Prepared and filed by St Ives Burrups






Exhibit 10.21


 








 


CDN $250,000,000


 


SECOND AMENDED AND RESTATED
  CREDIT AGREEMENT


 


Dated as of January 25, 2006


 


among


 


KIMCO NORTH TRUST I,


KIMCO NORTH TRUST II,


KIMCO NORTH TRUST III,


KIMCO NORTH LOAN TRUST IV,


KIMCO NORTH TRUST V,


KIMCO NORTH TRUST VI,
  as Borrowers,


 


The Other Borrowers
  from Time to Time Parties Hereto,


 


The Several Lenders


from Time to Time Parties Hereto,


 


ROYAL BANK OF CANADA,


as Issuing Lender,


 


THE BANK OF NOVA SCOTIA


and


CANADIAN IMPERIAL BANK OF COMMERCE,


as Syndication Agents,


 


BANK OF AMERICA, N.A.,


as Documentation Agent,


 


ROYAL BANK OF CANADA,


as Administrative Agent,


and


KIMCO REALTY CORPORATION,
  as a Guarantor and


for the Other Limited Purposes Set Forth Herein


 








 


RBC CAPITAL MARKETS,


as Bookrunner and Lead Arranger


 








 


119








 


	
  ARTICLE    I          DEFINITIONS

  	
  126

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    1.1

  	
   

  	
  Defined    Terms

  	
  126

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    1.2

  	
   

  	
  Other    Definitional Provisions; Interpretation

  	
  149

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    1.3

  	
   

  	
  Accounting    Terms; GAAP

  	
  150

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    II          THE LOANS

  	
  150

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.1

  	
   

  	
  Several    Borrowers and Loans

  	
  150

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.2

  	
   

  	
  Loans; Etc.

  	
  150

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.3

  	
   

  	
  Optional and    Mandatory Prepayments

  	
  153

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.4

  	
   

  	
  Conversion    and Continuation Options

  	
  154

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.5

  	
   

  	
  Fees

  	
  155

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.6

  	
   

  	
  Interest    Rates and Payment Dates

  	
  155

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.7

  	
   

  	
  Computation    of Interest and Fees

  	
  156

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.8

  	
   

  	
  Inability to    Determine Interest Rate

  	
  157

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.9

  	
   

  	
  Pro Rata    Treatment and Payments

  	
  157

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.10

  	
   

  	
  Illegality

  	
  158

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.11

  	
   

  	
  Requirements    of Law

  	
  159

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.12

  	
   

  	
  Taxes

  	
  161

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.13

  	
   

  	
  Indemnity

  	
  163

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.14

  	
   

  	
  Change of    Lending Office

  	
  163

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.15

  	
   

  	
  Replacement    of Lenders under Certain Circumstances

  	
  163

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.16

  	
   

  	
  Additional Borrowers; Kimco as Authorized Exclusive Agent

  	
  164

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.17

  	
   

  	
   [Intentionally Omitted.]

  	
  166

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    2.18

  	
   

  	
  Identity of    Lenders; Funding of Loans

  	
  166

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    III          LETTERS OF    CREDIT

  	
  166

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.1

  	
   

  	
  L/C    Commitment

  	
  166

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.2

  	
   

  	
  Procedure    for Issuance of Letters of Credit

  	
  167

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.3

  	
   

  	
  Fees and    Other Charges

  	
  167

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.4

  	
   

  	
  L/C    Participations

  	
  168

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.5

  	
   

  	
  Reimbursement    Obligation of the Borrowers

  	
  169

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.6

  	
   

  	
  Obligations    Absolute

  	
  169

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.7

  	
   

  	
  Letter of    Credit Payments

  	
  170

  



 


120








 


	
            SECTION    3.8

  	
   

  	
  Applications

  	
  171

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    3.9

  	
   

  	
  Replacement    of the Issuing Lender; Alternate Issuing Lender

  	
  171

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    IV          REPRESENTATIONS    AND WARRANTIES

  	
  171

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.1

  	
   

  	
  Financial    Condition

  	
  172

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.2

  	
   

  	
  No Change

  	
  172

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.3

  	
   

  	
  Corporate    Existence; Compliance with Law

  	
  172

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.4

  	
   

  	
  Corporate    Power; Authorization; Enforceable Obligations

  	
  173

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.5

  	
   

  	
  No Legal Bar

  	
  173

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.6

  	
   

  	
  No Material    Litigation

  	
  174

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.7

  	
   

  	
  No Default

  	
  174

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.8

  	
   

  	
  Ownership of    Property

  	
  174

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.9

  	
   

  	
  Intellectual    Property

  	
  174

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.10

  	
   

  	
  No    Burdensome Restrictions; Disclosure

  	
  174

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.11

  	
   

  	
  Taxes

  	
  175

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.12

  	
   

  	
  Federal    Regulations

  	
  175

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.13

  	
   

  	
  ERISA

  	
  175

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.14

  	
   

  	
  Investment    Company Act; Other Regulations

  	
  176

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.15

  	
   

  	
   [Intentionally Omitted.]

  	
  176

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.16

  	
   

  	
  Purpose

  	
  176

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.17

  	
   

  	
  Environmental    Matters

  	
  176

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.18

  	
   

  	
  Insurance

  	
  177

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.19

  	
   

  	
  Condition of    Properties

  	
  177

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.20

  	
   

  	
  Benefit of    Loans

  	
  178

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.21

  	
   

  	
  REIT Status

  	
  178

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    4.22

  	
   

  	
  Solvency

  	
  178

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    V          CONDITIONS

  	
  178

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    5.1

  	
   

  	
  Conditions    to Effectiveness / Effective Date

  	
  178

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    5.2

  	
   

  	
  Conditions    to Each Extension of Credit

  	
  179

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    VI          AFFIRMATIVE    COVENANTS

  	
  180

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.1

  	
   

  	
  Financial    Statements

  	
  180

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.2

  	
   

  	
  Certificates;    Other Information

  	
  181

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.3

  	
   

  	
  Payment of    Obligations

  	
  181

  



 


121








 


	
            SECTION    6.4

  	
   

  	
  Maintenance    of Existence, etc

  	
  181

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.5

  	
   

  	
  Maintenance    of Property; Insurance

  	
  182

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.6

  	
   

  	
  Inspection    of Property; Books and Records; Discussions

  	
  182

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.7

  	
   

  	
  Notices

  	
  182

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.8

  	
   

  	
  Environmental    Laws

  	
  183

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    6.9

  	
   

  	
  Baseline    Conditions

  	
  184

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    VII          NEGATIVE    COVENANTS

  	
  184

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.1

  	
   

  	
  Financial    Covenants

  	
  184

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.2

  	
   

  	
  Limitation    on Certain Fundamental Changes

  	
  185

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.3

  	
   

  	
  Limitation    on Restricted Payments

  	
  186

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.4

  	
   

  	
  Limitation    on Investments, Loans and Advances

  	
  186

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.5

  	
   

  	
  Limitation    on Transactions with Affiliates

  	
  186

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.6

  	
   

  	
  Limitation    on Changes in Fiscal Year

  	
  187

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    7.7

  	
   

  	
  Limitation    on Lines of Business; Issuance of Commercial Paper; Creation of Subsidiaries;    Negative Pledges Swap Agreements

  	
  187

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    VIII        EVENTS OF    DEFAULT

  	
  187

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    IX          THE AGENTS

  	
  192

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    9.1

  	
   

  	
  The Agents

  	
  192

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    9.2

  	
   

  	
  Indemnification

  	
  194

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    9.3

  	
   

  	
  The    Syndication Agents,  Documentation    Agent, Lead Arranger, and Bookrunner

  	
  195

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    X          MISCELLANEOUS

  	
  195

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.1

  	
   

  	
  Amendments    and Waivers; Automatic Modifications

  	
  195

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.2

  	
   

  	
  Notices

  	
  197

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.3

  	
   

  	
  No Waiver;    Cumulative Remedies

  	
  198

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.4

  	
   

  	
  Survival of    Representations and Warranties

  	
  198

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.5

  	
   

  	
  Payment of    Expenses and Taxes

  	
  198

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.6

  	
   

  	
  Successors    and Assigns

  	
  199

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.7

  	
   

  	
  Disclosure

  	
  203

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.8

  	
   

  	
   [Intentionally Omitted.]

