SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.13
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE made as of the 16th day of August, 2006.
AMONG:
KIMCO NORTH TRUST III, a trust formed under the laws of the State of
New York, having its principal place of business located at 0000 Xxx
Xxxx Xxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000;
(hereinafter called the “Issuer”)
AND
KIMCO REALTY CORPORATION, having its principal office located at
0000 Xxx Xxxx Xxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000,
(hereinafter called the “Guarantor”)
AND
BNY TRUST COMPANY OF CANADA, a trust company existing and licensed
under the federal laws of Canada, acting through its Corporate Trust
Offices.
(hereinafter called the “Trustee”)
WITNESSETH THAT:
WHEREAS in and by an Indenture dated as of April 21, 2005 by and among the Issuer, the
Guarantor and the Trustee (hereinafter called the “Initial Indenture” and, as amended and
supplemented pursuant to the First Supplemental Indenture made as of June 2, 2006, hereinafter
called the “Original Indenture”), provision was made for the issue by the Issuer of Notes;
AND WHEREAS the Issuer issued, pursuant to the Initial Indenture, “Series 1 4.45% Notes
Maturing 2010”, dated as of April 21, 2005, in the aggregate principal amount of $150,000,000;
AND WHEREAS the Issuer is desirous of issuing a further series of notes in the aggregate
principal amount of $200,000,000, to be designated as “Series 2 5.18% Notes Maturing 2013” (the
“Second Series Notes”);
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AND WHEREAS the Issuer has the necessary power, capacity and authority to create and issue the
Second Series Notes to be issued as herein provided;
AND WHEREAS the Original Indenture, as amended and supplemented by this supplemental
indenture, is hereinafter referred to as the “Indenture”;
AND WHEREAS all things necessary have been done and performed to make the Second Series Notes,
when certified by the Trustee and issued as provided in the Original Indenture, legal, valid and
binding obligations of the Issuer with the benefits and subject to the terms of the Indenture;
AND WHEREAS the foregoing recitals are made as representations and statements of fact, as
applicable, by the Issuer and not by the Trustee.
NOW THEREFORE it is hereby covenanted, agreed and declared as follows:
ARTICLE 1
INTERPRETATION AND RELATED MATTERS
INTERPRETATION AND RELATED MATTERS
1.1 Interpretation of Supplemental Indenture
In this supplemental indenture:
| (a) | “this supplemental indenture”, “this supplemental deed”, “hereof”, “herein”, “hereby”, “hereunder”, and similar expressions refer to this supplemental indenture and not to any particular Article, Section or other portion hereof, and include any and every instrument supplemental or ancillary hereto or in implementation hereof; and | ||
| (b) | all references to Articles, Sections and Exhibits refer, unless otherwise specified, to articles, sections and exhibits of this supplemental indenture. |
1.2 Defined Terms
Unless otherwise defined herein or unless the context otherwise specifies or requires, all
capitalized terms contained in this supplemental indenture which are defined in the Original
Indenture shall, for all purposes hereof, have the meanings given to such terms in the Original
Indenture. For the purpose of this supplemental indenture, the following terms have the following
meanings:
“Canada Yield Price” in relation to any Second Series Notes being redeemed, means the price,
on any date (which in the case of any calculation of the Make-Whole Amount hereunder shall be the
date the redemption notice is given), in respect of any principal amount of such Second Series
Notes, or of the portion of such Second Series Notes being redeemed,
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outstanding on such date, necessary to provide a yield on such principal amount from the
applicable redemption date to the day of maturity of the Second Series Notes equal to the
Government of Canada Yield plus 22 basis points; provided that, where the Issuer exercises its
Redemption Right in circumstances where:
| (a) | it has sought and obtained a waiver or consent (as the case may be) from the requisite majority of holders of each series of securities issued under the Guarantor Indenture in respect of a default thereunder or an amendment to the terms or conditions thereof (as the case may be); and | ||
| (b) | the requisite majority of holders of the Second Series Notes have refused to grant such a waiver or consent in circumstances where they have been offered the equivalent cash or non-cash consideration or any other accommodation (if any) to the extent applicable as that offered the holders referred to in (a) above; |
then, notwithstanding the foregoing for purposes of calculating the Redemption Price, the
“Canada Yield Price” shall be, in relation to any Second Series Notes being redeemed, the price, on
any date (which in the case of any calculation of the Make-Whole Amount hereunder shall be the date
the redemption notice is given), in respect of any principal amount of such Second Series Notes, or
of the portion of such Second Series Notes being redeemed, outstanding on such date, necessary to
provide a yield on such principal amount from the applicable Redemption Date to the day of maturity
of the Second Series Notes equal to the Government of Canada Yield plus 75 basis points.
