exv4w1






Exhibit 4.1




ELEVENTH SUPPLEMENTAL INDENTURE




          THIS
ELEVENTH SUPPLEMENTAL INDENTURE is entered into as of August 12, 2010, 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, by a Ninth Supplemental Indenture dated as of September 30,
2009, and by a Tenth Supplemental Indenture dated as of March 19, 2010, 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 Eleventh Supplemental
Indenture to include the Company’s $300,000,000 principal amount of 7.875% Notes Due 2020 (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 Eleventh Supplemental
Indenture; and




          NOW, THEREFORE, the Company and the Trustee agree as follows:





          Section 1. Relation to Indenture. This Eleventh 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 “Consolidated Income Available for Debt Service” is hereby amended
in its entirety as follows:




“Consolidated Income Available for Debt Service” for any period means
Consolidated Net Income of the Company and its Subsidiaries (a) plus
amounts which have been deducted for (i) interest on Debt of the



 









 







Company and its Subsidiaries, (ii) provision for taxes of the Company and
its Subsidiaries based on income, (iii) amortization of debt discount, and
(iv) depreciation and amortization, and (b) excluding (i) any
extraordinary, non-recurring and other unusual noncash charge, (ii) any
gains and losses on sale of real estate, and (iii) the equity in net income
or loss of joint ventures in which the Company or its Subsidiaries owns an
interest to the extent not providing a source of, or requiring a use of,
cash, respectively.




          The amendment of the definition of “Consolidated Income Available for Debt Service”
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.




          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, the
Company’s $300,000,000 principal amount of 7.50% Notes Due 2017 and the
Company’s $300,000,000 principal amount of 7.875% Notes Due 2020.




          The definition of “Maximum Annual Service Charge” is hereby amended in its entirety as
follows:




“Maximum Annual Service Charge” as of any date means the maximum amount
payable during the Company’s four consecutive fiscal quarters most recently
ended before such date for interest on, and required amortization of, Debt
(including, in the case of the additional Debt being incurred, the pro
forma effect of the Debt and intended application of the proceeds thereof
as if such Debt had been outstanding for such four-quarter period). The
amount payable for amortization shall include the amount of any sinking
fund or other analogous fund for the retirement of Debt and the amount
payable on account of principal of any such Debt that matures serially
other than at the final maturity date of such Debt.




          The amendment of the definition of “Maximum Annual Service Charge” 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.



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          The definition of “Total Assets” is hereby amended in its entirety as follows:




“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 GAAP (but excluding
goodwill and unamortized debt costs) after eliminating intercompany
accounts and transactions.




          The amendment of the definition of “Total Assets” 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.




          The definition of “Unencumbered Real Estate Asset Value” is hereby amended in its
entirety as follows:




“Unencumbered Real Estate Asset Value” as of any date means the sum of: (a)
the Undepreciated Real Estate Assets, which are not encumbered by any
mortgage, lien, charge, pledge or security interest, as of the end of the
Company’s latest fiscal 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 that filing is not required
under the Securities Exchange Act of 1934, as amended, with the Trustee)
prior to such date; provided, however, that all investments in
unconsolidated limited partnerships, unconsolidated limited liability
companies and other unconsolidated entities shall be excluded from
Unencumbered Real Estate Asset Value; and (b) the purchase price of any
real estate assets that are not encumbered by any mortgage, lien, charge,
pledge, or security interest and were acquired by the Company or any
Subsidiary after the end of such quarter; provided however, that all
investments in unconsolidated limited partnerships, unconsolidated limited
liability companies and other unconsolidated entities shall be excluded
from Unencumbered Real Estate Asset Value.




          The amendment of the definition of “Unencumbered Real Estate Asset Value” 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 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.



3









 






          The terms of the Notes are established as set forth in Exhibit A attached
hereto and this Eleventh 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 Eleventh Supplemental Indenture, and the Company and the Trustee, by
their execution and delivery of this Eleventh Supplemental Indenture, expressly agree to
such terms and provisions and to be bound thereby.




          Clause five of Section 501 of the Indenture is hereby amended in its entirety 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”.




          The amendment to clause five of Section 501 of the Indenture 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 1004 of the Indenture is hereby amended in its entirety as follows:




“Section 1004. Limitations on Incurrence of Debt. (a) The Company will not,
and will not permit any Subsidiary to, incur any Debt if, immediately
after giving effect to the incurrence of such additional Debt, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 65% of the sum of (i) the Undepreciated Real Estate Assets as
of the end of the Company’s fiscal quarter covered in the Company’s Annual
Report on Form 10-K or Quarterly Report on Form



4









 







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 Debt and (ii)
the increase, if any, in the Undepreciated Real Estate Assets from the end
of such quarter, including, without limitation, any increase in the
Undepreciated Real Estate Assets caused by the application of the proceeds
of additional Debt.




(b) In addition to the limitation set forth in subsection (a) of this
Section 1004, the Company will not, and will not permit any Subsidiary to,
incur any Debt if Consolidated Income Available for Debt Service for the
Company’s four consecutive fiscal quarters most recently ended before the
date on which such additional Debt is to be incurred shall have been less
than 1.5 times the Maximum Annual Service Charge on the Debt of the Company
and all Subsidiaries to be outstanding immediately after the incurrence of
such additional Debt.