  	
  203

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.9

  	
   

  	
  Extension of    Maturity Date

  	
  203

  



 


122








 


	
            SECTION    10.10

  	
   

  	
  Subsidiary    Guarantors; Release of Borrowers

  	
  203

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.11

  	
   

  	
  Adjustments;    Set-off

  	
  204

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.12

  	
   

  	
  Counterparts

  	
  205

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.13

  	
   

  	
  Severability

  	
  205

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.14

  	
   

  	
  Integration

  	
  206

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.15

  	
   

  	
  GOVERNING    LAW

  	
  206

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.16

  	
   

  	
  Submission    to Jurisdiction; Waivers

  	
  206

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.17

  	
   

  	
  Acknowledgments

  	
  206

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.18

  	
   

  	
  WAIVERS OF    JURY TRIAL

  	
  207

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.19

  	
   

  	
  Confidentiality

  	
  207

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    10.20

  	
   

  	
  Judgment    Currency

  	
  208

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE    XI          GUARANTEE BY    KIMCO

  	
  209

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.1

  	
   

  	
  Guarantee

  	
  209

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.2

  	
   

  	
  Guaranteed    Obligations Not Waived

  	
  209

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.3

  	
   

  	
  Guarantee of    Payment

  	
  209

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.4

  	
   

  	
  No Discharge    or Diminishment of Guarantee

  	
  210

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.5

  	
   

  	
  Defenses    Waived; Maturity of Guaranteed Obligations

  	
  210

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.6

  	
   

  	
  Agreement to    Pay; Subordination

  	
  211

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.7

  	
   

  	
  Reinstatement

  	
  211

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.8

  	
   

  	
  Information

  	
  212

  
	
   

  	
   

  	
   

  	
   

  
	
            SECTION    11.9

  	
   

  	
  Payments

  	
  212

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  --

  	
       Form    of Assignment and Assumption

  	
   

  
	
  Exhibit B-1

  	
  --

  	
       Form    of Revolving Credit Note

  	
   

  
	
  Exhibit C-1

  	
  --

  	
       Form    of Subsidiary Guarantee

  	
   

  
	
  Exhibit C-2

  	
  --

  	
       Form    of Subsidiary Joinder

  	
   

  
	
  Exhibit D

  	
  --

  	
       Form    of Opinion of Loan Party Counsel

  	
   

  
	
  Exhibit E-1

  	
  --

  	
       Form    of Closing Certificate of Borrowers

  	
   

  
	
  Exhibit E-2

  	
  --

  	
       Form    of Closing Certificate of Kimco

  	
   

  
	
  Exhibit F

  	
  --

  	
       Form    of Compliance Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule    1.1A

  	
  --

  	
       Lenders    and Commitments as of Effective Date

  	
   

  
	
  Schedule    1.1B

  	
  --

  	
       FFO    Definition Variations

  	
   

  



 


123








 


	
  Schedule 4.1

  	
  --

  	
       Certain    Financial Disclosure

  	
   

  
	
  Schedule 4.2

  	
  --

  	
       Transaction(s)    Referred to in Section 4.2

  	
   

  
	
  Schedule    4.19

  	
  --

  	
       Condemnation    Proceedings

  	
   

  
	
  Schedule 7.2

  	
  --

  	
       Transaction(s)    Referred to in Section 7.2

  	
   

  
	
  Schedule    10.10

  	
  --

  	
       Subsidiary    Guarantors

  	
   

  



 


124








 


                    SECOND  AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 25, 2006, among  KIMCO NORTH TRUST I, a New York trust (“Trust I”), KIMCO NORTH TRUST II,  a New York trust (“Trust II”), KIMCO NORTH TRUST III, a New York trust  (“Trust III”), KIMCO NORTH LOAN TRUST IV, a New York trust (“Trust IV”),  KIMCO NORTH TRUST V, a New York trust (“Trust V”), KIMCO NORTH TRUST VI,  a New York trust (“Trust VI”), the other entities from time to time  parties to this Agreement as borrowers hereunder (together with Trust I, Trust  II, Trust III, Trust IV, Trust V and Trust VI, collectively, the “Borrowers”),  the several banks, financial institutions and other entities from time to time  parties to this Agreement (collectively,
the “Lenders”), the Issuing  Lender party hereto, THE BANK OF NOVA SCOTIA and CANADIAN IMPERIAL BANK OF  COMMERCE, as Syndication Agents (in such capacity, collectively, the “Syndication  Agents”), BANK OF AMERICA, N.A., as Documentation Agent (in such capacity,  the “Documentation Agent”), ROYAL BANK OF CANADA, as Administrative  Agent for the Lenders hereunder (in such capacity, the “Administrative Agent”),  and KIMCO REALTY CORPORATION, a Maryland corporation (“Kimco”), as a  guarantor under Article XI, and for the limited purposes set forth in Sections  2.15, 2.16, 5.1, 9.1(c), 9.1(d), 9.1(f), 10.1, 10.2, 10.6, 10.7, 10.10,  10.11(b), 10.12, 10.13, 10.14, 10.15, 10.16, 10.17, 10.18, 10.19 and 10.20,  Articles IV, VI and VII and the last two paragraphs of Article VIII, of this  Agreement.


 


                    PRELIMINARY  STATEMENTS:


 


                    (1)     Unless  otherwise defined in these Preliminary Statements, all capitalized terms used  in these Preliminary Statements and defined above or in Section 1.1 of this  Agreement, are used herein as so defined.


 


                    (2)     The  parties hereto entered into the Credit Agreement, dated as of  September 21, 2004, among the Borrowers, the Lenders, the Issuing Lender,  The Bank of Nova Scotia and Bank of America, N.A., as Syndication Agents  thereunder, Canadian Imperial Bank of Commerce, as Documentation Agent  thereunder, the Administrative Agent and Kimco (the “2004 Credit Agreement”).


 


                    (3)     The  parties hereto entered into the Amended and Restated Credit Agreement, dated as  of March 31, 2005 (the 2004 Credit Agreement, as amended by such Amended  and Restated Credit Agreement, the “Original Credit Agreement”).


 


                    (4)     The  Lenders have made Loans under (and as such term is defined in) the Original  Credit Agreement (the “Existing Loans”), and the Borrowers have issued  Revolving Credit Notes under (and as such term is defined in) the Original  Credit Agreement (the “Existing Notes”) to evidence the Existing Loans.


 


                    (5)     The  Borrowers have requested, and the Lenders have agreed, to make certain  amendments and modifications to the Original Credit Agreement, including  pursuant to the second paragraph of Section 10.1 of the Original Credit  Agreement.


 


                    (6)     Each  Lender (or its Core Affiliate) is also a Core Lender.


 


125








 


                    (7)     The  parties hereto desire to evidence the amendments and modifications referred to  above by amending and restating the Original Credit Agreement.  


 


                    NOW,  THEREFORE, the parties hereto agree that the Original Credit Agreement shall,  as of the Effective Date, be amended and restated in its entirety as follows:


 


ARTICLE I


 


DEFINITIONS


 


                    SECTION  1.1     Defined Terms.


 


                              As  used in this Agreement, the following terms shall have the following meanings:


 


                              “ABR”:  for any day, a rate per annum (rounded upwards, if necessary, to the next  1/100th of 1%) equal to the greater of (a) the Prime Rate in effect on such  day, and (b) the Federal Funds Effective Rate in effect on such day plus  1/2 of 1%.  For purposes hereof: “Prime  Rate” shall mean (i) with respect to a Schedule I Lender, the rate of  interest per annum publicly announced from time to time by RBC as its prime  commercial lending rate for Dollar loans in the U.S., and (ii) with respect to  any Lender that is not a Schedule I Lender, the rate of interest per annum  publicly announced from time to time by RBC as its prime commercial lending  rate for Dollar loans in Canada, each change in the Prime Rate being effective  from and
including the date such change is publicly announced as being  effective (the Prime Rate not being intended to be the lowest rate of interest  charged by RBC in connection with extensions of credit to debtors); and “Federal  Funds Effective Rate” shall mean, for any day, the weighted average of the  rates on overnight federal funds transactions with members of the Federal  Reserve System arranged by federal funds brokers, as published on the next  succeeding Business Day by the Federal Reserve Bank of New York (rounded  upward, if necessary, to the next 1/100th of 1%), or, if such rate is not so  published for any day which is a Business Day, the average of the quotations  for the day of such transactions received by the Administrative Agent from  three federal funds brokers of recognized standing selected by it.  If for any reason the Administrative Agent  shall have determined (which determination shall be conclusive absent manifest  error) that it is unable to ascertain the
Federal Funds Effective Rate for any  reason, including the inability or failure of the Administrative Agent to  obtain sufficient quotations in accordance with the terms thereof, the ABR  shall be determined without regard to clause (b) of the first sentence of this  definition, as appropriate, until the circumstances giving rise to such  inability no longer exist.  Any change  in the ABR due to a change in the Prime Rate or the Federal Funds Effective  Rate shall be effective as of the opening of business on the effective day of  such change in the Prime Rate or the Federal Funds Effective Rate,  respectively.


 


                              “ABR  Loans”: Revolving Credit Loans the rate of interest applicable to which is  based upon the ABR.


