EXHIBIT 4.2
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PAN PACIFIC RETAIL PROPERTIES, INC.,
KIMCO REALTY CORPORATION
AND
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of October 31, 2006
supplementing that certain Indenture dated as of April 6, 2001
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DEBT SECURITIES
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 31, 2006 (this
"Supplemental Indenture"), among Kimco Realty Corporation, a Maryland
corporation ("Kimco"), Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "Company"), and THE BANK OF NEW YORK TRUST COMPANY, N.A., as
trustee (the "Trustee") under the Indenture (as hereinafter referred to).
W I T N E S S E T H
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WHEREAS, the Company and the Trustee have heretofore entered into an
Indenture, dated as of April 6, 2001 (the "Indenture") providing for the
issuance from time to time of Securities in one or more series, which Securities
were issued and a portion of which are currently Outstanding;
WHEREAS, the Company has entered into that Agreement and Plan of
Merger, dated as of July 9, 2006, by and among the Company, Kimco, KRC
Acquisition Inc., KRC CT Acquisition Limited Partnership, KRC PC Acquisition
Limited Partnership, CT Operating Partnership, L.P. and Western/Pinecreek, L.P.
(the "Merger Agreement") pursuant to which the Company shall merge with KRC
Acquisition Inc. (the "Merger Sub") (the "Merger"), with the Company continuing
as the surviving corporation;
WHEREAS, pursuant to the Merger Agreement and the Plan of Liquidation
of the Company to be adopted by the Company promptly after the effectiveness of
the Merger, the Company will convey substantially all of its properties and
assets to Kimco (such conveyance, the "Conveyance");
WHEREAS, as a condition to the Conveyance, Section 801 of the
Indenture requires, among other things, that Kimco execute and deliver an
indenture supplemental to the Indenture pursuant to Section 901(1) to assume the
obligations of the Company under the
Indenture and the Securities;
WHEREAS, the Company has delivered to the trustee Officers'
Certificates and an Opinion of Counsel as required under Section 803 of the
Indenture; and
WHEREAS, pursuant to Section 901(1) of the Indenture, Kimco, the
Company and the Trustee may enter into this Supplemental Indenture without the
consent of any Holder.
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, it is hereby agreed
among the Company, Kimco and the Trustee, for the equal and proportionate
benefit of the respective Holders from time to time of the Securities, as
follows:
ARTICLE ONE
ASSUMPTION OF PAYMENT, PERFORMANCE AND OBSERVANCE
Section 1.01. Kimco hereby expressly assumes the due and punctual
payment of the principal of and any premium and interest on all the Securities
and the performance or observance of every covenant of the Indenture on the part
of the Company to be performed or observed thereunder.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES
Section 2.01. Kimco represents and warrants that it is a corporation
duly organized and validly existing under the laws of the State of Maryland.
Section 2.02. The Company represents and warrants that the Conveyance
constitutes the conveyance by the Company of substantially all of its properties
and assets to
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Kimco.
Section 2.03. The Company represents and warrants that (a)
immediately after giving effect to the Merger, and treating any indebtedness
which becomes an obligation of the Company or a Subsidiary as a result of the
Merger as having been incurred by the Company or such Subsidiary at the time of
the Merger, and (b) immediately after giving effect to the Conveyance and
treating any indebtedness which becomes an obligation of Kimco or a subsidiary
of Kimco as a result of the Conveyance as having been incurred by Kimco or such
Subsidiary at the time of the Conveyance, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing.
ARTICLE THREE
SUCCESSION AND SUBSTITUTION
Section 3.01. Upon the consummation of the Merger and the Conveyance,
Kimco shall succeed to and be substituted for the Company with the same effect
as if it had been named in the Indenture as the party of the first part and the
Company shall be relieved of any further obligation under the Indenture and the
Securities, all pursuant to Section 802 of the Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Capitalized terms used in this Supplemental Indenture
that have not otherwise been defined herein shall have the meanings assigned
thereto in the Indenture. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby.
Section 4.02. Except as supplemented hereby, all provisions in the
Indenture
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shall remain in full force and effect.
Section 4.03. This Supplemental Indenture is supplemental to the
Indenture, and the Indenture and this Supplemental Indenture shall henceforth be
read and construed together.
Section 4.04. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any provision of the Trust Indenture Act of 1939
(the "TIA") that is required under the TIA to be part of and govern any
provision of this Supplemental Indenture, such provision of the TIA shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the TIA that may be so modified or excluded, the provision of
the TIA shall be deemed to apply to the Indenture as so modified or to be
excluded by this Supplemental Indenture, as the case may be.
Section 4.05. In case any provision in this Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and this Supplemental Indenture shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
Section 4.06. Nothing in this Supplemental Indenture or the
Securities, express or implied, shall give to any Person, other than the parties
hereto and thereto and their successors hereunder and thereunder and the Holders
of the Securities, any benefit of any legal or equitable right, remedy or claim
under the Indenture, this Supplemental Indenture or the Securities.
Section 4.07. All agreements of Kimco in this Supplemental Indenture
shall bind its successors and assigns, whether so expressed or not.
Section 4.08. Any request, demand, notice or other communication to
Kimco in connection with the Indenture, as supplemented, shall be sufficient for
every purpose hereunder
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if in writing and mailed, first class postage paid, to Kimco addressed as
follows:
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, NY 11042
Attention: Treasurer
or to any other address hereafter furnished in writing to the Trustee by Kimco
for such purpose.
Section 4.09. This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same instrument.
Section 4.10. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
Section 4.11. The Indenture, as supplemented by this Supplemental
Indenture, is in all respects ratified and confirmed, and this Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
Section 4.12. The recitals and statements herein contained are made
by the Company and Kimco and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed as of the day and year first above written.
PAN PACIFIC RETAIL PROPERTIES, INC.
By /s/ Glenn Cohen
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Name: Glenn Cohen
Title: Vice President
KIMCO REALTY CORPORATION
By /s/ Bruce Rubenstein
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Name: Bruce Rubenstein
Title: Vice President
THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
By /s/ Melonee Young
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Name: Melonee Young
Title: Vice President