000,000
By:
-----------------------------
Its:
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COMMITMENT: NBD BANK
Zero By:
-----------------------------
Its:
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The undersigned, Developers Diversified Finance Corporation and
Developers Diversified of Alabama, Inc., hereby consent to the foregoing
amendment and agree that their respective Guaranties dated as of May 1, 1995
shall continue in full force and effect.
DEVELOPERS DIVERSIFIED FINANCE
CORPORATION
By:
-----------------------------
Its:
----------------------------
DEVELOPERS DIVERSIFIED OF ALABAMA,
INC.
By:
-----------------------------
Its:
----------------------------
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EXHIBIT A-1
AMENDED AND RESTATED NOTE
(FIRST CHICAGO)
AMENDED AND RESTATED NOTE
$26,000,000.00 June 18, 1996
Developers Diversified Realty Corporation, a corporation organized
under the laws of the State of Ohio (the "Borrower"), promises to pay to the
order of THE FIRST NATIONAL BANK OF CHICAGO (the "Lender") the lesser of the
principal sum of Twenty-Six Million Dollars or the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrower pursuant to Article II
of the Credit Agreement (as the same may be amended or modified, the
"Agreement") hereinafter referred to, in immediately available funds at the
main office of The First National Bank of Chicago in Chicago, Illinois, as
Agent, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay
remaining unpaid principal of and accrued and unpaid interest on the Loans in
full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement, dated as of May 1, 1995, as amended by a
First Amendment to Credit Agreement dated as of June 18, 1996 among the
Borrower, The First National Bank of Chicago, individually and as an Arranger
and the Agent, The First National Bank of Boston, individually and as an
Arranger, and the other lenders named therein, to which Agreement, as it may be
amended from time to time, reference is hereby made for a statement of the
terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with
the meanings attributed to them in the Agreement.
This Note amends and restates in its entirety the Note dated May 1,
1995 in the maximum principal sum of $23,000,000 executed by the Borrower in
favor of the Lender.
If there is a Default under the Agreement or any other Loan Document
and Agent exercises the remedies provided under the
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Agreement and/or any of the Loan Documents for the Lenders, then in addition to
all amounts recoverable by the Agent and the Lenders under such documents,
Agent and the Lenders shall be entitled to receive reasonable attorneys fees
and expenses incurred by Agent and the Lenders in connection with the exercise
of such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note,
and any and all lack of diligence or delays in collection or enforcement of
this Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS 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 NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING
FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A
JURY.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF DEVELOPERS DIVERSIFIED REALTY CORPORATION,
DATED JUNE 18, 1996
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ---- --------- ----------- ---------- -------
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EXHIBIT A-2
AMENDED AND RESTATED NOTE
(BANK OF AMERICA)
AMENDED AND RESTATED NOTE
$20,000,000.00 June 18, 1996
Developers Diversified Realty Corporation, a corporation organized
under the laws of the State of Ohio (the "Borrower"), promises to pay to the
order of BANK OF AMERICA ILLINOIS (the "Lender") the lesser of the principal
sum of Twenty Million Dollars or the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to Article II of the Credit
Agreement (as the same may be amended or modified, the "Agreement") hereinafter
referred to, in immediately available funds at the main office of The First
National Bank of Chicago in Chicago, Illinois, as Agent, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth
in the Agreement. The Borrower shall pay remaining unpaid principal of and
accrued and unpaid interest on the Loans in full on the Facility Termination
Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement, dated as of May 1, 1995, as amended by a
First Amendment to Credit Agreement dated as of June 18, 1996 among the
Borrower, The First National Bank of Chicago, individually and as an Arranger
and the Agent, The First National Bank of Boston, individually and as an
Arranger, and the other lenders named therein, to which Agreement, as it may
be amended from time to time, reference is hereby made for a statement of the
terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with
the meanings attributed to them in the Agreement.
This Note amends and restates in its entirety the Note dated May 1,
1995 in the maximum principal sum of $10,000,000 executed by the Borrower in
favor of the Lender.
If there is a Default under the Agreement or any other Loan Document
and Agent exercises the remedies provided under the
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Agreement and/or any of the Loan Documents for the Lenders, then in addition to
all amounts recoverable by the Agent and the Lenders under such documents,
Agent and the Lenders shall be entitled to receive reasonable attorneys fees
and expenses incurred by Agent and the Lenders in connection with the exercise
of such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note,
and any and all lack of diligence or delays in collection or enforcement of
this Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS 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 NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING
FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A
JURY.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF DEVELOPERS DIVERSIFIED REALTY CORPORATION,
DATED JUNE 18, 1996
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
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