Exhibit 4.4
FORM OF
THIRD SUPPLEMENTAL
INDENTURE
THIS
THIRD SUPPLEMENTAL INDENTURE, is entered into as of
January 23, 2004, 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, and a Second Supplemental Indenture dated as of
July 18, 2003, 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 Third Supplemental Indenture to add a
covenant for the benefit of Holders of the Company’s
$275,000,000 aggregate principal amount 3.875% Notes Due 2009 (the
“Designated Securities”);
WHEREAS,
the Company and the Trustee are authorized to enter into this Third
Supplemental Indenture; and
NOW,
THEREFORE, the Company and the Trustee agree as follows:
Section 1.
Relation to Indenture. This Third 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:
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“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.
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“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
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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.
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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
Subs