“Government of Canada Yield” on any date means, in the case of any Second Series Notes, the
arithmetical average of the mid-market yield to maturity on such date, assuming semi-annual
compounding, expressed as a rate per annum, which the applicable Government of Canada Bond would
carry if issued in Canadian dollars in Canada at 100% of its principal amount on such date with a
term to maturity equal to the remaining term of such Second Series Notes quoted by two major
Canadian investment dealers selected by the Issuer from amongst Scotia Capital Inc., RBC Dominion
Securities Inc., CIBC World Markets Inc. or any of their successors and any other investment dealer
which is a member of the Investment Dealers Association of Canada selected by the Issuer and
approved by the Trustee, acting reasonably.
“Make-Whole Amount” in respect of any given principal amount of Second Series Notes means, at
any given time, the amount, if any, by which (i) the Canada Yield Price in respect of such
principal amount exceeds (ii) such principal amount.
“Redemption Right” has the meaning ascribed thereto in Section 3.1(d) hereof; and
“Second Series Notes” has the meaning ascribed thereto in the recitals hereto.
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1.3 Headings, etc.
The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
1.4 Recitals and Exhibits
The recitals of this supplemental indenture and the exhibits attached hereto form an integral
part of this supplemental indenture.
1.5 Monetary References
Whenever any amounts of money are referred to herein, such amounts shall be deemed to be
lawful money of Canada unless otherwise expressed.
1.6 Language
The parties to this supplemental indenture hereby require that this supplemental indenture and
all related documents be prepared in the English language. Les parties à cet acte de fiducie
supplémentaire demandent par les présentes que l’acte de fiducie supplémentaire et tous les
documents connexes soient rédigés en anglais.
1.7 Conflict with Indenture Legislation.
If and to the extent that any provision of this supplemental indenture limits, qualifies or
conflicts with a mandatory requirement of Indenture Legislation, such mandatory requirement shall
prevail.
1.8 Successors and Assigns.
All covenants and agreements of the Issuer and the Guarantor in this supplemental indenture
shall bind their respective successors and assigns, whether so expressed or not. All covenants and
agreements of the Trustee in this supplemental indenture shall bind its successors.
1.9 Severability Clause.
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.
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ARTICLE 2
INDENTURE SUPPLEMENTAL TO ORIGINAL INDENTURE
INDENTURE SUPPLEMENTAL TO ORIGINAL INDENTURE
2.1 Incorporation with Original Indenture
This supplemental indenture is a supplemental indenture within the meaning of the Original
Indenture and the Original Indenture and the Second Series Notes issued thereunder shall henceforth
be read in conjunction with this supplemental indenture, and have effect so far as practicable as
if all the provisions of the Original Indenture and this supplemental indenture were contained in
one instrument.
