Exhibit 4.1
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THIRD SUPPLEMENTAL INDENTURE
dated as of June 2, 2006
between
KIMCO REALTY CORPORATION
and
THE BANK OF NEW YORK, as Trustee
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SENIOR DEBT SECURITIES
of
KIMCO REALTY CORPORATION
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THIS THIRD SUPPLEMENTAL INDENTURE is entered into as of June
2, 2006 (the "Third Supplemental Indenture"), by and between Kimco Realty
Corporation, a Maryland corporation (the "Maryland Company"), and The Bank of
New York (successor by merger to IBJ Schroder Bank & Trust Company), a
corporation organized under the laws of the State of New York, as trustee (the
"Trustee").
WHEREAS, Kimco Realty Corporation, a Delaware corporation and
predecessor to the Company (the "Delaware Company"), and the Trustee entered
into the Indenture dated as of September 1, 1993 (the "Original Indenture"),
relating to the Delaware Company's senior debt securities;
WHEREAS, the Company and the Trustee entered into the First
Supplemental Indenture, dated as of August 4, 1994 (the "First Supplemental
Indenture"), pursuant to which the Company assumed all obligations of the
Delaware Company under the Original Indenture pursuant to Section 801 of the
Original Indenture;
WHEREAS, the Company and the Trustee entered into the Second
Supplemental Indenture, dated as of April 7, 1995 (the "Second Supplemental
Indenture" and, together with the Original Indenture and the First Supplemental
Indenture, the "Indenture"), pursuant to which certain provisions of the
Indenture were amended and certain additional provisions to the Indenture were
added for the benefit of Holders of all series of Securities created on or after
April 7, 1995 in accordance with Section 901 of the Indenture;
WHEREAS, Section 902 of the Indenture provides that the
Company, when authorized by a Board Resolution, and the Trustee may amend the
Indenture, with the written consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities affected by such amendments
(the "Requisite Consents"), by entering into a supplemental indenture;
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WHEREAS, the Company has solicited consents from the Holders
of the Outstanding Securities to approve the proposed amendments to the
Indenture set forth herein (the "Proposed Amendments") upon the terms and
subject to the conditions set forth in the Consent Solicitation Statement, dated
May 16, 2006, and as supplemented on May 30, 2006 (as supplemented, the "Consent
Solicitation"), as the same may be further amended, supplemented or modified;
WHEREAS, the Requisite Consents to effect the Proposed
Amendments under the Indenture have been received;
WHEREAS, this Third Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of the Company; and
WHEREAS, all other acts and proceedings required by law, by
the Indenture, and by the charter documents of the Company to make this Third
Supplemental Indenture a valid and binding agreement for the purposes expressed
herein, in accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, and for other good and valuable
consideration the receipt of which is hereby acknowledged, and for the equal and
proportionate benefit of the Holders of the Outstanding Securities, the Company
and the Trustee hereby agree as follows:
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Section 1. Relation to Indenture. This Third Supplemental
Indenture supplements the Indenture and shall be part and subject to all the
terms thereof. Except as supplemented hereby, the Indenture and Securities
issued thereunder shall continue in full force and effect.
Section 2. Capitalized Terms. Capitalized terms used and not
otherwise defined herein shall have the respective meanings given such terms in
the Indenture.
Section 3. Amendment to Clause (a) of Section 1004 of the
Indenture. Clause (a) of Section 1004 of the Indenture is hereby amended and
restated to read in its entirety as follows:
"(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
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 Debt."
Section 4. Amendment to Clause (c) of Section 1004 of the
Indenture. Clause (c) of Section 1004 of the Indenture is hereby amended and
restated to read in its entirety as follows:
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"(c) In addition to the limitations set forth in
subsections (a) and (b) of this Section 1004, the Company will
not, and will not permit any Subsidiary to, incur any Debt
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the property of the
Company or any Subsidiary, whether owned at the date hereof or
hereafter acquired, 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 which is secured by any mortgage, lien, charge,
pledge, encumbrance or security interest on property of the
Company or any Subsidiary is greater than 40% of 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 Debt."
Section 5. Amendment to Section 1014 of the Indenture. Section
1014 of the Indenture is hereby amended and restated to read in its entirety as
follows:
"SECTION 1014. Maintenance of Unencumbered Total
Asset Value. The Company will at all times maintain an
Unencumbered Total Asset Value in an amount of not less than
one hundred fifty percent (150%) of the aggregate principal
amount of all outstanding Debt of the Company and its
Subsidiaries that is unsecured; this covenant shall apply
solely to the benefit of Holders of series of Securities
created on or after April 7, 1995."
