Exhibit 4.6
[NOTE: THIS FORM OF NOTE IS TO BE AUTHENTICATED AND DELIVERED UPON THE EXCHANGE
OF 5.25% NOTES DUE 2011 DULY TENDERED PURSUANT TO THE EXCHANGE OFFER TO BE
CONSUMMATED PURSUANT TO A REGISTRATION RIGHTS AGREEMENT, DATED AS OF APRIL 22,
2004, AMONG THE COMPANY AND THE INITIAL PURCHASERS REFERRED TO THEREIN.]
REGISTERED REGISTERED
NO. PRINCIPAL AMOUNT
CUSIP NO. 251591 ___ $250,000,000
[FACE OF NOTE]
DEVELOPERS DIVERSIFIED REALTY CORPORATION
5.25% Notes Due 2011
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO DEVELOPERS
DIVERSIFIED REALTY CORPORATION (THE "COMPANY") OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF OR BY A NOMINEE
THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation
(herein referred to as the "Company", which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to CEDE & CO., c/o The Depository Trust
Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or registered assigns, the
principal sum of TWO HUNDRED FIFTY MILLION Dollars ($250,000,000) on April 15,
2011 (the "Stated Maturity Date"), unless redeemed prior to such date in
accordance with the provisions referred to on the reverse hereof (the Stated
Maturity Date or date of earlier redemption, as the case may be, is referred to
herein as the "Maturity Date" with respect to the principal payable on such
date), and to pay interest thereon from April 22,
2004 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, on April 15 and October 15 of each year commencing
October 15, 2004 (each, an "Interest Payment Date"), and on the Maturity Date,
at a rate of 5.25% per annum, until the principal hereof is paid or duly
provided for.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date and on the Maturity Date will, as provided in
such Indenture, be paid to the Holder in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be fifteen calendar days (whether or not a
Business Day, as defined below) next preceding such Interest Payment Date or the
Maturity Date, as the case may be (each, a "Regular Record Date"). Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Holder
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee referred to on the reverse hereof, notice
whereof shall be given to Holders of Notes of this series not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at either of the offices
or agencies of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York and Cleveland, Ohio. The Company hereby appoints
National City Bank as Paying Agent for the Notes where Notes of the series may
be presented and surrendered for payment and where notices, designations or
requests in respect of payments with respect to the Notes may be served.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will include interest accrued from and
including the next preceding Interest Payment Date in respect of which interest
has been paid or duly provided for (or from and including April 22, 2004, if no
interest has been paid on this Note) to but excluding such Interest Payment Date
or the Maturity Date, as the case may be. If any Interest Payment Date or the
Maturity Date falls on a day that is not a Business Day, as defined below,
principal, premium, if any, and/or interest payable with respect to such
Interest Payment Date or Maturity Date, as the case may be, will be paid on the
next succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or Maturity
Date, as the case may be. "Business Day" means any day, other than a Saturday or
Sunday, on which banks in the Borough of Manhattan, the City of New York, are
not required or authorized by law or executive order to close.
All payments of principal, premium, if any, and interest by
the Company in respect of this Note will be made by wire transfer of immediately
available funds.
2
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
3
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
DEVELOPERS DIVERSIFIED
REALTY CORPORATION
By:
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Name:
Title:
Attest:
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Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
NATIONAL CITY BANK, as
Trustee
By:
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Authorized Officer
4
[Reverse of Note]
DEVELOPERS DIVERSIFIED REALTY CORPORATION
5.25% Notes Due 2011
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of May 1, 1994, as supplemented by the
First Supplemental Indenture dated as of May 10, 1995, the Second Supplemental
Indenture dated as of July 18, 2003, the Third Supplemental Indenture dated as
of January 23, 2004 and the Fourth Supplemental Indenture dated as of April 22,
2004 (herein called the "Indenture"), between the Company and National City
Bank, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture with respect to the series of which this Note is a
part), to which the Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the duly authorized series of
Securities designated as "5.25% Notes Due 2011" (collectively, the "Notes"), and
the aggregate principal amount of the Notes to be issued under such series is
limited to $250,000,000 (except for Notes authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Notes). All terms used but
not defined in this Note shall have the meanings assigned to such terms in the
Indenture.
If an Event of Default shall occur and be continuing, the
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.
This Note may be redeemed at the option of the Company, at any
time in whole or from time to time in part, at a Redemption Price equal to the
greater of (1) 100% of the principal amount of the Notes being redeemed, or (2)
the sum of the present values of the remaining scheduled payments of principal
and interest on the Notes being redeemed (not including the portion of any
payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 25 basis points, plus, in each
case, any interest accrued but not paid to the Redemption Date. For the
avoidance of doubt, any calculation of the remaining scheduled payments of
principal and interest pursuant to clause (2) of the preceding sentence shall
not include interest accrued as of the applicable Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date for
the Notes, (i) the yield under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
established yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Maturity Date, yields for the two
published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line basis, rounding
to the nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date. The Treasury
Rate shall be calculated by the Independent Investment Banker on the third
Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"Independent Investment Banker" means one of the Reference
Treasury Dealers that has been appointed by the Company.
"Comparable Treasury Price" means with respect to any
Redemption Date for the Notes (i) the average of four Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
"Reference Treasury Dealer" means each of Banc of America
Securities LLC and X.X. Xxxxxx Securities Inc. and the respective successors and
any two of ABN AMRO Incorporated, Deutsche Bank Securities Inc., ING Financial
Markets LLC, Xxxxx Xxxxxxx & Co., Wachovia Capital Markets, LLC and Xxxxx Fargo
Brokerage Services, LLC and their respective successors (each, a "Primary
Treasury Dealer") provided, however, that if any of the foregoing shall cease to
be a Primary Treasury Dealer, the Company shall substitute in its place another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such Redemption Date.
Notice of any redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed. If the Company redeems less than all of the
Notes, the Trustee will select the particular Notes to be redeemed pro rata, by
lot or by another method the Trustee deems fair and appropriate.
This Note is not subject to any sinking fund.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain conditions
set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of all
Securities issued under the Indenture at the time Outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of not
less than a majority of the aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all such Securities, to waive compliance
by the Company with certain provisions of the Indenture. Furthermore, provisions
in the Indenture permit the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of any series, in certain
instances, to waive, on behalf of all of the Holders of Securities of such
series, certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal of, premium, if any, and interest on this Note are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of Ohio applicable to agreements made
and to be performed entirely in such State.
ABBREVIATIONS
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The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT _____________ Custodian _____________
(cust) (Minor)
under Uniform Gifts to Minors Act
-----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list
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ASSIGNMENT
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
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(Please print or typewrite Name and Address
including Postal Zip Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: Signature Guaranteed
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NOTICE: Signature must be guaranteed NOTICE: The signature to this
by a member firm of the New York assignment must correspond with the
Stock Exchange or a commercial bank name as written upon the face of
or trust company. the within Note in every particular,
without alteration or enlargement or
any change whatever.