 


                              “Acceptable  Jurisdiction”: a jurisdiction (other than the United States) acceptable to  the Administrative Agent in its sole discretion, including, if requested by the  Administrative


 


126








 


Agent in its sole discretion,  based on satisfactory advice received by it from local counsel in such  jurisdiction with respect to the procedure for enforcement of a U.S. judgment  in such jurisdiction, and the collection of such judgment from assets located  there.


 


                              “Adjusted  Net Income”: for any period, as to Kimco and the Consolidated Entities,  Consolidated Net Income; provided that there shall be excluded the  income (or deficit) of any Person other than Kimco accrued prior to the date it  becomes a Subsidiary or is merged into or consolidated with Kimco or any of its  Subsidiaries.


 


                              “Administrative  Agent”: as defined in the introductory paragraph hereof.


 


                              “Administrative  Questionnaire”: as defined in Section 10.6.


 


                              “Affiliate”:  as to any Person, any other Person which, directly or indirectly, is in Control  of, is Controlled by, or is under common control with, such Person.  


 


                              “Aggregate  Outstanding Revolving Extensions of Credit”: as to any Lender at any time,  an amount equal to the sum of (a) the aggregate Cdn Dollar Amount of all  Revolving Credit Loans made by such Lender then outstanding and (b) such  Lender’s Commitment Percentage of the Cdn Dollar Amount of the L/C Obligations  then outstanding.


 


                              “Agreement”:  this Second Amended and Restated Credit Agreement.


 


                              “Alternate  Issuing Lender”: as defined in Section 3.9(b)


 


                              “Applicable  Margin”: with respect to each Revolving Credit Loan at any date, the  applicable percentage per annum set forth below based upon the Status on such  date:


 


	
   

  	
   

  	
  Level I
    Status

  	
   

  	
  Level II
    Status

  	
   

  	
  Level III
    Status

  	
   

  	
  Level IV
    Status

  	
   

  	
  Level V
    Status

  	
   

  	
  Level VI
    Status

  	
   

  
	
   

  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  
	
  Eurodollar    Loans, CDOR Loans and Money Market Loans

  	
   

  	
   

  	
  0.40

  	
  %

  	
   

  	
  0.45

  	
  %

  	
   

  	
  0.55

  	
  %

  	
   

  	
  0.65

  	
  %

  	
   

  	
  0.85

  	
  %

  	
   

  	
  1.15

  	
  %

  
	
  ABR Loans    and Cdn Prime Loans

  	
   

  	
   

  	
  0

  	
  %

  	
   

  	
  0

  	
  %

  	
   

  	
  0

  	
  %

  	
   

  	
  0

  	
  %

  	
   

  	
  0

  	
  %

  	
   

  	
  0.40

  	
  %

  



 


                              “Application”:  an application, in such form as the Issuing Lender may specify from time to  time, requesting the Issuing Lender to issue a Letter of Credit.


 


                              “Assignment  and Assumption”: as defined in Section 10.6.


 


                              “Available  Commitment”: as to any Lender, at any time of determination, an amount  equal to such Lender’s Commitment at such time minus such Lender’s  Aggregate Outstanding Revolving Extensions of Credit at such time.


 


127








 


                              “Baseline  Conditions”: as to any Wholly Owned Subsidiary, in connection with the  incurrence by such Subsidiary of any obligations in respect of the Revolving  Credit Facility, that such Subsidiary (a) at the time of determination can  truthfully make each of the Baseline Representations and Warranties in all  material respects and (b) if such Subsidiary is not organized under the laws of  any state of the United States, (x) shall be organized under the laws of an  Acceptable Jurisdiction or (y) shall have submitted for itself and its property  in any legal action or proceeding relating to this Agreement and the other Loan  Documents to which it is a party, including for recognition and enforcement of  any judgment in respect thereof, to the non-exclusive general
jurisdiction of  the courts of the State of New York, the courts of the United States of America  for the Southern District of New York, and appellate courts from any thereof.


 


                              “Baseline  Representations and Warranties”: as defined in the first paragraph of  Article IV.


 


                              “Board”:  the Board of Governors of the Federal Reserve System of the United States of  America (or any successor).


 


                              “Borrower”:  as defined in the introductory paragraph hereof and such other Person who may  become a substitute, replacement or additional Borrower hereunder.


 


                              “Borrowing  Date”: any Business Day specified in a notice pursuant to Section 2.2(d) as  a date on which any Borrower requests the Lenders to make Revolving Credit  Loans hereunder.


 


                              “Business  Day”: a day other than a Saturday, Sunday or other day on which commercial  banks in Toronto, Canada, or New York City are authorized or required by law to  close, except that, when used in connection with a Eurodollar Loan, the term “Business  Day” shall also exclude any day on which banks are not open for dealings in  Dollar deposits in the London interbank market.


 


                              “Canadian  Institution”: a banking institution organized under the laws of Canada and  having a U.S. Office through which such institution will fund the Loans it  makes hereunder.


 


                              “Canadian  Office”: with respect to any Person, a branch or other entity owned by such  Person which branch or entity is located in Canada and is an “authorized  foreign bank” under the Income Tax Act (Canada).


 


                              “Capital  Stock”: any and all shares, interests, participations or other equivalents  (however designated) of capital stock of a corporation, any and all equivalent  ownership interests in a Person (other than a corporation) and any and all  warrants or options to purchase any of the foregoing.


 


                              “Cash  Equivalents”: (i) securities denominated in Dollars or any other currency  of any Qualified Jurisdiction (any of the foregoing, “Currency”), in any  event issued or directly and fully guaranteed or insured by the United States  Government or any other Qualified Jurisdiction, as applicable, or any agency or  instrumentality of any of them, having maturities of not more than one year  from the date of acquisition, (ii) time deposits and certificates of deposit  denominated in Currency having maturities of not more than one year from the  date of


 


128








 


acquisition of any Lender or of  any domestic commercial bank the senior long-term unsecured debt of which is  rated at least A or the equivalent thereof by S&P or A2 or the equivalent  thereof by Moody’s and having capital and surplus in excess of $500,000,000 (or  the equivalent in the applicable Currency), (iii) repurchase obligations with a  term of not more than seven days for underlying securities of the types  described in clauses (i) and (ii) entered into with any bank meeting the  qualifications specified in clause (ii) above, (iv) commercial paper  denominated in Currency rated at least A-1 or the equivalent thereof by S&P  or P-1 or the equivalent thereof by Moody’s and in either case maturing within  90 days after the date of acquisition and (v) investments in money market funds  that have assets in excess of $2,000,000,000 (or the equivalent in the  applicable Currency), are managed by recognized and responsible institutions
and invest all of their assets in (x) obligations of the types referred to in  clauses (i), (ii), (iii) and (iv) above and (y) commercial paper denominated in  Currency having at least the rating described in clause (iv) above and maturing  within 270 days after the date of acquisition.


 


                              “Cdn  Dollar Amount”:  at any time:


 


                                        (i)     with  respect to any Cdn Dollar-Denominated Loan, the principal amount thereof then  outstanding;


 


                                        (ii)     with  respect to any Dollar-Denominated Loan, the principal amount thereof then  outstanding in Dollars, converted to Cdn Dollars at the spot rate at which  Dollars are offered for sale against Cdn Dollars as shown on Reuters page FX,  WRLD at the relevant Rate Fixing Time; 


 


                                        (iii)     with  respect to any L/C Obligations that are denominated in Cdn Dollars, the amount  thereof then outstanding; 


 


                                        (iv)     with  respect to any L/C Obligations that are denominated in Dollars, the amount  thereof then outstanding in Dollars, converted to Cdn Dollars at the spot rate  at which such Dollars are offered for sale against Cdn Dollars as shown on  Reuters page FX, WRLD at the relevant Rate Fixing Time; and


 


                                        (v)     with  respect to any other amount due in Dollars under any Loan Document, the amount  thereof then due in Dollars, converted to Cdn Dollars at the spot rate at which  Dollars are offered for sale against Cdn Dollars as shown on Reuters page FX,  WRLD at the relevant Rate Fixing Time.


 


As used in this definition, “Rate  Fixing Time” means (i) if a Cdn Dollar Amount is being determined in  connection with an extension of credit hereunder, prepayment or other action  requiring advance notice from any Borrower to the Administrative Agent  hereunder, a time determined by the Administrative Agent within a reasonable  time after it receives such notice, but in any event, either on the day or on  the day prior to the day, on which the relevant action is to be taken or for  which the relevant amount is to be determined, as the case may be, and (ii) if  a Cdn Dollar Amount is being determined in any other connection, a time  determined pursuant to the applicable provision of this Agreement, if any, or  by the Administrative Agent on the day on which the relevant action is to be  taken or for which the relevant amount is to be determined, as the case may be.


