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 10