ARTICLE 3
ISSUANCE OF SECOND SERIES NOTES
ISSUANCE OF SECOND SERIES NOTES
3.1 Second Series Notes
(a) General
The second series of notes to be issued under the Indenture shall be the Second Series Notes
and shall be designated as “Series 2 5.18% Notes Maturing 2013”. Each Second Series Note may be
issued by the Issuer in Dollars and, subject to the Issuer’s right to reopen the series for
issuance of additional securities of such series, shall be limited to $200,000,000 aggregate
principal amount. Each Second Series Note shall bear its Original Issue Date and shall mature on
the date specified therein. Payment of the Maturity Consideration for the Second Series Note and
Interest thereon will be made in lawful money of Canada in accordance with Section 3.7 of the
Indenture. The Second Series Notes shall be issued as Book-Entry Securities in denominations of
$1,000 and integral multiples thereof. The global forms of the Second Series Notes, the
certificate of the Trustee to be executed on the global form of the Second Series Note and the
registration panel thereon shall be in the form set forth in Exhibit A hereto. In addition
to the English text thereof, the Second Series Note may include a corresponding French text.
In the event of any contradiction, discrepancy or difference between the English language
portion of the text and the French language portion of the text of the form of Security, the
certificate of the Trustee or the registration panel, the English language portion of the text
shall govern, except where and only to the extent that applicable law otherwise requires.
(b) Execution and Delivery of Second Series Notes
At any time and from time to time after the execution of this supplemental indenture and after
delivery by the Issuer to the Trustee of the Resolution and the Officer’s Certificate referred to
in Sections 3.1 and 3.3 of the Indenture, the Issuer may execute and deliver to the Trustee for
certification Second Series Notes, and the Trustee shall thereupon certify and deliver said Second
Series Notes as directed by an Issuer Order.
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(c) Terms of Second Series Notes
The terms and conditions of the Second Series Notes shall be as set out in Exhibit A hereto.
The Issuer Order referred to in paragraph (b) above shall, subject to the requirements of Article 2
and Article 3 of the Indenture and the provisions of this supplemental indenture, set forth with
respect to each issue of Second Series Notes to be delivered by the Trustee, the terms of such
Second Series Notes.
(d) Redemption
The Issuer shall have the right (the “Redemption Right”), at its option and in accordance
with Article 11 of the Indenture, to redeem at any time and from time to time prior to the
Maturity, upon not more than 60 days’ nor less than 30 days’ prior notice, the whole or any part of
such Second Series Notes then outstanding, on a pro rata basis, at the Redemption Price. The
Redemption Price in respect of such Second Series Notes shall be calculated as the principal amount
outstanding on the Second Series Notes to be redeemed plus the Make-Whole Amount, if any, on such
amount, together, in each case, with all interest accrued and remaining unpaid to and including the
Redemption Date.
The Second Series Notes may also be redeemed in accordance with Section 11.3 of the Indenture.
(e) Purchase by the Issuer
The Issuer may (subject to Article 11 of the Indenture) at any time purchase all or any of the
Second Series Notes in the market (which shall include a purchase from or through an investment
dealer or a firm holding membership on a recognized stock exchange) or by invitation for tenders or
by private contract at such price or prices as may be determined by the Board.
If, upon an invitation for tenders, more Second Series Notes than the Issuer is prepared to
accept are tendered at the same lowest price that the Issuer is prepared to accept, the Second
Series Notes to be purchased by the Issuer shall be selected by the Trustee pro rata, by lot, or in
such other manner as the Trustee may consider equitable, from the Second Series Notes tendered by
each Holder who tendered at such lowest price. For this purpose, the Trustee may make, and from
time to time amend, regulations with respect to the manner in which Second Series Notes may be so
selected and regulations so made shall be valid and binding upon all Holders notwithstanding the
fact that, as a result thereof, one or more of such Second Series Notes may become subject to
purchase in part only. The Holder of any Second Series Notes of which a part only is purchased,
upon surrender of such Second Series Notes for payment, shall be entitled to receive, without
expense to such Holder, one or more new Second Series Notes for the unpurchased part so surrendered
and the Trustee shall certify and deliver such new Second Series Notes upon receipt of the Second
Series Notes so surrendered.
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(f) Delivery for Cancellation
At the option of the Issuer, all Second Series Notes purchased under this supplemental
indenture may be delivered to the Trustee and may be cancelled by it and upon such occurrence no
Second Series Notes shall be issued in substitution therefor.