 


129








 


                              “Cdn  Dollar-Denominated Loan”:  a Loan  that is made as (or converted into) a Cdn Prime Loan or a CDOR Loan in  accordance with a Borrower’s applicable notice of borrowing or notice of  conversion, as the case may be, given with respect thereto.


 


                              “Cdn  Dollars” and the symbol “C$”:   lawful currency of Canada.


 


                              “Cdn  Prime Loans”:  Revolving Credit  Loans the rate of interest applicable to which is based upon the Cdn Prime  Rate.


 


                              “Cdn  Prime Rate”:  on any day, the  greater of:  (a) the per annum rate of  interest announced from time to time by RBC as its reference rate then in  effect for determining interest rates on C$ denominated commercial loans in  Canada and (b) the per annum rate of interest equal to the sum of (i) the  one-month CDOR Rate in effect on such day and (ii) 0.50% per annum.


 


                              “CDOR  Loans”:  Revolving Credit Loans the  rate of interest applicable to which is based upon the CDOR Rate.


 


                              “CDOR  Rate”:  on any day, the per annum  rate of interest (as reasonably determined by the Administrative Agent in a  manner and amount identical to the Administrative Agent’s determination of such  rate of interest with respect to similarly situated loans and borrowers) which  is (i) with respect to any Schedule I Lender, the rate based on an average rate  applicable to C$ bankers’ acceptances for a term equivalent to the term of the  relevant requested Interest Period appearing on the “Reuters Screen CDOR Page”  (as defined in the International Swap Dealer Association, Inc. definitions, as  modified and amended from time to time) as of 10:00 A.M., Toronto time, on such  date, or if such date is not a Business Day, then on the immediately
preceding  Business Day; provided, however, that if such rates are not  available (and for any Interest Period of less than one (1) month), the CDOR  Rate for any day shall be calculated as the discount rate quoted by RBC for its  own bankers’ acceptances for the applicable period as of 10:00 A.M. Toronto  time on such day, or if said day is not a Business Day, then on the immediately  preceding Business Day and (ii) with respect to any Lender that is not a  Schedule I Lender, the rate which is the arithmetic average of the most  favorable actual discount rates applicable to bankers’ acceptances quoted by  the Reference Banks to the Administrative Agent for the applicable period as of  10:00 A.M. Toronto time on such day, or if said day is not a Business Day, then  on the immediately preceding Business Day, but not exceeding the CDOR Rate as  determined pursuant to clause (i) above plus 0.05% per annum.  For purposes of this definition, the “Reference
Banks” shall be JPMorgan Chase Bank, N.A., Toronto Branch, and Bank of  America, N.A., Canadian Branch.


 


                              “CDOR  Tranche”: the collective reference to CDOR Loans the then current Interest  Periods with respect to all of which begin on the same date and end on the same  later date (whether or not such Loans shall originally have been made on the  same day).


 


                              “Change  in Control”: (a) the acquisition of ownership, directly or indirectly,  beneficially or of record, by any Person or group (within the meaning of the  Securities Exchange Act of 1934, as amended, and the rules of the Securities  and Exchange Commission thereunder as in effect on the date hereof) of Capital  Stock representing more than 35% of the aggregate


 


130








 


ordinary voting power  represented by the issued and outstanding Capital Stock of Kimco; (b)  occupation of a majority of the seats (other than vacant seats) on the board of  directors of Kimco by Persons who were neither (i) nominated by the board of  directors of Kimco nor (ii) appointed by directors so nominated; or (c) the  acquisition of direct or indirect Control of Kimco by any Person or group.


 


                              “Code”:  the Internal Revenue Code of 1986, as amended from time to time.


 


                              “Commitment”:  as to any Lender, the obligation of such Lender (if any) to make Revolving  Credit Loans to and/or issue or participate in Letters of Credit issued on  behalf of a Borrower hereunder in an aggregate principal and/or face amount at  any one time outstanding not to exceed the amount set forth opposite such  Lender’s name on Schedule 1.1A, as such amount may be changed from time to time  in accordance with the provisions of this Agreement.  The aggregate amount of the Lenders’ Commitments as of the  Effective Date is C$250,000,000.


 


                              “Commitment  Percentage”: as to any Lender at any time, the percentage which such  Lender’s Commitment then constitutes of the aggregate Commitments of all  Lenders (or, at any time after the Commitments shall have expired or  terminated, the percentage which the aggregate principal amount of such  Lender’s Revolving Credit Loans then outstanding and participations in respect  of Letters of Credit constitutes of the aggregate principal amount of the  Revolving Credit Loans of all Lenders then outstanding and all participations  in respect of all Letters of Credit (for purposes of this definition, treating  the Issuing Lender as if it were a L/C Participant)).


 


                              “Commitment  Period”: the period from and including March 31, 2005 to but not  including the Termination Date.


 


                              “Commonly  Controlled Entity”: an entity, whether or not incorporated, which is under  common control with Kimco within the meaning of Section 4001 of ERISA or is  part of a group which includes Kimco and which is treated as a single employer  under Section 414 of the Code.


 


                              “Confidential  Memorandum”: the Confidential Information Memorandum, dated June, 2005,  with respect to Kimco and the revolving credit facility under the Core US  Credit Agreement.


 


                              “Consolidated  Entities”: as of any date of determination, any entities whose financial  results are consolidated with those of Kimco in accordance with GAAP.


 


                              “Consolidated  Net Income”: for any period, net income (or loss) of Kimco and the  Consolidated Entities for such period determined on a consolidated basis in  accordance with GAAP.


 


                              “Contractual  Obligation”: as to any Person, any provision of any security issued by such  Person or of any agreement, instrument or other undertaking to which such  Person is a party or by which it or any of its property is bound.


 


131








 


                              “Control”:  the possession, directly or indirectly, of the power to direct or cause the  direction of the management or policies of a Person, whether through the  ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”  have meanings correlative thereto.


 


                              “Core  Affiliate”: as defined in the second paragraph of Section 10.1


 


                              “Core  Lenders”: as defined in the definition of the term “Core US Credit  Agreement.”


 


                              “Core  US Credit Agreement”: the Amended and Restated Credit Agreement dated as of  July 26, 2005 among Kimco, the Subsidiaries of Kimco from time to time  parties thereto, the several banks, financial institutions and other entities  from time to time parties thereto (collectively, the “Core Lenders”),  the Issuing Lender party thereto, Wachovia Bank, National Association and The  Bank of Nova Scotia, New York Agency, as Syndication Agents, UBS Loan Finance  LLC and Wells Fargo Bank National Association, as Documentation Agents, the  Managing Agents parties thereto, the Co-Agents parties thereto, and JPMorgan  Chase Bank, N.A., as administrative agent for the Core Lenders thereunder  (including any credit, loan or similar agreement that at any
time, succeeds to  or replaces, substitutes, refunds, renews or refinances any of the Indebtedness  thereunder and thereby becomes Kimco’s core corporate credit facility).


 


                              “Currency”:  as defined in the definition of the term “Cash Equivalents”.


 


                              “Default”:  any of the events specified in Article VIII, whether or not any requirement for  the giving of notice, the lapse of time, or both, or any other condition, has  been satisfied.


 


                              “Designated  Event of Default”:  any Event of  Default specified in any of paragraphs (a), (f), (h), (i) or (l) of Article  VIII or clauses (i) or (ii) of paragraph (e) of Article VIII.


 


                              “Documentation  Agent”:  as defined in the  introductory paragraph hereof.


 


                              “Dollar-Denominated  Loan”:  a Loan that is made as (or  converted into) a Eurodollar Loan, an ABR Loan or a Money Market Loan in  accordance with a Borrower’s applicable notice of borrowing or notice of  conversion, as the case may be, given with respect thereto.


 


                              “Dollar  Equivalent”: on any date of determination, (a) with respect to any amount  in Dollars, such amount, and (b) with respect to any amount in a Currency other  than Dollars, the equivalent in Dollars of such amount, as reasonably  determined by Kimco.


 


                              “Dollars”  and the symbol “$”:  lawful  currency of the United States of America.


 


                              “EBITDA”:  for any Person, the consolidated net income of such Person and its Subsidiaries  before income taxes, interest, depreciation, amortization, gains or losses on  sales of operating real estate and marketable securities, any provisional  benefit for income taxes, noncash


 


132








 


impairment charges, and gains  or losses on extraordinary items in accordance with GAAP and gains or losses on  early extinguishment of debt.


 


                              “Effective  Date”: the date on which the conditions set forth in Section 5.1 shall be  satisfied (or waived in accordance with Section 10.1).


 


                              “Eligible  Assignee”: a Canadian Institution or a U.S. Institution.


