Exhibit 4.9
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, is entered into as of July
18, 2003, 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 (as supplemented by a First Supplemental Indenture dated as of May 10,
1995, 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 Second Supplemental Indenture to add a covenant for the sole
benefit of Holders of the Company's $300,000,000 principal amount 4.625% Notes
Due 2010 (the "Designated Securities");
WHEREAS, the Company and the Trustees are authorized to enter
into this Second Supplemental Indenture; and
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. RELATION TO INDENTURE. This Second 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. Section 101 of the Indenture is
amended by adding the following definitions:
"TOTAL ASSETS" as of any date means the sum of (i) Undepreciated
Real Estate Assets and (ii) all other assets of the Company and
its Subsidiaries determined on a consolidated basis in accordance
with generally accepted accounting principles (but excluding
intangibles and trade receivables related to rent and other
charges derived from leases with tenants) after eliminating
intercompany accounts and transactions.
"SECURED DEBT" means, without duplication, Debt that is secured
by a mortgage, trust deed, deed of trust, deed to secure Debt,
security agreement, pledge, conditional sale or other title
retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in
real property or other tangible asset(s). Secured Debt shall be
deemed to be incurred (i) on the date the obligor thereon
creates, assumes, guarantees or otherwise becomes liable in
respect thereof if it is secured in the manner described in the
preceding sentence on such date or (ii) on the date the obligor
thereon first secures
such Debt in the manner described in the preceding sentence
if such Debt was not so secured on the date it was incurred.
Section 4. LIMITATIONS ON INCURRENCE OF SECURED DEBT. The
following is inserted into the Indenture as Section 1015:
Section 1015. LIMITATIONS ON INCURRENCE OF SECURED DEBT. So long as
any of the Designated Securities remain outstanding, the
Company will not, and will not permit any Subsidiary to, incur
any Secured Debt, if immediately after giving effect to the
incurrence of such Secured Debt and the application of the
proceeds from such Secured Debt, the aggregate amount of all of
the Company's and its Subsidiaries' outstanding Secured Debt on
a consolidated basis is greater than 40% of the sum of (i) the
Company's Total Assets as of the end of the calendar quarter
covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not
permitted under the Securities Exchange Act of 1934, with the
Trustee) prior to the incurrence of such additional Secured
Debt and (ii) the increase, if any, in Total Assets from the
end of such quarter including, without limitation, any increase
in Total Assets caused by the application of the proceeds of
additional Debt.
Section 5. WAIVER OF CERTAIN COVENANTS. Section 1014 of the
Indenture is deleted in its entirety and replaced with the following:
Section 1014. WAIVER OF CERTAIN COVENANTS. The Company may omit
in any particular instance to comply with any term, provision
or condition set forth in Sections 1004 to 1011, inclusive, and
Section 1015 if before or after the time for such compliance
the Holders of at least a majority in principal amount of all
outstanding Securities thereby affected, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
Section 6. COUNTERPARTS. This Second 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 7. GOVERNING LAW. THIS SECOND 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 8. 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
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execution by the Company of this Second Supplemental Indenture. The
Trustee makes no representations as to the validity or sufficiency of
this Second 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/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
Title: Assistant Secretary ------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President and Chief
Operating Officer
Attest: NATIONAL CITY BANK, as Trustee
/s/ Illegible By: /s/ Xxxxx Xxxxxxx
--------------------------- -------------------------------
Title: Vice President Name: Xxxxx Xxxxxxx
Title: Vice President
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On the 18th day of July, 2003, before me personally came Xxxxx X.
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at Beachwood, Ohio, that he is the 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/ Xxxxx Battler
------------------------------
Notary Public
COMMISSION EXPIRES
Xxxxx Battler
Notary Public, State of Ohio
Recorded in Cuyahoga Cty.
My Comm Expires 9-26-06
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On the 18th day of July, 2003, before me personally came Xxxxx
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at Cleveland, 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/ Xxxxxxx Xxxxxxxx
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Notary Public
COMMISSION EXPIRES
Xxxxxxx Xxxxxxxx
Notary Public, State of Ohio, Cuy. Cty.
My Commission Expires Mar. 27 2006
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