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Section 6. Amendment to the Securities. The Securities include
certain of the foregoing provisions from the Indenture to be amended pursuant to
Sections 3, 4 and 5 hereof. Upon the effective date of this Third Supplemental
Indenture, such provisions from the Securities shall be deemed amended as
applicable.
Section 7. Trustee's Acceptance. The Trustee hereby accepts
this Third Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture.
Section 8. Reference to the Effect on the Indenture.
(a) On and after the effective date of this Third Supplemental
Indenture, each reference in the Indenture to "this Indenture," "hereunder,"
"hereof," or "herein" shall mean and be a reference to the Indenture as
supplemented by this Third Supplemental Indenture unless the context otherwise
requires.
(b) Except as specifically modified or amended by this Third
Supplemental Indenture, the Indenture is in all respects ratified and confirmed
and all the terms, conditions and provisions thereof shall remain in full force
and effect. Upon the execution and delivery of this Third Supplemental Indenture
by the Company and the Trustee, this Third Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities shall be
bound hereby. In case of conflict between the terms and conditions contained in
the Securities and those contained in the Indenture, as modified and amended by
this Third Supplemental Indenture, the provisions of the Indenture, as modified
and amended by this Third Supplemental Indenture, shall control. Any and all
references, whether within the Indenture or in any notice, certificate or other
instrument or document, shall be deemed to include a reference to this Third
Supplemental Indenture (whether or not made), unless the context shall otherwise
require.
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Section 9. Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 10. Trust Indenture Act Controls. If any provision of
this Third Supplemental Indenture limits, qualifies or conflicts with another
provision of this Third Supplemental Indenture or the Indenture that is required
to be included by the Trust Indenture Act of 1939, as amended (the "Act"), as in
force at the date this Third Supplemental Indenture is executed, the provision
required by the Act shall control.
Section 11. Benefits of Third Supplemental Indenture or the
Securities. Nothing in this Third 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 Third Supplemental Indenture or the Securities.
Section 12. Successors. All agreements of the Company in this
Third Supplemental Indenture shall bind its and their successors. All agreements
of the Trustee in this Third Supplemental Indenture shall bind its successors.
Section 13. Concerning the Trustee. The Trustee shall not be
responsible for any recital herein as such recitals shall be taken as statements
of the Company, or the validity of the execution by the Company of this Third
Supplemental Indenture. The Trustee makes no representations as to the validity
or sufficiency of this Third Supplemental Indenture.
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Section 14. Certain Duties and Responsibilities of the
Trustee. In entering into this Third Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 15. Counterparts and Method of Execution. This Third
Supplemental Indenture may be executed in several counterparts, all of which
together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties have not signed the same counterpart.
Section 16. Titles. Section titles are for descriptive
purposes only and shall not control or alter the meaning of this Third
Supplemental Indenture as set forth in the text.
Section 17. Severability. In case any one or more of the
provisions in this Third Supplemental Indenture shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
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IN WITNESS WHEREOF, Kimco Realty Corporation has caused this
Third Supplemental Indenture to be duly signed and acknowledged by its Chief
Financial Officer hereunto duly authorized, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or Assistant Secretary
and The Bank of New York has caused this Third Supplemental Indenture to be duly
signed and acknowledged by one of its Assistant Vice Presidents thereunto duly
authorized, and its corporate seal to be affixed hereunto, and the same to be
attested by one of its Assistant Secretaries.
KIMCO REALTY CORPORATION,
a Maryland corporation
[Corporate Seal]
By: /s/ Michael V. Pappagallo
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Name: Michael V. Pappagallo
Title: Chief Financial Officer
Attest:
By: /s/ Glenn G. Cohen
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Name: Glenn G. Cohen
Title: Vice President-Treasurer
THE BANK OF NEW YORK,
as Trustee
[Corporate Seal]
By: /s/ Geovanni Barris
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Name: Geovanni Barris
Title: Vice President
Attest:
By: /s/ Stacey B. Poindexter
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Name: Stacey B. Poindexter
Title: Assistant Vice President
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 1 day of June, 2006, before me personally came Michael
V. Pappagallo to me known, being by me duly sworn, did depose and say that he is
the Chief Financial Officer of Kimco Realty Corporation, one of the parties
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
/s/ Kathleen M. Gazerro
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Notary Public
My commission expires
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[Notary Stamp]
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 2nd day of June, 2006, before me personally came
Geovanni Barris to me known, being by me duly sworn, did depose and say that he
is a Vice President of The Bank of New York, one of the parties described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
/s/ Carlos R. Luciano
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Notary Public
My commission expires
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[Notary Stamp]
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