EXHIBIT 4(c)
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SECOND SUPPLEMENTAL INDENTURE
dated as of April 7, 1995
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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THIS SECOND SUPPLEMENTAL INDENTURE, is entered into as of
April 7, 1995, by and between Kimco Realty Corporation, a Maryland corporation
(the "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 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" and, together with the Original Indenture, the "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 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 Second Supplemental Indenture to amend certain existing
provisions or add certain additional provisions to the Indenture for the benefit
of Holders of all series of Securities created on or after the date of this
Second Supplemental Indenture;
WHEREAS, the Company and the Trustee are authorized to enter
into this Second Supplemental Indenture, and
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. Relation to Indenture. This Second 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 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. Certain Definitions. Section 101 of the Indenture
is amended so that the following definitions are added, in alphabetical order:
"Total Assets" means, as of any date, the sum of (i) the
Company's Undepreciated Real Estate Assets and (ii) all other assets of the
Company determined in accordance with GAAP (but excluding goodwill and amortized
debt costs).
"Unencumbered Total Asset Value" means, as of any date, the
sum of the Company's Total Assets which are unencumbered by any mortgage, lien,
charge, pledge or security interest that secures the payment of any obligations
under any Debt.
Section 4. Compensation and Reimbursement. Section 606 of the
Indenture is amended by replacing the words "Section 501(5) or Section 501(6)"
in the third to last paragraph thereof with the words "Section 501(6) or Section
501(7)."
Section 5. Waiver of Certain Covenants. In Section 1013 of the
Indenture, the following words are added after the words "Sections 1004 to 1010,
inclusive,": "and Section 1014."
Section 6. Maintenance of Unencumbered Total Asset Value. The
following is added as Section 1014 of the Indenture after Section 1013 thereof:
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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 percent (100%) 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.
Section 7. Deposit of Redemption Price. In Section 1105 of the
Indenture, after the words "(except if the Redemption Date shall be an Interest
Payment Date)" (but before the closing parentheses immediately after the word
"Date"), the following words are added: ", unless otherwise specified pursuant
to Section 301 for the Securities of such series".
Section 8. Securities Payable on Redemption Date. In the first
paragraph of Section 1106 of the Indenture, after the words "provided further
that, except as otherwise provided with respect to Securities convertible into
Common Stock or Preferred Stock," the following words are added: "and as
otherwise specified pursuant to Section 301 for the Securities of such series,".
Section 9. Repayment of Securities. In Section 1302 of the
Indenture, after the words "(except if the Repayment Date shall be an Interest
Payment Date)" (but before the closing parentheses immediately after the word
"Date"), the following words are added: ", unless otherwise specified pursuant
to Section 301 for the Securities of such series".
Section 10. When Securities Presented for Repayment become Due
and Payable. In Section 1304 of the Indenture, after the words "provided further
that, in the case of Registered Securities," the following words are added:
"unless otherwise specified pursuant to Section 301 for the Securities of such
series,".
Section 11. Covenant Defeasance. In Section 1403 of. the
Indenture, on both the fourth and the thirteenth lines of such section, the
following words are added after the words "Sections 1004 to 1010, inclusive,":
"and Section 1014".
Section 12. Counterparts. This Second 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 13. Governing Law. THIS SECOND 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 14. 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 Second
Supplemental Indenture. The Trustee makes no representations as to the validity
or sufficiency of this Second Supplemental Indenture.
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IN WITNESS WHEREOF, Kimco Realty Corporation has caused this
Second 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 IBJ Xxxxxxxx Bank & Trust Company has caused this Second 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: Chief Financial Officer
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/ Xxxxxx XxXxxxxxxx
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Name: Xxxxxx XxXxxxxxxx
Title: Assistant Xxxxxxxxx
0
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this 7th day of April, 1995, before me personally came
Xxxxx X. Xxxxx 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/ Xxxxxx Xxxxxx
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Notary Public
My commission expires July 31, 1995
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00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF KINGS )
On this 7th day of April, 1995, 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, 1997
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