 


                              “Environmental  Laws”: any and all foreign, Federal, state, local or municipal laws, rules,  orders, regulations, statutes, ordinances, codes, decrees, requirements of any  Governmental Authority or other Requirements of Law (including common law)  regulating, relating to or imposing liability or standards of conduct  concerning protection of human health or the environment, as now or may at any  time hereafter be in effect, in each case to the extent the foregoing are  applicable to Kimco, any Entity or any of their respective assets or  properties.


 


                              “Entity”:  as of any date of determination, any Consolidated Entity or Unconsolidated  Entity.


 


                              “ERISA”:  the Employee Retirement Income Security Act of 1974, as amended from time to  time.


 


                              “Eurodollar  Loans”: Revolving Credit Loans, the rate of interest applicable to which is  based upon the Eurodollar Rate.


 


                              “Eurodollar  Rate”: with respect to any Eurodollar Loan for any Interest Period, the  rate appearing on Page 3750 of the Dow Jones Market Service (or on any  successor or substitute page of such Service, or any successor to or substitute  for such Service, providing rate quotations comparable to those currently  provided on such page of such Service, as determined by the Administrative  Agent from time to time for purposes of providing quotations of interest rates  applicable to Dollar deposits in the London interbank market) at approximately  11:00 a.m., London time, two Business Days prior to the commencement of such  Interest Period, as the rate for Dollar deposits with a maturity comparable to  such Interest Period.  In the event that  such rate is not
available at such time for any reason, then the “Eurodollar  Rate” with respect to such Eurodollar Loan for such Interest Period shall  be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable  to such Interest Period are offered by the principal London office of the bank  serving as Administrative Agent in immediately available funds in the London  interbank market at approximately 11:00 a.m., London time, two Business Days  prior to the commencement of such Interest Period.


 


                              “Eurodollar  Tranche”: the collective reference to Eurodollar Loans the then current  Interest Periods with respect to all of which begin on the same date and end on  the same later date (whether or not such Loans shall originally have been made  on the same day).


 


                              “Event  of Default”: any of the events specified in Article VIII, provided  that any requirement for the giving of notice, the lapse of time, or both, or any  other condition, has been satisfied.


 


                              “Existing  Loans”: as defined in Preliminary Statement (3) hereto.


 


133








 


                              “Existing  Notes”: as defined in Preliminary Statement (3) hereto.


 


                              “Extended  Maturity Date”:  as defined in  Section 10.9.


 


                              “Facility  Fee Rate”: the applicable percentage per annum set forth below based upon  the Status on the date of the relevant facility fee payment:


 


	
  Level I
    Status

  	
   

  	
  Level II
    Status

  	
   

  	
  Level III
    Status

  	
   

  	
  Level IV
    Status

  	
   

  	
  Level V
    Status

  	
   

  	
  Level VI
    Status

  	
   

  
	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  
	
  0.125%

  	
   

  	
   

  	
  0.125

  	
  %

  	
   

  	
  0.15

  	
  %

  	
   

  	
  0.20

  	
  %

  	
   

  	
  0.25

  	
  %

  	
   

  	
  0.25

  	
  %

  
																	



 


                              “Federal  Funds Effective Rate”: as defined in the definition of the term “ABR”.


 


                              “Fee  Letters”: the three letters dated June 16, 2004, February 22, 2005 and  September 23, 2005, respectively, among Kimco and RBC regarding certain fees  payable in connection with the Revolving Credit Facility.


 


                              “FFO”:  funds from operations, as calculated based upon the NAREIT definition in effect  on the date of said calculation or in a manner consistent with Kimco’s prior  reporting (with any variation from the NAREIT definition being specified in  Schedule 1.1B).


 


                              “Final  Date”: as defined in Section 2.11(d).


 


                              “Financing  Lease”: any lease of property, real or personal, the obligations of the  lessee in respect of which are required in accordance with GAAP to be  capitalized on a balance sheet of such lessee.


 


                              “GAAP”:  generally accepted accounting principles in the United States of America.


 


                              “Governmental  Authority”: any nation or government, any state or other political  subdivision thereof and any entity exercising executive, legislative, judicial,  regulatory or administrative functions of or pertaining to government.


 


                              “Gross  Asset Value”: as of any relevant date, an amount equal to the sum, without  duplication, of (a) Total Adjusted EBITDA, calculated with respect to the most  recent Test Period ended on or before such date annualized and capitalized at  8.25%, plus (b) Unrestricted Cash and Cash Equivalents of Kimco and the  Consolidated Entities as of such date, plus (c) the sum of the following  items of Kimco and the Consolidated Entities: (i) land and development projects  as of such date valued at “cost”, (ii) mezzanine and mortgage loan receivables  valued at the lower of cost or market at such date and marketable securities at  the value reflected in the consolidated financial statements of Kimco as of  such date, plus (d) Kimco’s
investments in and advances to the  Noncontrolled Entities valued at the lower of cost or market at such date, provided  that the items described in clauses (c) and (d) shall not be taken into account  to the extent that the amounts thereof exceed, in the aggregate, 35% of Gross  Asset Value, plus (e) 100% of the bona fide purchase price of Identified  Properties as of such date, and provided, further, that not more  than 25% in the aggregate of items comprising Gross Asset Value shall be


 


134








 


attributable to assets located  outside of the United States or to assets owned by Entities not organized in  and having principal offices in the United States.


 


                              “Guarantee  Obligation”: as to any Person (the “guaranteeing person”), any  obligation (determined without duplication) of (a) the guaranteeing person or  (b) another Person (including any bank under any letter of credit) to induce  the creation of which the guaranteeing person has issued a reimbursement,  counter-indemnity or similar obligation, in either case guaranteeing or in  effect guaranteeing any Indebtedness, leases, dividends or other obligations  (the “primary obligations”) of any other third Person (the “primary  obligor”) in any manner, whether directly or indirectly, including any  obligation of the guaranteeing person, whether or not contingent, (i) to  purchase any such primary obligation or any
property constituting direct or  indirect security therefor, (ii) to advance or supply funds (1) for the  purchase or payment of any such primary obligation or (2) to maintain working  capital or equity capital of the primary obligor or otherwise to maintain the  net worth or solvency of the primary obligor, (iii) to purchase property,  securities or services primarily for the purpose of assuring the owner of any  such primary obligation of the ability of the primary obligor to make payment  of such primary obligation or (iv) otherwise to assure or hold harmless the  owner of any such primary obligation against loss in respect thereof; provided  that the term Guarantee Obligation shall not include endorsements of  instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation of  any guaranteeing person shall be deemed to be the maximum stated amount of the  primary obligation relating to such Guarantee Obligation (or, if less, the
maximum stated liability set forth in the instrument embodying such Guarantee  Obligation); provided that in all events (and regardless of the  existence of a stated liability amount), the amount of such Guarantee  Obligation shall be such guaranteeing person’s maximum reasonably anticipated  liability in respect thereof as determined by Kimco in good faith.


 


                              “Guarantor”:  at any particular time, (a) Kimco and/or (b) each Subsidiary that is  a party to a Subsidiary Guarantee at such time.


 


                              “Identified  Property”: as of any time, Properties acquired during the most recent Test  Period. 


 


                              “Income  REIT”: Kimco Income Operating Partnership, L.P., a Delaware limited partnership.


 


                              “Indebtedness”:  of any Person at any date, without duplication, (a) all indebtedness of such  Person for borrowed money, (b) all obligations of such Person for the deferred  purchase price of property or services (other than current trade liabilities  incurred in the ordinary course of business and payable in accordance with  customary practices), to the extent such obligations constitute indebtedness  for the purposes of GAAP, (c) any other indebtedness of such Person which is  evidenced by a note, bond, debenture or similar instrument, (d) all obligations  of such Person under Financing Leases, (e) all obligations of such Person in  respect of acceptances issued or created for the account of such Person, (f)  all Guarantee Obligations of such Person, (g)
reimbursement obligations for  letters of credit and other contingent liabilities,  (h) all liabilities secured by any Lien on any property owned by  such Person even though such Person has not assumed or otherwise become liable  for the payment thereof, and (i) the net


 


135








 


obligations (contingent or  otherwise) of such Person at such date under interest rate hedging agreements.


 


                              “Insolvency”:  with respect to any Multiemployer Plan, the condition that such Plan is  insolvent within the meaning of Section 4245 of ERISA.


 


                              “Insolvent”:  pertaining to a condition of Insolvency.


 


                              “Intellectual  Property”: as defined in Section 4.9.


 


                              “Interest  Payment Date”: (a) as to any ABR Loan or Cdn Prime Loan, the last day of  each calendar month to occur while such ABR Loan or Cdn Prime Loan is  outstanding and the Termination Date, (b) as to any Eurodollar Loan or CDOR  Loan, the last day of the Interest Period with respect thereto and, in the case  of a Eurodollar Loan or CDOR Loan with an Interest Period of more than three  (3) months’ duration, each day prior to the last day of such Interest Period  that occurs at intervals of three (3) months’ duration after the first day of  such Interest Period, and (c) as to any Money Market Loan, the Money Market  Loan Maturity Date applicable thereto.


