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Exhibit 4.1
SECOND AMENDMENT TO CREDIT AGREEMENT
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This SECOND AMENDMENT TO CREDIT AGREEMENT dated as of March 31, 1997 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, as amended by First Amendment to
Credit Agreement dated as of June 18, 1996 (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.
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 and restating the following definitions 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 under
SECTION 6.1 (excluding any portion of Consolidated Cash Flow attributable to
Assets Under Development and Projects acquired by the Borrower or its
Subsidiaries during such period) MULTIPLIED BY 2, and DIVIDED BY 0.095 PLUS (ii)
with respect to each Project so acquired by the Borrower or its Subsidiaries
during such period, the Borrower's estimated annual Net Operating Income for
such Project based on leases in existence at the date of such acquisition
DIVIDED BY 0.095.
"Facility Termination Date" means April 30, 2000.
"Interest Period" means an Absolute Interest Period, a CD Interest
Period or a LIBOR Interest Period.
"LIBOR Advance" means an Advance that bears interest at the LIBOR Rate,
whether a ratable Advance based on the LIBOR Applicable Margin or a Competitive
Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the Base LIBOR Rate
applicable to such
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LIBOR Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such LIBOR Interest Period, plus (ii) in
the case of ratable LIBOR Advances, the LIBOR Applicable Margin in effect from
time to time during such LIBOR Interest Period, or in the case of LIBOR Advances
made as Competitive Bid Loans, the Competitive LIBOR Margin established in the
Competitive Bid Quote applicable to such Competitive Bid Loan. The LIBOR Rate
shall be rounded to the next higher 1/100 of 1% if the rate is not a multiple of
1/16 of 1% or 1/100 of 1%.
2. Article I of the Credit agreement entitled "Definitions" is hereby
further amended by adding the following new definitions:
"Absolute Interest Period" means, with respect to a Competitive Bid
Loan made at an Absolute Rate, a period of up to 180 days as requested by
Borrower in a Competitive Bid Quote Request and confirmed by a Lender in a
Competitive Bid Quote but in no event extending beyond the Facility Termination
Date. If an Absolute Interest Period would end on a day which is not a Business
Day, such Absolute Interest Period shall end on the next succeeding Business
Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate.
"Competitive Bid Borrowing Notice" is defined in SECTION 2.23(e).
"Competitive Bid Lender" means a Lender which has a Competitive Bid
Loan outstanding.
"Competitive Bid Loan" is a Loan made pursuant to SECTION 2.22 hereof.
"Competitive Bid Note" means the promissory note payable to the order
of each Lender in the form attached hereto as EXHIBIT H to be used to evidence
any Competitive Bid Loans which such Lender elects to make (collectively, the
"Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as EXHIBIT I-3 or
J-2.
"Competitive Bid Quote Request" means a written request from Borrower
to Administrative Agent in the form attached as EXHIBIT I-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to
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Borrower by such Lender at such time (including Swingline Loans and Bid Loans),
and the denominator of which is the total amount disbursed and outstanding to
Borrower by all of the Lenders at such time (including Swingline Loans and Bid
Loans).
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent in the form attached as EXHIBIT I-2 for
Competitive Bid Loans made pursuant to SECTION 2.23, and a written notice to the
Lenders from the Borrower in the form of EXHIBIT J-1 for Competitive Bid Loans
made pursuant to SECTION 2.24.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or in the Note or other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions of the Loan.
"Percentage" means for each Lender the ratio that such Lender's
Commitment bears to the Aggregate Commitment, expressed as a percentage.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Lender" shall mean Administrative Agent, in its capacity as
a Lender.
"Swingline Loans" means loans of up to $10,000,000 made by the
Swingline Lender in accordance with SECTION 2.21 hereof.
3. Section 2.1 of the Credit Agreement is hereby amended by restating
the first grammatical paragraph as follows:
Subject to the terms and conditions of this
Agreement, Lenders severally agree to make Advances through
the Administrative Agent to Borrower from time to time prior
to the Facility Termination Date, PROVIDED THAT the making of
any such Advance will not cause the outstanding principal
balance of all Loans (including all Advances, Swingline Loans
and Competitive Bid Loans) to exceed the then-current
Aggregate Commitment. The Advances may be ratable Floating
Rate Advances, ratable Fixed Rate Advances, non-pro rata
Swingline Loans or non-pro rata Competitive Bid Loans. Except
for Swingline Loans and Competitive Bid Loans, each Lender
shall fund its Percentage of each such Advance and no Lender
will be required to fund any amounts which when aggregated
with such Lender's Percentage of (i) all other Advances (other
than Competitive Bid Loans) then outstanding and (ii) all
Swingline Advances would exceed such Lender's then-current
Commitment. This facility ("FACILITY") is a revolving credit
facility and, subject to the provisions of this Agreement,
Borrower may request
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Advances hereunder, repay such Advances and reborrow Advances
at any time prior to the Facility Termination Date.
4. Section 2.3 of the Credit Agreement is amended and restated as
follows:
Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to their
respective Percentages, except for Swingline Loans which shall
be made by the Swingline Lender in accordance with SECTION
2.21 and Competitive Bid Loans which may be made on a non-pro
rata basis by one or more of the Lenders in accordance with
SECTIONS 2.23 and 2.24.
