NINTH SUPPLEMENTAL INDENTURE
Exhibit 4.12
NINTH SUPPLEMENTAL INDENTURE
THIS NINTH SUPPLEMENTAL INDENTURE is entered into as of September 30, 2009, by and between
Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), and U.S. Bank Trust
National Association (the “Trustee”), a national banking association organized and existing under
the laws of the United States, as successor trustee to National City Bank.
WHEREAS, the Company and the Trustee entered into the Indenture dated as of May 1, 1994 (as
supplemented by a First Supplemental Indenture dated as of May 10, 1995, by a Second Supplemental
Indenture dated July 18, 2003, by a Third Supplemental Indenture dated as of January 23, 2004, by a
Fourth Supplemental Indenture dated as of April 22, 2004, by a Fifth Supplemental Indenture dated
as of April 28, 2005, by a Sixth Supplemental Indenture, dated as of October 7, 2005, by a Seventh
Supplemental Indenture, dated as of August 28, 2006, and by an Eighth Supplemental Indenture, dated
as of March 13, 2007, the “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 Ninth Supplemental Indenture
to include the Company’s $300,000,000 principal amount of 9.625% Notes Due 2016 (the “Notes”) in
the definition of Designated Securities such that the covenant in Section 1015 of the Indenture
will inure to their benefit;
WHEREAS, the Company desires to establish the form and terms of the Notes;
WHEREAS, the Company and the Trustee are authorized to enter into this Ninth Supplemental
Indenture; and
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. Relation to Indenture. This Ninth Supplemental Indenture supplements the
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 Indenture.
Section 3. Definitions. The definition of “Designated Securities” is hereby amended
in its entirety as follows:
“Designated Securities” means the Company’s $300,000,000 principal amount of 4.625%
Notes Due 2010, the Company’s $275,000,000 principal amount of 3.875% Notes Due
2009, the Company’s $250,000,000 principal amount of 5.25% Notes Due 2011, the
Company’s $200,000,000 principal amount of 5.0% Notes Due 2010, the Company’s
$200,000,000 principal amount of 5.5% Notes Due 2015, the Company’s $350,000,000
principal amount of 5.375% Notes Due
2012 and the Company’s $300,000,000 principal amount of 9.625% Notes Due 2016.
Section 4. Form and Terms of the Notes.
The Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit A attached hereto. The aggregate principal amount of the Notes
that may be authenticated and delivered under the Indenture, as amended hereby, shall be
$300,000,000. The Company may, without the consent of the Holders, create and issue
additional securities ranking pari passu with the Notes in all respects and so that such
additional Notes shall be consolidated and form a single series having the same terms as to
status, redemption or otherwise as the Notes initially issued.
The terms of the Notes are established as set forth in Exhibit A attached
hereto and this Ninth Supplemental Indenture. The terms and notations contained in the
Notes shall constitute, and are hereby expressly made, a part of the Indenture as
supplemented by this Ninth Supplemental Indenture, and the Company and the Trustee, by
their execution and delivery of this Ninth Supplemental Indenture, expressly agree to such
terms and provisions and to be bound thereby.
Clause five of Section 501 of the Indenture is modified and amended for purposes of
the Notes to read as follows:
“If any event of default under any bond, debenture, note or other evidence of
indebtedness of the Company (including any event of default with respect to any other series
of Securities), or under any mortgage, indenture or other instrument of the Company under
which there may be issued or by which there may be secured or evidenced any indebtedness of
the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for
which the Company is directly responsible or liable as obligor or guarantor), whether such
indebtedness now exists or shall hereafter be created, shall happen and shall result in an
aggregate principal amount exceeding $25,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been waived, rescinded or
annulled, within a period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 10% in principal amount of the Notes a written notice specifying such
event of default and requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that such notice is a
“Notice of Default” hereunder. Subject to the provisions of Section 601, the Trustee shall
not be deemed to have knowledge of such event of default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such event of default or (B) the
Trustee shall have received written notice thereof from the Company, from any Holder, from
the holder of any such indebtedness or from the trustee under any such mortgage, indenture
or other instrument; or”.
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This amendment relates solely to the rights of the Holders of the Notes and shall not affect
the rights under the Indenture of the Holders of Securities of any other series.
Section 5. Counterparts. This Ninth 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 6. Governing Law. THIS NINTH 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 7. Concerning the Trustee. The Trustee shall not be responsible for any
recital herein (other than the fourth 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 Ninth Supplemental Indenture. The Trustee makes no representations as to the
validity or sufficiency of this Ninth Supplemental Indenture.
