FIFTH SUPPLEMENTAL INDENTURE dated as of September 24, 2009 between KIMCO REALTY CORPORATION and THE BANK OF NEW YORK MELLON, as Trustee __________________________________ SENIOR DEBT SECURITIES of KIMCO REALTY CORPORATION __________________________________
Exhibit 4.1
FIFTH SUPPLEMENTAL INDENTURE
dated as of September 24, 2009
between
KIMCO REALTY CORPORATION
and
THE BANK OF NEW YORK MELLON, as Trustee
__________________________________
SENIOR DEBT SECURITIES
of
KIMCO REALTY CORPORATION
__________________________________
THIS FIFTH SUPPLEMENTAL INDENTURE, is entered into as of September 24, 2009 (the “Fifth Supplemental Indenture”), by and between Kimco Realty Corporation, a Maryland corporation (the “Company”), and The Bank of New York Mellon (as successor to IBJ Schroder Bank & Trust Company), a banking 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”), 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, the Company and the Trustee entered into the Third Supplemental Indenture dated as of June 2, 2006 (the “Third Supplemental 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 June 2, 2006 in accordance with Section 901 of the Indenture;
WHEREAS, the Company and the Trustee entered into the Fourth Supplemental Indenture dated as of April 26, 2007 (the “Fourth Supplemental Indenture” and, together with the Original Indenture, the First Supplemental Indenture, the Second Supplement Indenture and the Third 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 26, 2007 in accordance with Section 901 of the Indenture;
WHEREAS, the Company has made a request to the Trustee that the Trustee join with it, in accordance with Sections 301 and 901 of the Indenture, in the execution of this Fifth Supplemental Indenture to establish the terms of Securities of all series created on or after the date of this Fifth Supplemental Indenture as permitted by Section 201 and Section 901 of the Indenture; and
WHEREAS, the Company and the Trustee are authorized to enter into this Fifth Supplemental Indenture.
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. Relation to Indenture. This Fifth Supplemental Indenture amends and supplements the Indenture and shall be part and subject to all the terms thereof. Except as amended and supplemented hereby, the Indenture and Securities issued thereunder shall continue in full force and effect.
Section 2. Definitions. Each term used herein which is defined in the Indenture has the meaning assigned to such term in the Original Indenture unless otherwise specifically defined herein, in which case the definition set forth herein shall govern.
Section 3. Limitations on Incurrence of Debt. Notwithstanding anything to the contrary contained in the Fourth Supplemental Indenture, the Securities of all series created on or after the date of this Fifth Supplemental Indenture shall be subject to Section 1004 of the Indenture (as such Section 1004 may have been amended through and including the Third Supplemental Indenture or as may be amended on or after the date hereof in accordance with the terms of the Indenture).
Section 4. Restrictions on Dividends and Other Distributions. Notwithstanding anything to the contrary contained in the Fourth Supplemental Indenture, the Securities of all series created on or after the date of this Fifth Supplemental Indenture shall be subject to Section 1005 of the Indenture (as such Section 1005 may be amended on or after the date hereof in accordance with the terms of the Indenture).
Section 5. Maintenance of Unencumbered Total Asset Value. Notwithstanding anything to the contrary contained in the Fourth Supplemental Indenture, the Securities of all series created on or after the date of this Fifth Supplemental Indenture shall be subject to Section 1014 of the Indenture (as such Section 1014 may have been amended through and including the Third Supplemental Indenture or as may be amended on or after the date hereof in accordance with the terms of the Indenture).
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Section 6. Counterparts. This Fifth Supplemental Indenture may be executed in counterparts, each of which shall be deemed an original, but all of which shall together constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the same counterpart.
Section 7. Trustee’s Acceptance. The Trustee hereby accepts this Fifth 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 Fifth 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 Fifth Supplemental Indenture unless the context otherwise requires.
(b)
Except as specifically modified or amended by this Fifth 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 Fifth Supplemental Indenture by the Company and the Trustee, this Fifth Supplemental Indenture shall form a part of the Indenture for all purposes. 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 Fifth Supplemental Indenture (whether or not made), unless the context shall otherwise require.
Section 9. Governing Law. THIS FIFTH 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 Fifth Supplemental Indenture limits, qualifies or conflicts with another provision of this Fifth 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 Fifth Supplemental Indenture is executed, the provision required by the Act shall control.
Section 11. Benefits of Fifth Supplemental Indenture or the Securities. Nothing in this Fifth 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 Fifth Supplemental Indenture or the Securities.
Section 12. Successors. All agreements of the Company in this Fifth Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Fifth Supplemental Indenture shall bind its successors.
Section 13. Concerning the Trustee. The Trustee shall not be responsible for any recital herein (other than the sixth recital 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 Fifth Supplemental Indenture. The Trustee makes no representations as to the validity or sufficiency of this Fifth Supplemental Indenture.
Section 14. Certain Duties and Responsibilities of the Trustee. In entering into this Fifth 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. Titles. Section titles are for descriptive purposes only and shall not control or alter the meaning of this Fifth Supplemental Indenture as set forth in the text.
Section 16. Severability. In case any one or more of the provisions in this Fifth 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 Fifth Supplemental Indenture to be duly signed and acknowledged by its Chief Financial Officer hereunto duly authorized, and the same to be attested by its Secretary or Assistant Secretary and The Bank of New York Mellon has caused this Fifth Supplemental Indenture to be duly signed by one of its Vice Presidents thereunto duly authorized.
KIMCO REALTY CORPORATION,
a Maryland corporation
By: /s/ Michael V. Pappagallo
Name: Michael V. Pappagallo
Title: Executive Vice President, Chief Financial Officer and
Chief Administrative Officer
Attest:
By: /s/ Bruce Rubenstein
Name: Bruce Rubenstein
Title: Vice President,
General Counsel and Secretary
THE BANK OF NEW YORK MELLON, as Trustee
By: /s/ Geovanni Barris
Name: Geovanni Barris
Title: Vice President
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