5. Section 2.4 of the Credit Agreement is hereby amended by deleting
the first sentence and the table contained therein and replacing it with the
following:
Each of the ABR Applicable Margin, the CD Applicable
Margin and the LIBOR Applicable Margin to be used in
calculating the interest rate applicable to different Types of
Advances shall vary from time to time in accordance with the
higher of Borrower's then applicable (x) Moody's debt rating
and (y) S&P's debt rating, as the case may be, and the
Applicable Margin shall be adjusted effective on the next
Business Day following any change in Borrower's Moody's debt
rating and/or S&P's debt rating, as the case may be. The
applicable debt ratings and the Applicable Margins are set
forth in the following table:
LIBOR/CD ABR
APPLICABLE APPLICABLE
S&P RATING MOODY'S RATING MARGIN MARGIN
------------- -------------- ---------- ----------
A- or higher A3 or higher 0.90% 0.00%
BBB+ Baa1 1.00% 0.00%
BBB Baa2 1.10% 0.00%
BBB- Baa3 1.25% 0.25%
Less than BBB- Less than Baa3 1.45% 0.45%
6. 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 0.20% 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 effective date of
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the Second Amendment to this Agreement to and including the
Facility Termination Date, payable quarterly in arrears on the
last day of each calendar quarter hereafter beginning June 30,
1997 and on the Facility Termination Date. Amounts owed to a
Lender in connection with Competitive Bid Loans shall not
constitute outstanding Loans owed to such Lender for purposes
of calculating the Commitment Fee.
7. Section 2.6 of the Credit Agreement is hereby amended by adding the
following sentence:
The Borrower shall also pay the fee due to the
Administrative Agent in connection with certain Competitive
Bid Loans as provided in SECTION 2.23 hereof.
8. Section 2.8 of the Credit Agreement is hereby amended by adding the
following sentence:
Notwithstanding the foregoing, in no event shall Borrower have
the right to prepay a Competitive Bid Loan without the consent
of the applicable Competitive Bid Lender.
9. Section 2.9 of the Credit Agreement is hereby restated as follows:
"The Borrower shall select the Type of Advance and,
in the case of each Fixed Rate Advance, the Interest Period
applicable to each Advance from time to time. The Borrower
shall give the Administrative Agent irrevocable notice (a
"Borrowing Notice") (i) not later am 9:00 a.m. Chicago time on
the Borrowing Date of each Floating Rate Advance, (ii) not
later than 10:00 a.m. Chicago time, at least one (1) Business
Day before the Borrowing Date for each Fixed CD Rate Advance,
(iii) not later than 10:00 a.m. Chicago time, at least three
(3) Business Days before the Borrowing Date for each LIBOR
Advance, and (iv) not later than 2:00 p.m. Chicago time on the
Borrowing Date for each Swingline Loan, specifying:
(a) the Borrowing Date, which shall be a Business
Day, of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected (which must be a
Floating Rate Advance in the case of the Swingline
Loans), and
(d) in the case of each Fixed Rate Advance, the
Interest Period applicable thereto.
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The Administrative Agent shall advise the Lenders of
the contents of any Borrowing Notice requesting a LIBOR
Advance at least two Business Days prior to the applicable
Borrowing Date and shall provide a copy of each Borrowing
Notice to the Lenders on or promptly after the Borrowing Date.
Each Lender shall make available its Loan or Loans, in funds
immediately available in Chicago to the Administrative Agent
at its address specified pursuant to ARTICLE XIII on each
Borrowing Date not later than (i) 10:00 a.m. (Chicago time),
in the case of Floating Rate Advances which have been
requested by a Borrowing Notice given to the Administrative
Agent not later than 3:00 p.m. (Chicago time) on the Business
Day immediately preceding such Borrowing Date, or (ii) noon
(Chicago time) in the case of all other Advances (other than
Swingline Loans), and 4:00 p.m. (Chicago time) for all
Swingline Loans. The Administrative Agent will make the funds
so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
No Interest Period may end after the Facility
Termination Date and, unless the Lenders otherwise agree in
writing, in no event may there be more than five (5) different
Interest Periods for LIBOR Advances outstanding at any one
time.
10. Article II of the Credit Agreement is amended by adding the
following new Sections:
2.21 SWINGLINE LOANS. In addition to the other
options available to Borrower hereunder, up to $10,000,000 of
the Swingline Lender's Commitment, shall be available for
Swingline Loans subject to the following. terms and
conditions. Swingline Loans shall be made available for same
day borrowings provided that notice is given in accordance
with SECTION 2.9 hereof. All Swingline Loans shall bear
interest at the Floating Rate and shall be deemed to be
Floating Rate Advances. In no event shall the Swingline Lender
be required to fund a Swingline Loan if it would increase the
total aggregate outstanding Loans (including Swingline Loans
but not including Competitive Bid Loans) by Swingline Lender
hereunder to an amount in excess of its Commitment. Upon
request of the Swingline Lender made to all the Lenders, each
Lender irrevocably agrees to purchase its Percentage of any
Swingline Loan made by the Swingline Lender regardless of
whether the conditions for disbursement are satisfied at the
time of such purchase, including the existence of an Event of
Default hereunder provided no Lender shall be required to have
total outstanding Loans (other than Competitive Bid Loans) in
an amount greater than its Commitment. Such purchase shall
take place on the date of the request by Swingline Lender so
long as such request is made by noon (Chicago time), otherwise
on the Business Day following such request. All
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requests for purchase shall be in writing. From and after the
date it is so purchased, each such Swingline Loan shall, to
the extent purchased, (i) be treated as a Loan made by the
purchasing Lenders and not by the selling Lender for all
purposes under this Agreement and the payment of the purchase
price by a Lender shall be deemed to be the making of a Loan
by such Lender and shall constitute outstanding principal
under such Lender's Note, and (ii) shall no longer be
considered a Swingline Loan except that all interest accruing
on or attributable to such Swingline Loan for the period prior
to the date of such purchase shall be paid. when due by the
Borrower to the Administrative Agent for the benefit of the
Swingline Lender and all such amounts accruing on or
attributable to such Loans for the period from and after the
date of such purchase shall be paid when due by the Borrower
to the Administrative Agent for the benefit of the purchasing
Lenders. If prior to purchasing its Percentage of a Swingline
Loan one of the events described in SECTION 7.7 OR 7.8 shall
have occurred and such event prevents the consummation of the
purchase contemplated by preceding provisions, each Lender
will purchase an undivided participating interest in the
outstanding Swingline Loan in an amount equal to its
Percentage of such Swingline Loan. From and after the date of
each Lender's purchase of its participating interest in a
Swingline Loan, if the Swingline Lender receives any payment
on account thereof, the Swingline Lender will distribute to
such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's
participating interest was outstanding and funded); provided,
however, that in the event that such payment was received by
the Swingline Lender and is required to be returned to the
Borrower, each Lender will return to the Swingline Lender any
portion thereof previously distributed by the Swingline Lender
to it. If any Lender fails to so purchase its Percentage of
any Swingline Loan, such Lender shall be deemed to be a
Defaulting Lender hereunder. No Swingline Loan shall be
outstanding for more than five (5) days at a time and
Swingline Loans shall not be outstanding for more than a total
of ten (10) days during any month.