(g) U.S. Withholding
The Holder and, as a condition precedent to any transfer or exchange of the Second Series
Notes, the transferee shall execute and file such forms or other documents as may be required to
secure any reduction of or exemption from U.S. withholding tax, including the furnishing by the
transferee of Internal Revenue Service Form W-8BEN to the Trustee and the Issuer.
3.2 Interest Provisions.
Each Second Series Notes shall bear Interest from its date of issue at the rate of 5.18 % per
annum, until the Maturity Consideration for such Second Series Notes is paid or duly made available
for payment. Interest payments in respect of the Second Series Notes shall equal the amount of
Interest accrued from and including the immediately preceding Interest Payment Date in respect of
which Interest has been paid or duly made available for payment (or from and including the date of
issue, if no Interest has been paid with respect to the applicable Second Series Note) to but
excluding the related Interest Payment Date or the Stated Maturity (as specified in the applicable
Second Series Note), as the case may be.
Interest shall be payable semi-annually in arrears on each date specified in the Second Series
Notes on which an instalment of Interest is due and payable and on the Stated Maturity. Unless
otherwise specified in the Second Series Notes, the first payment of Interest on any Second Series
Note originally issued between a Regular Record Date and the related Interest Payment Date or on an
Interest Payment Date will be made on the Interest Payment Date immediately following the next
succeeding Regular Record Date to the holder on such next succeeding Record Date.
The Interest Payment Dates for the Second Series Notes shall be specified in the applicable
Second Series Notes. If any Interest Payment Date or the Stated Maturity of the Second Series
Notes falls on a day that is not a Business Day, the required payment of Maturity Consideration,
Interest and Additional Amounts and other amounts payable under Section 10.4 of the Indenture will
be made on the next succeeding Business Day as if made on the date such payment was due, and no
Interest shall accrue on such payment for the period from and after such Interest Payment Date or
the Stated Maturity, as the case may be, to the date of such payment on the next succeeding
Business Day.
Interest on any Second Series Note which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall, if so provided in such Second Series Note, be paid to the
Person in whose name that Second Series Note (or one or more Predecessor
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Securities) is registered as of the close of business on the Regular Record Date for such
Interest in accordance with Section 3.7 of the Indenture.
Subject to the provisions of Sections 3.7 and 3.8 of the Indenture, each Second Series Note
delivered under this supplemental indenture upon registration of transfer of or in exchange for or
in lieu of any other Second Series Note shall carry the rights to Interest accrued and unpaid, and
to accrue, which were carried by such other Second Series Note.
ARTICLE 4
GUARANTEE, EXECUTION AND FORMAL DATE
GUARANTEE, EXECUTION AND FORMAL DATE
4.1 Guarantee
The Guarantor hereby acknowledges and confirms that the Guarantee continues to be in full
force and effect, without abrogation, impairment or limitation, and that nothing contained in this
supplemental indenture shall in any way operate or be construed as a reduction or discharge of the
Guarantee or effect novation. The Guarantor hereby reaffirms (a) the covenants and agreements made
by the Guarantor contained in the Indenture and Guarantee, (b), its guarantee of payment and
performance of the obligations of the Issuer under the Indenture pursuant to the Guarantee, in each
case, as such covenants, agreements and other provisions may be modified by this supplemental
indenture.
4.2 Execution
This supplemental indenture may be simultaneously executed in several counterparts, each of
which when so executed shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument.
4.3 Formal Date and Applicable Law
For the purpose of convenience this supplemental indenture may be referred to as bearing the
formal date of August 16, 2006, irrespective of the actual date of execution hereof. This
supplemental indenture shall be governed by the laws of Québec and the laws of Canada applicable
therein.
(Signature page follows)
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IN WITNESS whereof the parties hereto have executed these presents under their respective
corporate seals and the hands of their proper officers in that behalf.
| KIMCO NORTH TRUST III |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| KIMCO REALTY CORPORATION |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| BNY TRUST COMPANY OF CANADA |
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| By: | /s/ Xxxxxx X. Xxxx | |||
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