 


                              “Interest  Period”:  with respect to any  Eurodollar Loan or CDOR Loan:


 


                                        (i)     initially,  the period commencing on the borrowing or conversion date, as the case may be,  with respect to such Eurodollar Loan or CDOR Loan, as the case may be, and  ending one (1), two (2), three (3) or six (6) months (or, with respect to a  CDOR Loan, seven (7) days, or such other period less than one (1) month but  greater than seven (7) days acceptable to the Administrative Agent in its sole  discretion) thereafter, as selected by a Borrower in its notice of borrowing or  notice of conversion, as the case may be, given with respect thereto; and


 


                                        (ii)     thereafter,  each period commencing on the last day of the next preceding Interest Period  applicable to such Eurodollar Loan or CDOR Loan, as the case may be, and ending  one (1), two (2), three (3) or six (6) months (or, with respect to a CDOR Loan,  such period less than one (1) month in accordance with clause (i) above)  thereafter, as selected by a Borrower by irrevocable notice to the  Administrative Agent not less than three Business Days prior to the last day of  the then current Interest Period with respect thereto;


 


provided  that all of the foregoing provisions relating to Interest Periods are subject  to the following:


 


                    (1)     if  any Interest Period pertaining to a Eurodollar Loan or CDOR Loan would  otherwise end on a day that is not a Business Day, such Interest Period shall  be extended to the next succeeding Business Day unless the result of such  extension would be to carry such Interest Period into another calendar month in  which event such Interest Period shall end on the immediately preceding  Business Day; 


 


                    (2)     any  Interest Period pertaining to a Eurodollar Loan or CDOR Loan that begins on the  last Business Day of a calendar month (or on a day for which there is no  numerically


 


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corresponding day in the  calendar month at the end of such Interest Period) shall end on the last  Business Day of a calendar month; and


 


                    (3)     in  no event shall any Interest Period end on a day subsequent to the Termination  Date.


 


                              “Investment  Entity”: as to any Person, a corporation, limited liability company,  partnership or other entity in which Kimco has a direct or indirect interest,  but which is not a Subsidiary.


 


                              “ISP”:  the International Standby Practices (1998), International Chamber of Commerce  Publication No. 590, and, if acceptable to the Issuing Lender in its sole  discretion, as the same may be amended or revised from time to time.


 


                              “Issuing  Lender”: RBC, in its capacity as issuer of any Letter of Credit, and any  Alternate Issuing Lender appointed pursuant to Section 3.9(b).  The Issuing Lender may, in its discretion,  arrange for one or more Letters of Credit to be issued by Affiliates of the  Issuing Lender, in which case the term “Issuing Lender” shall include any such  Affiliate with respect to Letters of Credit issued by such Affiliate.


 


                              “Kimco”:  as defined in the introductory paragraph hereof.


 


                              “L/C  Commitment”: C$30,000,000 (which is included in, and is not additional to,  the aggregate amount of the Lenders’ Commitments).


 


                              “L/C  Fee Payment Date”: with respect to each Letter of Credit, the last Business  Day of each March, June, September and December to occur while such Letter of  Credit is outstanding.


 


                              “L/C  Fee Rate”: with respect to each Letter of Credit at any date, the  applicable percentage per annum set forth below based upon the Status on such  date:


 


	
  Level I
    Status

  	
   

  	
  Level II
    Status

  	
   

  	
  Level III
    Status

  	
   

  	
  Level IV
    Status

  	
   

  	
  Level V
    Status

  	
   

  	
  Level VI
    Status

  	
   

  
	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  	
  



  	
   

  
	
  0.40%

  	
   

  	
   

  	
  0.45

  	
  %

  	
   

  	
  0.55

  	
  %

  	
   

  	
  0.65

  	
  %

  	
   

  	
  0.85

  	
  %

  	
   

  	
  1.15

  	
  %

  
																	



 


                              “L/C  Obligations”: at any time, an amount equal to the sum of (a) the aggregate  then undrawn and unexpired amount of the then outstanding Letters of Credit and  (b) the aggregate amount of drawings under Letters of Credit which have not  then been reimbursed pursuant to Section 3.5(a).


 


                              “L/C  Participants”: the collective reference to all the Lenders other than the  Issuing Lender.


 


                              “Lender  Party”: each of the Administrative Agent, the Issuing Lender and the  Lenders.


 


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                              “Lenders”:  as defined in the introductory paragraph hereof.


 


                              “Letters  of Credit”: as defined in Section 3.1(a).


 


                              “Lien”:  any mortgage, pledge, hypothecation, assignment (including any collateral  assignment but excluding any assignment of an asset made in lieu of a sale  thereof where the assignor is paid the fair market value of such asset by the  assignee and the assignee assumes all of the rights and obligations  attributable to ownership of such asset), deposit arrangement, encumbrance,  lien (statutory or other), charge or other security interest or any preference,  priority or other security agreement or preferential arrangement of any kind or  nature whatsoever (including any conditional sale or other title retention  agreement and any Financing Lease having substantially the same economic effect  as any of the foregoing).


 


                              “Loan”:  each loan made by the Lenders to any Borrower pursuant to this Agreement or the  Original Credit Agreement.


 


                              “Loan  Documents”: this Agreement, any Note, any Application, any Subsidiary  Guarantee, any Subsidiary Joinder and the Fee Letters, and any instrument or  agreement waiving, amending, or supplementing any Loan Document.


 


                              “Loan  Parties”: as of any applicable date of determination, (a) Kimco,  (b) each applicable Borrower and (c) each applicable Subsidiary  Guarantor.


 


                              “Majority  Lenders”: at any date, the holders of at least 51% of the sum of the  aggregate unpaid principal amount of the Revolving Credit Loans and the L/C  Obligations; provided that if such sum is zero, then the Majority  Lenders shall be the holders of at least 51% of the sum of the aggregate  Commitments.


 


                              “Material  Adverse Effect”: a material adverse effect on (a) the business, operations,  property, condition (financial or otherwise) or prospects of Kimco and its  Subsidiaries taken as a whole, (b) the ability of Kimco to perform its  obligations under the Loan Documents or (c) the validity or enforceability of  this Agreement or any of the other Loan Documents or the rights or remedies of  the Administrative Agent or the Lenders hereunder or thereunder.


 


                              “Materials  of Environmental Concern”: any gasoline or petroleum (including crude oil  or any fraction thereof) or petroleum products or any hazardous or toxic  substances, materials or wastes, defined or regulated as such in or under any  Environmental Law, including asbestos, polychlorinated biphenyls and  urea-formaldehyde insulation.


 


                              “Maturity  Date”: (i) March 31, 2008, or (ii) if the term of the Revolving Credit  Facility is extended pursuant to Section 10.9, the Extended Maturity Date; provided  that references hereunder to the Maturity Date shall be to the Maturity Date  specified in clause (i) unless and until extended in accordance with said  Section 10.9.


 


                              “Money  Market Loan Maturity Date”: with respect to any Money Market Loan, the  maturity date requested by the applicable Borrower in connection therewith  (which date shall


 


138








 


in no event be later than the  earlier of (a) 29 days after the Borrowing Date thereof or (b) the Termination  Date).


 


                              “Money  Market Loans”: Revolving Credit Loans the rate of interest applicable to  which is based upon the Money Market Rate.


 


                              “Money  Market Rate”: with respect to any proposed Money Market Loan, the quoted  rate per annum obtained by the Administrative Agent with respect thereto, and  accepted by each Lender, in its sole discretion, no later than 10:00 A.M., New  York City time, on the requested Borrowing Date.


 


                              “Money  Market Tranche”: the collective reference to Money Market Loans having the  same Borrowing Date and Money Market Loan Maturity Date.


 


                              “Moody’s”:  Moody’s Investors Service, Inc.


 


                              “Multiemployer  Plan”: a Plan which is a multiemployer plan as defined in Section  4001(a)(3) of ERISA.


 


                              “NAREIT”:  The National Association of Real Estate Investment Trusts.


 


                              “Net  Worth”: at any date of determination, an amount equal to (a) Gross Asset  Value as of such date minus (b) Total Indebtedness as of such date.


 


                              “Noncontrolled  Entity”: any of the following Unconsolidated Entities: (i) the Income  REIT, Kimco Retail Opportunity Portfolio, LLC, or  “Rio Can/Canadian Ventures”, (ii) any entity in which the  only investment by Kimco or any Affiliate thereof consists of preferred stock  or securities of another entity having characteristics analogous to those of  preferred stock, or (iii) any entity as to which Kimco (together with its  Affiliates) does not have the power to direct the acquisition, financing,  disposition and other major decisions regarding property owned by such entity.