2.22 Competitive Bid Loans.
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(a) COMPETITIVE BID OPTION. In addition to ratable
Advances pursuant to SECTION 2.3, but subject to the terms and
conditions of this Agreement (including, without limitation
the limitation set forth in SECTION 2.1 as to the maximum
amount of all outstanding Advances, including Swingline Loans
and Competitive Bid Loans), the Borrower may, as set forth in
SECTIONS 2.23 or 2.24, request the Lenders, prior to the
Facility Termination Date, to make offers to make Competitive
Bid Loans to the Borrower. Each Lender may, but shall have no
obligation to, make such offers and the Borrower may, but
shall have no obligation
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to, accept any such offers in the manner set forth in SECTION
2.23 or SECTION 2.24, as the case may be. Competitive Bid
Loans shall be evidenced by the Competitive Bid Notes.
Borrower shall not have the right to request a Competitive Bid
Loan at any time that a Default exists. If Borrower elects to
have Administrative Agent administer the Competitive Bid Loan
process, the procedures set forth in SECTION 2.23 shall apply.
If Borrower elects to administer the Competitive Bid Loan
process itself, the procedures set forth in SECTION 2.24 shall
apply.
(b) GENERAL TERMS. Any Competitive Bid Loan shall not
reduce the Commitment of the Lender making such Competitive
Bid Loan, and each such Lender shall continue to be obligated
to fund its full Percentage of all pro rata Advances under the
Facility. In no event can the aggregate amount of all
Competitive Bid Loans at any time exceed fifty percent (50%)
of the then Aggregate Commitment. Notwithstanding anything to
the contrary in SECTION 2.10, Competitive Bid Loans may not be
continued or converted and, if not repaid at the end of the
Interest Period applicable thereto, shall (subject to the
conditions set forth in this Agreement) be replaced by new
Competitive Bid Loans made in accordance with SECTION 2.23 or
SECTION 2.24 or by ratable Advances in accordance with SECTION
2.9.
(c) FUNDING OF COMPETITIVE BID LOANS. Each Lender
that is to make a Competitive Bid Loan shall, before 2:00 p.m.
(Chicago time) on the date of such Competitive Bid Loan
specified in the notice received from the Borrower make
available the amount of such Competitive Bid Loan to the
Administrative Agent. Upon fulfillment of the applicable
conditions to disbursement and after receipt of such funds,
the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
2.23 Agent Administered Competitive Bid Loans.
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(a) COMPETITIVE BID QUOTE REQUEST. When the Borrower
wishes to request offers to make Competitive Bid Loans under
this SECTION 2.23, it shall transmit to the Administrative
Agent by telecopy a Competitive Bid Quote Request
substantially in the form of EXHIBIT I-1 hereto so as to be
received no later than (i) 10:00 a.m. (Chicago time) at least
five Business Days prior to the Borrowing Date proposed
therein, in the case of a request for a Competitive LIBOR
Margin or (ii) 9:00 a.m. (Chicago time) at least one Business
Day prior to the Borrowing Date proposed therein, in the case
of a request for an Absolute Rate specifying:
(i) the proposed Borrowing Date for the
proposed Competitive Bid Loan,
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(ii) the requested aggregate principal
amount of such Competitive Bid Loan which shall be at
least $5,000,000 and in an integral multiple of
$1,000,000,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin
or an Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a
Competitive LIBOR Margin is requested, or the
Absolute Interest Period, if an Absolute Rate is
requested.
The Borrower may request offers to make Competitive Bid Loans
for more than one (but not more than five) Interest Periods in
a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within five Business Days (or
such other number of days as the Borrower and the
Administrative Agent may agree) of any other Competitive Bid
Quote Request or Invitation for Competitive Bid Quotes. A
Competitive Bid Quote Request that does not conform
substantially to the form of EXHIBIT I-1 hereto shall be
rejected, and the Administrative Agent shall promptly notify
the Borrower of such rejection by telecopy.
