FORM OF TENTH SUPPLEMENTAL INDENTURE
Exhibit 4.1
FORM OF TENTH SUPPLEMENTAL INDENTURE
THIS
TENTH SUPPLEMENTAL INDENTURE is entered into as of , by and between
Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), and U.S. Bank
National Association (the “Trustee”), a national banking association organized and existing under
the laws of the United States, as successor trustee to U.S. Bank Trust National Association, as
successor 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 as of 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, by an Eighth Supplemental
Indenture dated as of March 13, 2007, and by a Ninth Supplemental Indenture dated as of September
30, 2009, 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 Tenth Supplemental Indenture
to include the Company’s $300,000,000 principal amount of 7.50% Notes Due 2017 (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 Tenth Supplemental
Indenture; and
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. Relation to Indenture. This Tenth 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, the
Company’s $300,000,000 principal amount of 9.625% Notes Due 2016 and the Company’s
$300,000,000 principal amount of 7.50% Notes Due 2017.
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 Tenth 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 Tenth Supplemental Indenture, and the Company and the Trustee, by
their execution and delivery of this Tenth 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 Tenth 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 TENTH 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 Tenth Supplemental Indenture. The Trustee makes no
representations as to the validity or sufficiency of this Tenth Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental 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 | |||||||||
| By: | ||||||||||
Name:
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Name: | |||||||||
Title:
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Title: | |||||||||
| Attest: | U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: | ||||||||||
Name:
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Name: | |||||||||
Title:
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Title: | |||||||||
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STATE OF
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) | |||||
| ) | SS: | |||||
COUNTY OF
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) |
On the ___ day of
, before me personally came
, to me known, who,
being by me duly sworn, did depose and say that he resides at , Ohio, that he is the
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]
| Notary Public | ||||
| COMMISSION EXPIRES | ||||
STATE
OF |
) | |||||
| ) | SS: | |||||
COUNTY OF
|
) |
On the ___ day of , before me personally came, , to me known, who,
being by me duly sworn, did depose and say that she resides at , that she is
the of U.S. BANK NATIONAL ASSOCIATION, one of the corporations described in and
which executed the foregoing instrument and that she signed her name thereto by authority of the
Board of Directors of said corporation.
[Notarial Seal]
| Notary Public | ||||
| COMMISSION EXPIRES | ||||
EXHIBIT A
| REGISTERED | REGISTERED | |
| XX. 000 | XXXXXXXXX XXXXXX | |
| XXXXX XX. 000000XX0 | $300,000,000 |
[FACE OF NOTE]
7.50% Notes Due 2017
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 ($300,000,000) on April 1, 2017 (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 March 19, 2010 or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided for, on April 1
and October 1, of each year, commencing October 1, 2010 (each, an “Interest Payment Date”), and on
the Maturity Date, at a rate of 7.50% 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 the 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 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 March
19, 2010, 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:
| DEVELOPERS DIVERSIFIED REALTY CORPORATION |
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| By: | ||||
| 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:
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
| By: | ||||
| Authorized Officer | ||||
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[REVERSE OF NOTE]
7.50% Notes Due 2017
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, the Eighth
Supplemental Indenture dated as of March 13, 2007, the Ninth Supplemental Indenture dated as of
September 30, 2009 and the Tenth Supplemental Indenture dated as of March 19, 2010 (herein called
the “Indenture”), between the Company and U.S. Bank National Association, as successor trustee to
U.S. Bank Trust National Association, as successor 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 “7.50% Notes Due 2017” (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 the Maturity Date, 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 the Maturity Date 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,
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any calculation of the remaining scheduled payments of principal and interest pursuant to 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 the 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, Deutsche Bank Securities
Inc. and UBS Securities LLC 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
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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
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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.
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