 


                              “Non-Excluded  Taxes”: as defined in Section 2.12(a).


 


                              “Non-Recourse  Indebtedness”: Indebtedness the documentation with respect to which  expressly provides that (a) the lender(s) thereunder (and any agent for such  lender(s)) may not seek a money judgment against the Person issuing such  Indebtedness or (b) recourse for payment in respect of such Indebtedness is  limited to those assets or Capital Stock of the Person issuing such  Indebtedness which secure such Indebtedness (except in the case of customary  indemnities or customary potential recourse carve-outs contained in such  documentation, provided that if a claim is made in connection with such  indemnities or potential recourse carve-outs, such claim shall not constitute  Non-Recourse Indebtedness for the purposes of this Agreement); provided that,
notwithstanding the foregoing, any Indebtedness which would otherwise  constitute Recourse Indebtedness (or which would not constitute Non-Recourse  Indebtedness hereunder), shall be included as Non-Recourse Indebtedness for all  purposes hereunder if and to the extent such Indebtedness is not recourse (either  contractually or by operation of law) to Kimco (except in the case of customary  indemnities or customary potential recourse carve-outs contained in the  applicable documentation, provided that if a claim is made 


 


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in connection with such  indemnities or potential recourse carve-outs, such claim shall not constitute  Non-Recourse Indebtedness for the purposes of this Agreement).


 


                              “Non-U.S.  Lender”: as defined in Section 2.12(b).


 


                              “Notes”:  the collective reference to all the Revolving Credit Notes.


 


                              “Obligated  Property Owner”: as defined in the definition of the term “Unencumbered  Properties”.


 


                              “Obligations”:  with respect to any Borrower, all obligations, liabilities and Indebtedness of  every nature of such Borrower from time to time owing to any Lender, the  Issuing Lender, or the Administrative Agent, under or in connection with this  Agreement or any other Loan Document, in each case whether primary, secondary,  direct, indirect, contingent, fixed or otherwise, including all fees and  disbursements of counsel to the Administrative Agent, the Issuing Lender or the  Lenders that are required to be paid by any Borrower pursuant to the terms of  this Agreement or any other Loan Document and including interest accruing at  the rate provided in the applicable Loan Document, whether pre-judgment or  post-judgment, and whether on or after the commencement of
any bankruptcy or  insolvency proceeding, whether or not allowed or allowable.


 


                              “Original  Credit Agreement”: as defined in Preliminary Statement (3) hereto.


 


                              “Ownership  Percentage”: (i) in respect of a Wholly Owned Subsidiary, 100%, and (ii) in  respect of (A) any other Consolidated Entity (other than a Wholly-Owned  Subsidiary) or (B) an Unconsolidated Entity, Kimco’s direct and indirect  percentage interest in such entity determined in accordance with GAAP.


 


                              “Participant”:  as defined in Section 10.6.


 


                              “PBGC”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of  Title IV of ERISA.


 


                              “Permitted  Encumbrances”: (a) Liens imposed by law for taxes (x) that are  not yet due and delinquent, or (y) where (A) the validity or amount  thereof is being contested in good faith by appropriate proceedings,  (B) the Person responsible for such taxes is Kimco or a Wholly Owned Subsidiary  and has set aside on its books adequate reserves with respect thereto in  accordance with GAAP, and (C) the failure to make payment pending such  contest could not reasonably be expected to have a Material Adverse Effect,  (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and  other like Liens imposed by law, arising in the ordinary course of business and  securing obligations that are not overdue
by more than 30 days, except  where (i) the validity or amount thereof is being contested in good faith  by appropriate proceedings, (ii) the Person responsible for the charges so  secured is Kimco or a Wholly Owned Subsidiary and has set aside on its books  adequate reserves with respect thereto in accordance with GAAP and  (iii) the failure to make payment pending such contest could not  reasonably be expected to have a Material Adverse Effect, (c) pledges and  deposits made in the ordinary course of business in compliance with workers’  compensation, unemployment insurance and other social security laws or regulations,  (d) deposits to secure the performance of bids, trade


 


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contracts, leases, statutory  obligations, surety and appeal bonds, performance bonds and other obligations  of a like nature, in each case in the ordinary course of business, and  (e) easements, zoning restrictions, rights-of-way and similar encumbrances  on real property imposed by law or arising in the ordinary course of business  that do not secure any monetary obligations and do not materially detract from  the value of the affected property or interfere with the ordinary conduct of  business of Kimco or of any Wholly Owned Subsidiary that has any direct or  indirect interest in any Unencumbered Property; provided that the term  “Permitted Encumbrances” shall not include any Lien securing Indebtedness.


 


                              “Person”:  an individual, partnership, limited liability company, corporation, business  trust, joint stock company, trust, unincorporated association, joint venture,  Governmental Authority or other entity of whatever nature.


 


                              “Plan”:  at a particular time, any employee benefit plan which is covered by ERISA and  in respect of which Kimco or a Commonly Controlled Entity is (or, if such plan  were terminated at such time, would under Section 4069 of ERISA be deemed to  be) an “employer” as defined in Section 3(5) of ERISA.


 


                              “Prime  Rate”: as defined in the definition of the term “ABR”.


 


                              “Property”:  real property owned by Kimco or any of the Entities, or in which Kimco, any of  the Consolidated Entities or any of the Unconsolidated Entities has a leasehold  interest.


 


                              “Property  Gross Revenues”: with respect to any Property, for any period, all gross  income, revenues and consideration, of whatever form or nature, received by or  paid to or for the account or benefit of the Person owning such Property, in  each instance during such period, in connection with the ownership, operation,  leasing and occupancy of such Property, including the following: (a) amounts  received under leases, including base rent, escalation, overage, additional,  participation, percentage and similar rentals, late charges and interest  payments and amounts received on account of maintenance or service charges,  real estate taxes, assessments, utilities, air conditioning and heating,  insurance premiums and other administrative, management, operating,
leasing and  maintenance expenses for such property, but excluding until earned security  deposits, prepaid rents and other refundable receipts, (b) rents and receipts  from licenses, concessions, vending machines and similar items, (c) parking  fees and rentals, (d) other fees, charges or payments not denominated as rental  of office, retail, storage, parking or other space in such Property, and (e)  payments received as consideration, in whole or in part, for the cancellation,  modification, extension or renewal of leases; but in any event excluding the  proceeds of any financing or asset sales in respect of all or any portion of  such Property.


 


                              “Property  NOI”: with respect to any Property, for any period, an amount equal to the  excess, if any, of (a) Property Gross Revenues in respect of such Property for  such period over (b) Property Operating Expenses in respect of such  Property for such period.


 


                              “Property  Operating Expenses”: with respect to any Property, for any period, the sum  of all expenses incurred during such period with respect to the ownership,  operation, leasing and occupancy of such Property including the following: (a)  real estate taxes; (b) special


 


141








 


assessments or similar charges  paid during such period; (c) personal property taxes; (d) costs of utilities,  air conditioning and heating; (e) maintenance and repair costs of a non-capital  nature; (f) operating expenses and fees; (g) wages and salaries of on-site  employees engaged in the operation and management of such Property, including  employer’s social security taxes and other taxes, insurance benefits and the  like, levied on or with respect to such wages or salaries; (h) premiums payable  for insurance carried on or with respect to such Property; (i) advertising and  promotion costs; (j) rental expense; and (k) in the case of any Property owned or  operated by an Investment Entity, any obligation of Kimco or any of its  Subsidiaries (contingent or otherwise) to contribute funds to such Investment  Entity. The following shall be excluded from Property Operating Expenses: (1)  foreign, U.S., state and local income taxes, franchise taxes or
other taxes  based on income, (2) depreciation, amortization and any other non-cash  deduction for income tax purposes, (3) interest expenses of the Person owning  such Property, (4) property management fees payable to Kimco or its Affiliates,  and (5) any expenditures made for capital improvements and the cost of leasing  commissions.


 


                              “Qualified  Jurisdiction”: at any time of determination, any jurisdiction in which  Kimco or any of its Subsidiaries is doing business at such time the government  of which jurisdiction is internationally recognized at such time, including by  the United States Government.


 


                              “Rating  Agencies”: the collective reference to S&P and Moody’s.


 


                              “RBC”:  Royal Bank of Canada.


 


                              “Recourse  Indebtedness”: any Indebtedness of any Person, (A) to the extent that  Kimco is liable for direct claims for payment of such debt, or (B) to the  extent that the payment of such debt is guaranteed by Kimco or that Kimco  otherwise stands as a surety or accommodation party for such debt, or  (C) as to which a Lien securing such debt has been placed against any  assets of Kimco (excluding from this clause (C) Non-Recourse Indebtedness of  Kimco).  (Any such Indebtedness shall  not be treated as Recourse Indebtedness solely because of customary potential  recourse carveouts contained in documentation, provided that if a claim  is made in connection with such potential recourse carve-outs, such claim shall  constitute Recourse
Indebtedness for the purposes of this Agreement).