(b) INVITATION FOR COMPETITIVE BID QUOTES. Promptly
and in any event before the close of business on the same
Business Day of receipt of a Competitive Bid Quote Request
that is not rejected pursuant to SECTION 2.23(a), the
Administrative Agent shall send to each of the Lenders by
telecopy an Invitation for Competitive Bid Quotes
substantially in the form of EXHIBIT I-2 hereto, which shall
constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive
Bid Loans to which such Competitive Bid Quote Request relates
in accordance with this SECTION 2.23.
(c) Submission of Contents of Competitive Bid Quotes.
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(i) Each Lender may, in its sole discretion,
submit a Competitive bid Quote containing an offer or
offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the
requirements of this SECTION 2.23(c) and must be
submitted to the Administrative Agent by telex or
telecopy at its
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offices not later than (a) 2:00 p.m. (Chicago time)
at least four Business Days prior to the proposed
Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago
time) on the proposed Borrowing Date, in the case of
a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such
other time and rate as the Borrower and the
Administrative Agent may agree); PROVIDED that
Competitive Bid Quotes submitted by First Chicago may
only be submitted if the Administrative Agent or
First Chicago notifies the Borrower of the terms of
the offer or offers contained therein no later than
30 minutes prior to the latest time at which the
relevant Competitive Bid Quotes must be submitted by
the other Lenders. Subject to the Borrower's
compliance with all other conditions to disbursement
herein, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of EXHIBIT I-3 hereto and
shall in any case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in
the applicable Invitation for Competitive
Bid Quotes,
(b) the principal amount of the
Competitive Bid Loan for which each such
offer is being made, which principal amount
(1) may be greater than, less than or equal
to the Commitment of the quoting Lender, (2)
must be at least $5,000,000 and an integral
multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive
Bid Loans for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute
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Rate offered for each such Competitive Bid
Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be
accepted by the Borrower, and
(e) the identity of the quoting
Lender.
(iii) The Administrative Agent shall reject
any competitive Bid Quote that:
(a) is not substantially in the form
of EXHIBIT I-3 hereto or does not specify
afl of the information required by SECTION
2.23(c)(ii),
(b) contains qualifying, conditional
or similar language, other than any such
language contained in EXHIBIT I-3 hereto,
(c) proposes terms other than or in
addition to those set forth in the
applicable Invitation for Competitive Bid
Quotes, or
(d) arrives after the time set forth
in SECTION 2.23(c)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this SECTION 2.23(c)(iii), then the Administrative Agent shall
notify the relevant Lender of such rejection as soon as
practical.
(d) NOTICE TO BORROWER. The Administrative Agent
shall promptly notify the Borrower of the terms (i) of any
Competitive Bid Quote submitted by a Lender that is in
accordance with SECTION 2.23(c) and (ii) of any Competitive
Bid Quote that amends, modifies or is otherwise inconsistent
with a previous Competitive Bid Quote submitted by such Lender
with respect to the same Competitive Bid Quote Request. Any
such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive
Bid Quote specifically states that it is submitted solely to
correct a manifest error in such former Competitive Bid Quote.
The Administrative Agent's notice to the Borrower shall
specify the
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aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified
in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive LIBOR Margins or
Absolute Rate, as the case may be, so offered.
(e) ACCEPTANCE AND NOTICE BY BORROWER. Not later than
(i) 6:00 p.m. (Chicago time) at least four Business Days prior
to the proposed Borrowing Date in the case of a request for a
Competitive LIBOR Margin or (ii) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice
to the Lenders, such other time and date as the Borrower and
the Administrative Agent may agree), the Borrower shall notify
the Administrative Agent of its acceptance or rejection of the
offers so notified to it pursuant to SECTION 2.23(d),
PROVIDED, HOWEVER, that the failure by the Borrower to give
such notice to the Administrative Agent shall be deemed to be
a rejection of all such offers. In the case of acceptance,
such notice (a "COMPETITIVE BID BORROWING NOTICE") shall
specify the aggregate principal amount of offers for each
Interest Period that are accepted and the applicable interest
rate. The Borrower may accept any Competitive Bid Quote in
whole or in part (subject to the terms of SECTION
2.23(c)(iii)); PROVIDED that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given
Borrowing Date may not exceed the applicable amount
set forth in the related Competitive Bid Quote
Request,
(ii) acceptance of offers may only be made
on the basis of ascending Competitive LIBOR Margins
or Absolute Rates, as the case may be, and
(iii) the Borrower may not accept any offer
that is described in SECTION 2.23(c)(iii) or that
otherwise fails to comply with the requirements of
this Agreement.
(f) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are
made by two or more Lenders with the same Competitive LIBOR
Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which
offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which
such offers are accepted shall be allocated by the
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Administrative Agent among such Lenders as nearly as possible
(in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers PROVIDED,
however, that no Lender shall be allocated any Competitive Bid
Loan which is less than the minimum amount which such Lender
has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans
shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the
same Business Day, notify each Lender of its receipt of a
Competitive Bid Borrowing Notice and the principal amounts of
the Competitive Bid Loans allocated to each participating
Lender.
(g) ADMINISTRATION FEE. The Borrower hereby agrees to
pay to the Administrative Agent an administration fee of
$2,500 per each Competitive Bid Quote Request transmitted by
the Borrower to the Administrative Agent pursuant to SECTION
2.23(a). Such administration fees, if not paid at the time of
the applicable Competitive Bid Quote Request shall be payable
monthly in arrears on the first Business Day of each month and
on the Facility Termination Date (or such earlier date on
which the Aggregate Commitment shall terminate or be
cancelled).