(c) For purposes of this Section 1004, Debt shall be deemed to be
“incurred” by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.”




          The amendment of Section 1004 of the Indenture 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 1005 of the Indenture is hereby amended in its entirety as follows:




          “Section 1005. Restrictions on Dividends and Other Distributions.




The Company will not, in respect of any shares of any class of its capital
stock, (a) declare or pay any dividends (other than dividends payable in
capital stock of the Company) thereon, (b) apply any of its property or
assets to the purchase, redemption or other acquisition or retirement
thereof, (c) set apart any sum for the purchase, redemption or other
acquisition or retirement thereof, or (d) make any other distribution
thereon, by reduction of capital or otherwise if, immediately after such
declaration or other action referred to above, the aggregate of all such
declarations and other actions since the date on which this Indenture was
originally executed shall exceed the sum of (i) Funds from Operations from
December 31, 1993 until the end of the Company’s latest fiscal 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 such declaration or other action and (ii)
$20,000,000; PROVIDED,



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HOWEVER, that the foregoing limitation shall not apply to any declaration
or other action referred to above which is necessary to maintain the
Company’s status as a “real estate investment trust” under the Internal
Revenue Code of 1986, as amended, if the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a consolidated
basis determined in accordance with GAAP at such time is less than 65% of
the Undepreciated Real Estate Assets as of the end of the Company’s latest
fiscal 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 such declaration or other
action.




Notwithstanding the foregoing, the provisions of this Section 1005 will not
prohibit the payment of any dividend within 30 days of the declaration
thereof if at such date of declaration such payment would have complied
with the provisions hereof.”




          The amendment of Section 1005 of the Indenture 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 1015 of the Indenture is hereby amended in its entirety as follows:




“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 Total Assets as of the end
of the Company’s fiscal 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.”




          The amendment of Section 1015 of the Indenture 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.



6









 






          Section 5.Counterparts. This Eleventh 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 ELEVENTH 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 Eleventh Supplemental Indenture. The Trustee makes no
representations as to the validity or sufficiency of this Eleventh Supplemental Indenture.



7









 





          IN WITNESS WHEREOF, the parties hereto have caused this Eleventh 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	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/
Joan U. Allgood
	 	 	 	By:	 	/s/ David J. Oakes	 	 
	 

	 	 	 	 	 	 	 	 
	Name:
Joan U. Allgood

	 	 	 	 	 	Name: David J. Oakes	 	 
	Title:  
Executive Vice President of Corporate Transactions and Governance and
Secretary

	 	 	 	 	 	Title:   Senior Executive Vice
President and 

Chief Financial Officer
	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	 	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/
Beverly A. Freeney

	 	 	 	By: 	 	/s/ K. Wendy Kumar	 	 
	 

	 	 	 	 	 	 	 	 
	Name: Beverly A. Freeney

	 	 	 	 	 	Name: K. Wendy Kumar	 	 
	Title:   Vice President

	 	 	 	 	 	Title:  Vice President	 	 











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EXHIBIT A




			
	 	 	 
	REGISTERED
	 	REGISTERED
	 	 	 
	NO. 001
	 	PRINCIPAL AMOUNT
	 	 	 
	CUSIP NO. 251591AV5
	 	$300,000,000






[FACE OF NOTE]




DEVELOPERS DIVERSIFIED REALTY CORPORATION



7.875% Notes Due 2020



     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, 55 Water Street, New York, New York 10041, or registered assigns, the principal sum of
THREE HUNDRED MILLION Dollars ($300,000,000) on September 1, 2020 (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 August 12, 2010 or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly provided for, on
March 1 and September 1, of each year, commencing March 1, 2011 (each, an “Interest Payment Date”),
and on the Maturity Date, at a rate of 7.875% 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.



A-1









 





     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 August
12, 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

 	 
	 	By:  	  
 	 
	 	 	Name:  	David J. Oakes 	 
	 	 	Title:  	Senior Executive Vice President and
Chief Financial Officer 	 
	 



	 	 	 	 	 

	Attest:
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	  	 	 
	 	 	 
	Name:

	 	Joan U. Allgood	 	 
	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:
               


	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



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[REVERSE OF NOTE]




DEVELOPERS DIVERSIFIED REALTY CORPORATION



7.875% Notes Due 2020




     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, the Tenth Supplemental Indenture dated as of March 19, 2010 and the Eleventh
Supplemental Indenture dated as of August 12, 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 “7.875% Notes Due 2020” (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,



A-4









 




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 J.P. Morgan Securities Inc. and a Primary Treasury Dealer
(as defined below) selected by Wells Fargo Securities, LLC and their respective successors and two
other nationally recognized investment banking firms that are primary U.S. Government securities
dealers in The City of New York (each, a “Primary Treasury Dealer”) appointed by the Company,
provided that prior written notice of the Company’s appointment of such other Primary Treasury
Dealers 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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