EXHIBIT 4(b)
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FIRST SUPPLEMENTAL INDENTURE
dated as of August 4, 1994
between
KIMCO REALTY CORPORATION
and
IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
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SENIOR DEBT SECURITIES
of
KIMCO REALTY CORPORATION
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1
THIS FIRST SUPPLEMENTAL INDENTURE, is entered into as of August 4, 1994, by
and between Kimco Realty Corporation, a Maryland corporation (the "Maryland
Company"), and IBJ Xxxxxxxx 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 (the "Delaware
Company"), and the Trustee entered into the Indenture dated as of September 1,
1993 (the "Indenture"), relating to the Delaware Company's senior debt
securities, including without limitation, its Floating Rate Senior Notes due
1998, its Floating Rate Senior Notes due 1999 and its 6 1/2% Senior Notes due
2003 (the "Securities");
WHEREAS, the merger (the "Merger") of the Delaware Company with and into
its wholly owned subsidiary, the Maryland Company, has occurred as of the date
hereof pursuant to the Agreement and Plan of Merger dated July 29, 1994, and the
Maryland Company has assumed all of the obligations of the Delaware Company (for
purposes of Section 801 of the Indenture);
WHEREAS, the Maryland 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 the First Supplemental Indenture to permit the Maryland Company to
assume all the obligations of the Delaware Company under the Indenture pursuant
to Section 801 of the Indenture;
WHEREAS, the Maryland Company and the Trustee are authorized to enter into
this First Supplemental Indenture; and
WHEREAS, simultaneously with the Merger, the Maryland Company changed its
name from Kimco Realty Corporation of Maryland to Kimco Realty Corporation;
NOW, THEREFORE, the Maryland Company and the Trustee agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein
are used as defined in the Indenture.
Section 2. The Maryland Company as the surviving corporation of the Merger
expressly acknowledges and assumes the due and punctual payment of the principal
of, premium, if any, and interest on the Securities and the performance and
observance of every covenant of the Indenture to be performed or observed by the
Delaware Company.
Section 3. On the date hereof, the Maryland Company (as the surviving
corporation of the Merger) shall, by virtue of the assumption described in
Section 2 above and the execution and delivery of this First Supplemental
Indenture, succeed to and be substituted for the Delaware Company.
Section 4. The Maryland Company (as the surviving corporation of the
Merger) hereby assumes all the agreements and obligations of the Delaware
Company under the Securities and the Indenture and agrees to become the
successor to the Delaware Company with respect to all such agreements and
obligations in accordance with the terms of such instruments.
Section 5. This First 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 6. This First 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 7. THIS FIRST 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 8. 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 Maryland Company, or the
validity of the execution by the Maryland Company of this First Supplemental
Indenture. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
2
IN WITNESS WHEREOF, Kimco Realty Corporation has caused this First
Supplemental Indenture to be duly signed and acknowledged by its Vice President
hereunto duly authorized, and its corporate seal to be affixed hereunto, and the
same to be attested by Its Secretary or Assistant Secretary and IBJ Xxxxxxxx
Bank & Trust Company has caused this First 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/ Xxxxx X. Petra
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Name: Xxxxx X. Xxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
[Corporate Seal]
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Attest:
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 4th day of August, 1994, before me personally came
Xxxxx X. Xxxxx to me known, being by me duly sworn, did depose and say that he
is a Vice President 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/ Xxxxx Xxxxxxxx
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Notary Public
My commission expires May 31, 1996
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STATE OF NEW YORK )
) ss:
COUNTY OF KINGS )
On this 5th day of August, 1994, before me personally came
Xxxxxx X. Xxxxxx to me known, being by me duly sworn, did depose and say that he
is an Assistant Vice President of IBJ Xxxxxxxx Bank & Trust Company, 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/ Xxxx Xxxxxxx
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Notary Public
My commission expires March 30, 1995
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