2.24 Competitive Bid Loans Administered By Borrower.
----------------------------------------------
(a) COMPETITIVE BID QUOTE REQUEST. When the Borrower
wishes to request offers to make Competitive Bid Loans under
this SECTION 2.24, it shall transmit to the Lenders and
Administrative Agent by telecopy an Invitation for Competitive
Bid Quote substantially in the form of EXHIBIT J-1 hereto so
as to be received no later than (i) 10:00 a.m. (Chicago time)
at least five Business Days prior to the Borrowing Date
proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one
Business Day prior to the Borrowing Date proposed therein, in
the case of a request for an Absolute Rate specifying:
(i) the proposed, Borrowing Date for the
proposed Competitive Bid Loan,
(ii) the requested aggregate principal
amount of such Competitive Bid Loan which shall be at
least $5,000,000 and in an integral multiple of
$1,000,000,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin
or an Absolute Rate, or both, and
-13-
14
(iv) the LIBOR Interest Period, if a
Competitive LIBOR Margin is requested, or the
Absolute Interest Period, if an Absolute Rate is
requested.
The Borrower may request offers to make Competitive Bid Loans
for more than one (but not more than five) Interest Periods in
a single Competitive Bid Quote. No Invitation for Competitive
Bid Quote shall be given within five Business Days (or such
other number of days as the Borrower and the Administrative
Agent may agree) of any other Invitation for Competitive Bid
Quote.
(b) Submission and Contents of Competitive Bid
------------------------------------------
Quotes.
-------
(i) Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or
offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the
requirements of this SECTION 2.24(b) and must be
submitted to the Borrower by telex or telecopy at its
offices not later than (a) 2:00 p.m. (Chicago time)
at least four Business Days prior to the proposed
Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago
time) on the proposed Borrowing Date, in the case of
a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such
other time and rate as the Borrower and the
Administrative Agent may agree). Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so
made shall be irrevocable except with the written
consent of the Administrative Agent given on the
instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of EXHIBIT J-2 hereto and
shall in any case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in
the applicable Invitation for Competitive
Bid Quotes,
-14-
15
(b) the principal amount of the
Competitive Bid Loan for which each such
offer is being made, which principal amount
(1) may be greater than, less than or equal
to the Commitment of the quoting Lender, (2)
must be at least $5,000,000 and an integral
multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive
Bid Loans for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for
each such Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be
accepted by the Borrower, and
(e) the identity of the quoting
Lender.
(iii) The Borrower shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form
of EXHIBIT J-2 hereto or does not specify
all of the information required by SECTION
2.24(b)(ii),
(b) contains qualifying, conditional
or similar language, other than any such
language contained in EXHIBIT J-2 hereto,
(c) proposes terms other than or in
addition to those set forth in the
applicable Invitation for Competitive Bid
Quotes, or
(d) arrives after the time set forth
in SECTION 2.24(b)(i).
-15-
16
If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.24(b)(iii), then the Borrower shall notify the relevant Lender of
such rejection as soon as practical.
(c) ACCEPTANCE AND NOTICE BY BORROWER. Not later than
(i) 6:00 p.m. (Chicago time) at least four Business Days prior
to the proposed Borrowing Date in the case of a request for a
Competitive LIBOR Margin or (ii) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice
to the Lenders, such other time and date as the Borrower and
the Administrative Agent may agree), the Borrower shall notify
the Lenders and Administrative Agent of its acceptance or
rejection of the offers submitted to it pursuant to SECTION
2.24(b); PROVIDED, HOWEVER, that the failure by the Borrower
to give such notice to the Lenders and Administrative Agent
shall be deemed to be a rejection of all such offers. In the
case of acceptance, such notice to each Lender and the
Administrative Agent shall specify the aggregate principal
amount of offers for each Interest Period that are accepted
and the applicable interest rate. The Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the
terms of SECTION 2.24(b)(iii)); PROVIDED that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given
Borrowing Date may not exceed the applicable amount
set forth in the related Invitation for Competitive
Bid Quote,
(ii) acceptance of offers may only be made
on the basis of ascending Competitive LIBOR Margins
or Absolute Rates, as the case may be, and
(iii) the Borrower may not accept any offer
that is described in SECTION 2.24(b)(iii) or that
otherwise fails to comply with the requirements of
this Agreement.
(d) ALLOCATION BY BORROWER. If offers are made by two
or more Lenders with the same Competitive LIBOR Margins or
Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal
amount of Competitive Bid Loans in respect of which such
offers are accepted shall be allocated by the Borrower among
such Lenders as nearly as possible (in such multiples, not
greater than $1,000,000, as the Administrative Agent may deem
-16-
17
appropriate) in proportion to the aggregate principal amount
of such offers PROVIDED, however, that no Lender shall be
allocated any Competitive Bid Loan which is less than the
minimum amount which such Lender has indicated that it is
willing to accept. Allocations by the Borrower of the amounts
of Competitive Bid Loans shall be conclusive in the absence of
manifest error.
2.25 APPLICATION OF MONEYS RECEIVED. All moneys
collected or received by the Administrative Agent on account
of the Facility directly or indirectly, shall be applied in
the following order of priority:
(i) to the payment of all reasonable costs
incurred in the collection of such moneys of which
the Administrative Agent shall have given notice to
the Borrower;
(ii) to the reimbursement of any yield
protection due to any of the Lenders in accordance
with SECTION 3.1;
(iii) to the payment of the Commitment Fee
to the Lenders, if then due, and to the payment of
all fees to the Administrative Agent;
(iv) to payment of the full amount of
interest and principal on the Swingline Loans;
(v) first to interest until paid in full and
then to principal for all Lenders (other than
Defaulting Lenders) (i) as allocated by the Borrower
(unless an Event of Default exists) between
Competitive Bid Loans and ratable Advances (the
amount allocated to ratable Advances to be
distributed in accordance with the Percentages of the
Lenders) or (ii) if an Event of Default exists, in
accordance with the respective Funded Percentages of
the Lenders;
(vi) any other sums due to the
Administrative Agent or any Lender under any of the
Loan Documents; and
(vii) to the payment of any sums due to each
Defaulting Lender as their respective Percentages
appear (provided that Administrative Agent shall have
the right to set-off against such
-17-
18
sums any amounts due from such Defaulting Lender).