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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/ Xxxxxxx X. Xxxxxxx | ||||||||||||
Name:
|
Xxxx X. Xxxxxxx | Name: | Xxxxxxx X. Xxxxxxx | |||||||||||
Title:
|
Executive Vice President of Corporate Transactions and Governance and Secretary | Title: | Executive Vice President and Chief Financial Officer | |||||||||||
| Attest: | U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee | |||||||||||||
/s/
Xxxxxxx X. Xxxxxxx
|
By: | /s/ K. Xxxxx Xxxxx | ||||||||||||
Name:
|
Xxxxxxx X. Xxxxxxx | Name: | K. Xxxxx Xxxxx | |||||||||||
Title:
|
Vice President | Title: | Vice President | |||||||||||
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STATE OF OHIO
|
) | |||||
| ) | SS: | |||||
COUNTY OF CUYAHOGA
|
) |
On
the 30th day of September 2009, before me personally came Xxxxxxx X. Xxxxxxx, to me known,
who, being by me duly sworn, did depose and say that he resides at Beachwood, Ohio, that he is the
Executive Vice President and Chief Financial 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/ Xxxxxxxx X. Xxxxxx |
||
| Notary Public | ||
| COMMISSION EXPIRES |
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STATE
OF NEW YORK
|
) | |||||
| ) | SS: | |||||
COUNTY
OF QUEENS
|
) |
On the 30th day of September, 2009, before me personally came, K. Xxxxx Xxxxx, to
me known, who, being by me duly sworn, did depose and say that she resides at Princeton, New
Jersey, that she is the Vice President of U.S. BANK TRUST NATIONAL ASSOCIATION, 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/ Xxxxx X. X’Xxxx |
||
| Notary Public | ||
| COMMISSION EXPIRES |
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EXHIBIT A
| REGISTERED | REGISTERED | |
| XX. 000 | XXXXXXXXX XXXXXX | |
| XXXXX XX. 000000XX0 | $300,000,000 |
[FACE OF NOTE]
9.625% Notes Due 2016
UNLESS THIS GLOBAL 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 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
THREE HUNDRED MILLION Dollars ($300,000,00) on March 15, 2016 (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 on
the outstanding principal amount hereof from September 30, 2009 or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided for, on March 15
and September 15 of each year, commencing March 15, 2010 (each, an “Interest Payment Date”), and on
the Maturity Date, at a rate of 9.625% per annum, computed on the basis of a 360-day year
consisting of twelve 30-day months, until the principal hereof is paid or duly provided for.
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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 U.S. Bank Trust National Association 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
September 30, 2009, 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, 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, that is neither a legal holiday nor a day on
which banking institutions in New York City, New York, are authorized or required by law,
regulation 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.
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
Date: September 30, 2009
| DEVELOPERS DIVERSIFIED REALTY CORPORATION |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
Attest:
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Executive Vice President of Corporate Transactions and Governance and Secretary |
|||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated: September 30, 2009
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee |
||||
| By: | ||||
| Authorized Officer | ||||
[REVERSE OF NOTE]
9.625% Notes Due 2016
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, the Fourth Supplemental Indenture dated as of April 22, 2004, the Fifth
Supplemental Indenture dated as of April 28, 2005, the Sixth Supplemental Indenture dated as of
October 7, 2005, the Seventh Supplemental Indenture dated as of August 28, 2006 and the Eighth
Supplemental Indenture dated as of March 13, 2007 (herein called the “Indenture”), between the
Company and U.S. Bank Trust National Association, as successor trustee to National City Bank
(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 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 “9.625%
Notes Due 2016” (collectively, the “Notes”), and the aggregate principal amount of the Notes to be
issued under such series is limited to $300,000,000 (except for Notes authenticated and delivered
upon transfer of, or in exchange for, or in lieu of other Notes). The Company may, without the
consent of the Holders of any Securities, create and issue additional notes in the future having
the same terms other than the date of original issuance, the issue price and the date on which
interest begins to accrue so as to form a single series with the Notes. No additional notes may be
issued if an Event of Default has occurred with respect to the Notes. The Notes are the unsecured
and unsubordinated obligations of the Company and rank equally with all existing and future
unsecured and unsubordinated indebtedness of the Company. 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.
The Company may redeem the Notes at its option, at any time prior to Maturity, in whole or
from time to time in part, at a Redemption Price equal to the greater of (a) 100% of the principal
amount of the Notes being redeemed and (b) the sum of the present values of the remaining scheduled
payments of principal and interest through Maturity 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 semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 50 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 the preceding sentence shall not include interest accrued as of
the applicable Redemption Date.
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“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 of 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 Banc of America Securities LLC, Citigroup Global Markets
Inc. and X.X. Xxxxxx Securities Inc. and their respective successors and one other nationally
recognized investment banking firm appointed by the Company (each, a “Primary Treasury Dealer”),
provided that prior written notice of the Company’s appointment of such other Primary Treasury
Dealer shall be provided to the Trustee; provided, further, 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.
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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.
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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.
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