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EXHIBIT 4.9
FIRST SUPPLEMENTAL INDENTURE
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THIS FIRST SUPPLEMENTAL INDENTURE, is entered into as of May
10, 1995, by and between Developers Diversified Realty Corporation, an Ohio
corporation (the "Company"), and National City Bank, a national banking
association organized and existing under the laws of the United States, as
trustee (the "Trustee").
WHEREAS, the parties entered into the Indenture dated as of
May 1, 1994 (the "Original Indenture"), relating to the Company's senior debt
securities;
WHEREAS, the Company has made a request to the Trustee that
the Trustee join with it, in accordance with Section 901 of the Indenture, in
the execution of this First Supplemental Indenture to amend certain existing
provisions for the benefit of Holders of all series of Securities;
WHEREAS, the Company and the Trustees are authorized to enter
into this First Supplemental Indenture; and
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. RELATION TO INDENTURE. This First Supplemental
Indenture supplements the Original Indenture and shall be a part and subject to
all the terms thereof. Except as supplemented hereby, the Indenture and the
Securities issued thereunder shall continue in full force and effect.
Section 2. CAPITALIZED TERMS. Capitalized terms used herein
and not otherwise defined herein are used as defined in the original Indenture.
Section 3. MAINTENANCE OF UNENCUMBERED REAL ESTATE ASSET
VALUE. Section 1011 of the Indenture is deleted in its entirety and replaced
with the following:
Section 1011. MAINTENANCE OF UNENCUMBERED REAL ESTATE
ASSETS. The Company will at all times maintain an Unencumbered
Real Estate Asset Value of not less than 135% of the aggregate
principal amount of all outstanding unsecured Debt of the
Company and its Subsidiaries.
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Section 4. COUNTERPARTS. This First Supplemental Indenture may
be executed in counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
Section 5. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
OHIO (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 6. CONCERNING THE TRUSTEE. The Trustee shall not be
responsible for any recital herein (other than the third recital as it appears
as it applies to the Trustee) as such recitals shall be taken as statements of
the Company, or the validity of the execution by the Company of this First
Supplemental Indenture. The Trustee makes no representations as to the validity
or sufficiency of this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: DEVELOPERS DIVERSIFIED REALTY
CORPORATION
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
Title: Name: Xxxxx X. Xxxxxx
Title: Executive Vice
President and Chief
Operating Officer
Attest: NATIONAL CITY BANK, as Trustee
/s/ N. Hartofillis By: /s/ Xxxxx X. Xxxxx
Title: Trust Officer Name: Xxxxx X. Xxxxx
Title: Vice President
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On the 15th day of May, 1995, before me personally came XXXXX
X. XXXXXX, to me known, who, being by me duly sworn, did depose and say that he
resides at Shaker Hts., Ohio, that he is the Executive Vice President and Chief
Operating Officer of DEVELOPERS DIVERSIFIED REALTY CORPORATION, one of the
corporations described in and which executed the foregoing instrument and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
[Notarial Seal]
/s/ Xxxxxxxxx X. Xxxxx
Notary Public
COMMISSION EXPIRES
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On the 16th day of May, 1995, before me personally came XXXXX
X. XXXXX, to me known, who, being by me duly sworn, did depose and say that he
resides at North Ridgeville, Ohio, that he is the Vice President of NATIONAL
CITY BANK, one of the corporations described in and which executed the foregoing
instrument and that he signed his name thereto by authority of the Board of
Directors of said corporation.
[Notarial Seal]
/s/ Xxxxxxxx Xxxxxxxxx
Notary Public
COMMISSION EXPIRES
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