2.26. USURY. This Agreement and each Note and
Competitive Bid Note are subject to the express condition that
at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which
could subject any Lender (including the Swingline Lender) to
either civil or criminal liability as a result of being in
excess of the Maximum Legal Rate. If by the terms of this
Agreement or the Loan Documents, Borrower is at any time
required or obligated to pay interest on the principal balance
due hereunder at a rate in excess of the Maximum Legal Rate,
the interest rate or the Default Rate, as the case may be,
shall be deemed to be immediately reduced to the Maximum Legal
Rate and all previous payments in excess of the Maximum Legal
Rate shall be deemed to have been payments in reduction of
principal and not on account of the interest due hereunder.
All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan,
shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full
stated term of the Loan until payment in full so that the rate
or amount of interest on account of the Loan does not exceed
the Maximum Legal Rate of interest from time to time in effect
and applicable to the Loan for so long as the Loan is
outstanding.
11. Section 3.4 of the Credit Agreement is hereby restated as follows:
If any payment of a ratable Fixed Rate Advance or a
Competitive Bid Loan occurs on a date which is not the last
day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a ratable Fixed Rate
Advance or a Competitive Bid Loan is not made on the date
specified by Borrower for any reason other than default by one
or more of the Lenders, Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom,
including without limitation any loss or cost in liquidating
or employing deposits acquired to fund or maintain the ratable
Fixed Rate Advance or Competitive Bid Loan, as the case may
be. Without limitation of any losses arising from changes in
the Fixed Rate adverse to the Lenders, in no event will the
administrative cost payable by the Borrower as a result of
such early payment or failure to make an advance exceed $250
per occurrence per Lender. Nothing in this Section 3.4 shall
authorize the prepayment of a Competitive Bid Loan prior to
the end of the applicable Interest Period.
12. Section 4.2 of the Credit Agreement is amended by adding the phrase
"(including Swingline Loans and Competitive Bid Loans)" after the word
"Advance."
-18-
19
13. Section 6.19 of the Credit Agreement is amended by deleting the
references therein to $175,000,000 and inserting in lieu thereof $225,000,000.
14. Section 6.21 (iii) of the Credit Agreement is modified to delete
the reference to "2.0" and insert in lieu thereof "1.75."
15. The Exhibits attached hereto as Exhibit H, Exhibit I-1, I-2, I-3,
and Exhibit J-1 and J-2 are hereby incorporated into the Credit Agreement as
such Exhibits.
16. Borrower hereby represents and warrants to the Lenders that:
(a) The Borrower has the corporate power and
authority and legal right to execute and deliver this
Amendment and each of the Notes to be executed and delivered
pursuant hereto and to perform its obligations thereunder. The
execution and delivery by the Borrower of this Amendment and
the other documents executed pursuant to this Amendment and
the other documents executed pursuant hereto in the
performance of its obligations hereunder have been duly
authorized by proper corporate proceedings, and such documents
constitute the legal valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with
their terms, except as enforceability may be limited by
bankruptcy, in solvency or similar law effecting the
enforcement of creditors rights generally;
-19-
20
(b) each of the representations and warranties set
forth in Article V of the Credit Agreement is true and correct
in all material respects.
17. As of the effective date of this Amendment, BHF-Bank
Aktiengesesellschaft, New York Branch ("BHF") shall cease to be a Lender under
the Credit Agreement and BHF's Commitment of $16,000,000 shall be allocated
$9,000,000 to First Chicago, $4,000,000 to Fleet National Bank ("Fleet") and
$3,000,000 to Comerica Bank ("Comerica"), resulting in the Commitments of the
Lenders being as shown on the signature pages hereto as of the effective date of
this Amendment. The Notes held by First Chicago, and Fleet and Comerica shall be
amended and restated as of the effective date of this Amendment to reflect such
increases, in the form as shown on Exhibit A-1 attached hereto. All accrued
interest and fees due to BHF under the Credit Agreement for the period prior to
the effective date hereof shall be paid to BHF by the Borrower when due.
18. In consideration for their agreement to this Amendment, the
Borrower shall pay on the date hereof to each of the Lenders an upfront fee
equal to one-tenth of one percent (0.10%) of their respective Commitments on the
effective date hereof.
19. 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.
20. 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:
--------------------------------
COMMITMENT: THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Administrative Agent
$35,000,000
By:
---------------------------------
Its:
--------------------------------
-20-
21
COMMITMENT: THE FIRST NATIONAL BANK OF BOSTON
$23,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BANK OF AMERICA ILLINOIS
$20,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BHF-BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
Zero
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
$16,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: FLEET NATIONAL BANK
$20,000,000
By:
---------------------------------
Its:
--------------------------------
-21-
22
COMMITMENT: THE FIRST NATIONAL BANK OF BOSTON
$23,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BANK OF AMERICA ILLINOIS
$20,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BHF-BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
Zero
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
$16,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: FLEET NATIONAL BANK
$20,000,000
By:
---------------------------------
Its:
--------------------------------
-22-
23
COMMITMENT: THE FIRST NATIONAL BANK OF BOSTON
$23,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BANK OF AMERICA ILLINOIS
$20,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BHF-BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
Zero
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
$16,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: FLEET NATIONAL BANK
$20,000,000
By:
---------------------------------
Its:
--------------------------------
-23-
24
COMMITMENT: THE FIRST NATIONAL BANK OF BOSTON
$23,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BANK OF AMERICA ILLINOIS
$20,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BHF-BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
Zero
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
$16,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: FLEET NATIONAL BANK
$20,000,000
By:
---------------------------------
Its:
--------------------------------
-24-
25
COMMITMENT: THE FIRST NATIONAL BANK OF BOSTON
$23,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BANK OF AMERICA ILLINOIS
$20,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: BHF-BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
Zero
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
$16,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: FLEET NATIONAL BANK
$20,000,000
By:
---------------------------------
Its:
--------------------------------
-25-
26
COMMITMENT: NIPPON CREDIT BANK, LTD.
$13,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: COMERICA BANK, a Michigan banking
corporation
$13,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: SIGNET BANK
$10,000,000
By:
---------------------------------
Its:
--------------------------------
-26-
27
COMMITMENT: NIPPON CREDIT BANK, LTD.
$13,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: COMERICA BANK, a Michigan banking
corporation
$13,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: SIGNET BANK
$10,000,000
By:
---------------------------------
Its:
--------------------------------
-27-
28
COMMITMENT: NIPPON CREDIT BANK, LTD.
$13,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: COMERICA BANK, a Michigan banking
corporation
$13,000,000
By:
---------------------------------
Its:
--------------------------------
COMMITMENT: SIGNET BANK
$10,000,000
By:
---------------------------------
Its:
--------------------------------
-28-
29
CONSENT AND AMENDMENT TO GUARANTIES
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, and that such Guaranties shall be
amended so that all references therein to the Notes shall include the
Competitive Bid Notes as defined in the foregoing Amendment.
DEVELOPERS DIVERSIFIED FINANCE
CORPORATION
By:
---------------------------------
Its:
--------------------------------
DEVELOPERS DIVERSIFIED OF ALABAMA, INC.
By:
---------------------------------
Its:
--------------------------------
-29-
30
EXHIBIT A-1
-----------
FORM OF
AMENDED AND RESTATED NOTE
-------------------------
AMENDED AND RESTATED NOTE
$ March 31, 1997
------------
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 "Lender") the lesser of the principal
sum of ______________ 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, and Second
Amendment to Credit Agreement dated as of March 31, 1997, 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 June 18,
1996 in the maximum principal sum of $ ____________ 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 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.
-30-
31
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:
----------------------------
Its:
------------------------------------
-31-
32
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF DEVELOPERS DIVERSIFIED REALTY CORPORATION,
DATED MARCH 31, 1997
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ---- ---- ------ ---- -------
-32-
33
EXHIBIT H
---------
FORM OF COMPETITIVE BID NOTE
----------------------------
March 31, 1997
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Credit Agreement dated as of
May 1, 1995, as amended (the "AGREEMENT") between DEVELOPERS DIVERSIFIED REALTY
CORPORATION, a Ohio corporation ("BORROWER"), The First National Bank of
Chicago, a national bank organized under the laws of the United States of
America, individually and as Administrative Agent for the Lenders (as such terms
are defined in the Agreement), Borrower promises to pay to the order of
____________ (the "Lender"), or its successors and assigns, the unpaid principal
amount of such Competitive Bid Loan made by the Lender to the Borrower pursuant
to SECTION 2.22 of the Agreement, in immediately available funds at the office
of the Administrative Agent in Chicago, Illinois, 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 any remaining unpaid principal amount of such
Competitive Bid Loans under this Competitive Bid Note ("NOTE") in full on or
before the Facility Termination in accordance with the terms of the Agreement.
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, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, INTER ALIA, a statement of 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.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), 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 of this
Note, the acceptance
-33-
34
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 PROMISSORY 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 COURT AND NOT
BEFORE A JURY.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By:
--------------------------------
Print Name:
------------------------
Its:
-------------------------------
-34-
35
PAYMENTS OF PRINCIPAL
---------------------
Unpaid
Principal Notation
Date Balance Made by
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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-35-
36
EXHIBIT I-1
-----------
FORM OF COMPETITIVE BID QUOTE REQUEST
-------------------------------------
(Section 2.23(a))
To: The First National Bank of Chicago,
as administrative agent (the "Agent")
From: Developers Diversified Realty Corporation (the "Borrower")
Re: Credit Agreement dated as of May 1, 1995, as amended among the
Borrower, the lenders from time to time party thereto, The First
National Bank of Chicago and The First National Bank of Boston, as
Arrangers, and The First National Bank of Chicago, as Administrative
Agent for the lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to SECTION 2.23(a) of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Borrowing Date:_______________, 19__
Principal Amount(1) Interest Period(2)
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR
Margin] [an Absolute Rate].
- --------
1 Amount must be at least $5,000,000 and an integral multiple of
$1,000,000.
2 One, two, three or six months (Competitive LIBOR Margin) or up to 180
days (Absolute Rate), subject to the provisions of the definitions of
LIBOR Interest Period and Absolute Interest Period.
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4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in ARTICLE V of the Agreement.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By:
--------------------------------
Print Name:
------------------------
Its:
-------------------------------
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EXHIBIT I-2
-----------
INVITATION FOR COMPETITIVE BID QUOTES
-------------------------------------
(Section 2.23(b))
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
Developers Diversified Realty Corporation (the "Borrower")
Pursuant to SECTION 2.23(b) of the Credit Agreement dated as of May 1,
1995 as amended from time to time, among the Borrower, the lenders from time to
time party thereto, The First National Bank of Chicago and The First National
Bank of Boston, as Arrangers, and The First National Bank of Chicago, as
Administrative Agent for the lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"), we are
pleased on behalf of the Borrower to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid Loan(s):
Borrowing Date: _____________, 19__
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with SECTION 2.23(c)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago
time) on _________________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:
------------------------------
Title:
---------------------------
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EXHIBIT 1-3
-----------
COMPETITIVE BID QUOTE
---------------------
(Section 2.23(c))
___________, 19__
To: The First National Bank of Chicago,
as Administrative Agent
Re: Competitive Bid Quote to Developers Diversified Realty Corporation (the
"Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19____, we hereby make the following Competitive Bid Quote
pursuant to SECTION 2.23(c) of the Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:______________________________________________________
2. Person to contact at Quoting Lender:_________________________________
3. Borrowing Date: ____________________________________________________(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
- --------
1 As specified in the related Invitation For Competitive Bid Quotes.
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================================================================================
[Competitive
Principal Interest LIBOR [Absolute Minimum
Amount(2) Period(3) Margin(4)] Rate(5)] Amount(6)
================================================================================
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of May 1, 1995, among the Borrower, the lenders from time to time party
thereto, The First National Bank of Chicago and The First National Bank of
Boston as Arrangers, and The First National Bank of Chicago, as Administrative
Agent for the lenders (as amended, supplemented or otherwise modified from time
to time through the date hereof, the "Agreement"), irrevocably obligates us to
make the Competitive Bid Loan(s) for which any offer(s) are accepted, in whole
or in part. Capitalized terms used herein and not otherwise defined herein shall
have their meanings as defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By:
------------------------------
Title:
---------------------------
- --------
2 Principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
and integral multiples of $1,000,000.
3 One, two, three or six months or up to 180 days, as specified in the
related Invitation For Competitive Bid Quotes.
4 Competitive LIBOR Margin for the applicable LIBOR Interest Period.
Specify percentage (rounded to the nearest 1/100 of 1%) and specify
whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest 1/100 of
1%).
6 Specify minimum amount, if any, which the Borrower may accept (see
SECTION 2.23(c)(ii)(d)).
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EXHIBIT J-1
-----------
INVITATION FOR COMPETITIVE BID QUOTES
-------------------------------------
(Section 2.24(a))
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
Developers Diversified Realty Corporation (the "Borrower")
Pursuant to SECTION 2.24(a) of the Credit Agreement dated as of May 1,
1995 as amended from time to time, among the Borrower, the lenders from time to
time party thereto, The First National Bank of Chicago and The First National
Bank of Boston, as Arrangers, and The First National Bank of Chicago, as
Administrative Agent for the lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"), we are
pleased to invite you to submit Competitive Bid Quotes to the Borrower for the
following proposed Competitive Bid Loan(s):
Borrowing Date: ________________, 19__
Principal Amount(7) Interest Period(8)
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with SECTION 2.24(a)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago
time) on __________________, 19___.
Upon acceptance by the undersigned of any or all of the Competitive Bid
Loans offered by Lenders in response to this request, the undersigned shall be
deemed to affirm as
- --------
7 Amount must be at least $5,000,000 and an integral multiple of
$1,000,000.
8 One, two, three or six months (Competitive LIBOR Margin) or up to 180
days (Absolute Rate), subject to the provisions of the definitions of
LIBOR Interest Period and Absolute Interest Period.
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of the Borrowing Date thereof the representations and warranties made in ARTICLE
V of the Agreement.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By:
------------------------------
Print Name:
----------------------
Its:
-----------------------------
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EXHIBIT J-2
-----------
COMPETITIVE BID QUOTE
---------------------
(Section 2.24(b))
____________, 19__
To: Developers Diversified Realty Corporation
Re: Competitive Bid Quote
In response to your invitation dated , 19 , we hereby make the
following Competitive Bid Quote pursuant to SECTION 2.24(b) of the Agreement
hereinafter referred to and on the following terms:
1. Quoting Lender: ______________________________________________________
2. Person to contact at Quoting Lender: _________________________________
3. Borrowing Date: ____________________________________________________(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
- --------
1 As specified in the related Invitation For Competitive Bid Quotes.
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================================================================================
[Competitive
Principal Interest LIBOR [Absolute Minimum
Amount(2) Period(3) Margin(4)] Rate(5)] Amount(6)
================================================================================
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of May 1, 1995, among the Borrower, the lenders from time to time party
thereto, The First National Bank of Chicago and The First National Bank of
Boston as Arrangers, and The First National Bank of Chicago, as Administrative
Agent for the lenders (as amended, supplemented or otherwise modified from time
to time through the date hereof, the "Agreement"), irrevocably obligates us to
make the Competitive Bid Loan(s) for which any offer(s) are accepted, in whole
or in part. Capitalized terms used herein and not otherwise defined herein shall
have their meanings as defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By:
--------------------------
Title:
-----------------------
- --------
2 Principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
and integral multiples of $1,000,000.
3 One, two, three or six months or up to 180 days, as specified in the
related Invitation For Competitive Bid Quotes.
4 Competitive LIBOR Margin for the applicable LIBOR Interest Period.
Specify percentage (rounded to the nearest 1/100 of 1%) and specify
whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest 1/100 of
1%).
6 Specify minimum amount, if any, which the Borrower may accept (see
SECTION 2.24(b)(ii)(d)).
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