 


                              “Register”:  as defined in Section 10.6.


 


                              “Regulation  U”: Regulation U of the Board as in effect from time to time.


 


                              “Reimbursement  Obligation”: the obligation of any Borrower to reimburse the Issuing Lender  pursuant to Section 3.5(a) for amounts drawn under Letters of Credit.


 


                              “Reorganization”:  with respect to any Multiemployer Plan, the condition that such plan is in  reorganization within the meaning of Section 4241 of ERISA.


 


                              “Reportable  Event”: any of the events set forth in Section 4043(b) of ERISA, other than  those events as to which the thirty day notice period is waived under Sections  .13, .14, .16, .18, .19 or .20 of PBGC Reg. § 2615.


 


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                              “Required  Lenders”: at any time, the holders of at least 66-2/3% of the aggregate  Commitments, or, if the Commitments have been terminated, of the aggregate  unpaid principal amount of the Revolving Credit Loans and L/C Obligations.


 


                              “Requirement  of Law”: as to any Person, the Certificate of Incorporation and By-Laws or  other organizational or governing documents of such Person, and any law,  treaty, rule or regulation or determination of an arbitrator or a court or  other Governmental Authority, in each case applicable to or binding upon such  Person or any of its property or to which such Person or any of its property is  subject.


 


                              “Responsible  Officer”: with respect to any Person, the chief executive officer and the  president of such Person or, with respect to financial matters, the chief  financial officer or the treasurer of such Person.


 


                              “Revolving  Credit Facility”: the revolving credit facility established pursuant to  this Agreement.


 


                              “Revolving  Credit Loans”: as defined in Section 2.2(a)(i).


 


                              “Revolving  Credit Note”: as defined in Section 2.2(b).


 


                              “S&P”:  Standard & Poor’s Ratings Services.


 


                              “Schedule  I Lender”: any Lender whose name appears in Schedule I to the Bank Act  (Canada).


 


                              “Single  Employer Plan”: any Plan which is covered by Title IV of ERISA, but which  is not a Multiemployer Plan.


 


                              “Solvent”:  as to any Person, that, as of any date of determination, (a) the amount of  the present fair saleable value of the assets of such Person will, as of such  date, exceed the amount of all liabilities of such Person, contingent or  otherwise, as of such date, as determined in accordance with applicable U.S.  federal and state laws (or analogous applicable foreign laws) governing  determinations of the insolvency of debtors, (b) the present fair saleable  value of the assets of such Person will, as of such date, be greater than the  amount that will be required to pay the liability of such Person on its  existing or anticipated debts as such debts become absolute and matured, and  (c) such Person will not have as of such date, an unreasonably
small  amount of capital with which to conduct its business.


 


                              “Status”:  as to Kimco, the existence of Level I Status, Level II Status, Level III  Status, Level IV Status, Level V Status or Level VI Status, as the case may be.


 


                              As  used in this definition:


 


                                        “Level  I Status” exists at any date if, at such date, Kimco has a long-term senior  unsecured debt rating of A or better by S&P and A2 or better by Moody’s;


 


143








 


                                        “Level  II Status” exists at any date if, at such date, Level I Status does not  exist and Kimco has a long-term senior unsecured debt rating of A- or better by  S&P and A3 or better by Moody’s;


 


                                        “Level  III Status” exists at any date if, at such date, neither Level I Status nor  Level II Status exists and Kimco has a long-term senior unsecured debt rating  of BBB+ or better by S&P and Baa1 or better by Moody’s;


 


                                        “Level  IV Status” exists at any date if, at such date, neither Level I Status,  Level II Status nor Level III Status exists and Kimco has a long-term senior  unsecured debt rating of BBB or better by S&P and Baa2 or better by  Moody’s; 


 


                                        “Level  V Status” exists at any date if, at such date, neither Level I Status,  Level II Status, Level III Status nor Level IV Status exists and Kimco has a  long-term senior unsecured debt rating of BBB- or better by S&P and Baa3 or  better by Moody’s; and 


 


                                        “Level  VI Status” exists at any date if, at such date, none of Level I Status,  Level II Status, Level III Status, Level IV Status or Level V Status exists; 


 


provided  that (i) in the event of a “split” rating, the Applicable Margin, Facility Fee  Rate, and L/C Fee Rate shall be based upon the higher of the two ratings, (ii)  Kimco may, at its option, obtain a debt rating from a third  nationally-recognized rating agency, in which case the Applicable Margin,  Facility Fee Rate, and L/C Fee Rate shall be based on the lower of the two  highest ratings, at least one of which must be Moody’s or S&P, and (iii) if  S&P and/or Moody’s shall cease to issue ratings of debt securities of real  estate investment trusts generally, then the Administrative Agent and the  Borrowers shall negotiate in good faith to agree upon a substitute rating  agency or agencies (and to correlate the system of ratings of such substitute  rating agency with that of the rating agency for which it is substituting) and  (a) until such substitute rating agency or agencies are agreed upon, Status  shall be
determined on the basis of the rating assigned by the other rating  agency (or, if both S&P and Moody’s shall have so ceased to issue such  ratings, on the basis of the Status in effect immediately prior thereto) and  (b) after such substitute rating agency or agencies are agreed upon, Status  shall be determined on the basis of the rating assigned by the other rating  agency and such substitute rating agency or the two substitute rating agencies,  as the case may be.


 


                              “Subsidiary”:  as to any Person, a corporation, limited liability company, partnership or  other entity of which shares of stock or other ownership interests having  ordinary voting power (other than stock or such other ownership interests  having such power only by reason of the happening of a contingency) to elect a  majority of the board of directors or other managers of such corporation,  limited liability company, partnership or other entity are at the time owned,  or the management of which is otherwise controlled, directly or indirectly  through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references  to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a  direct or indirect
Subsidiary or Subsidiaries of Kimco.


 


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                              “Subsidiary  Guarantee”: each guarantee, substantially in the form of Exhibit C-1,  executed and delivered by a Subsidiary Guarantor, in accordance with the terms  of this Agreement.


 


                              “Subsidiary  Guarantor”: as defined in Section 10.10(a).


 


                              “Subsidiary  Joinder”: as defined in Section 2.16(a)(i). 


 


                              “Swap  Agreement”: any agreement with respect to any swap, forward, future or  derivative transaction or option or similar agreement involving, or settled by  reference to, one or more rates, currencies, commodities, equity or debt  instruments or securities, or economic, financial or pricing indices or  measures of economic, financial or pricing risk or value or any similar  transaction or any combination of these transactions; provided that no  phantom stock or similar plan providing for payments only on account of services  provided by current or former directors, officers, employees or consultants of  Kimco or any Affiliate thereof shall be a Swap Agreement.  


 


                              “Syndication  Agents”:  as defined in the  introductory paragraph hereof.


 


                              “Termination  Date”: the date that is the earliest to occur of (a) the Maturity Date,  (b)  the date on which the Commitments hereunder shall be terminated or  otherwise permanently reduced to zero pursuant to this Agreement, or (c) the  date on which the Loans shall become due and payable hereunder by acceleration.


 


                              “Test  Period”: a period of two (2) consecutive fiscal quarters of Kimco.


 


                              “Total  Adjusted EBITDA”: for any Test Period, Total EBITDA for such period minus  (without duplication) (i) replacement reserves of $0.25 per square foot of  gross leasable area per annum, pro-rated for the applicable period, (ii)  non-cash revenue for such period attributable to straight-lining of rents,  (iii) EBITDA for such period attributable to Noncontrolled Entities, (iv)  income for such period from mezzanine and mortgage loan receivables, (v)  dividend and interest income from marketable securities, (vi) EBITDA for such  period attributable to Identified Properties, and (vii) Kimco’s and its  Affiliates’ management fee income and other income (excluding all items  referred to in any other clause of this definition) for such period not
attributable to Properties, provided that the items referred to in this clause  (vii) shall be taken into account only to the extent that the amounts of such  items, in the aggregate, exceed 10% of Total EBITDA.


 


                              “Total  Debt Service”: in respect of any Test Period, interest expense plus  scheduled principal debt amortization for Kimco and the Consolidated Entities  on the aggregate principal amount of their respective Indebtedness (provided  that (i) there shall be excluded optional prepayments and balloon payments due  at maturity, and (ii) in the case of any Indebtedness that amortizes in annual  installments, there shall be included in the aggregate 50% of the amount of  such annual installments payable during such Test Period and 50% of the amount  of such annual installments payable during the two immediately succeeding  fiscal quarters), plus preferred stock dividends paid during such Test  Period.


 


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                              “Total  EBITDA”: for any period, Adjusted Net Income of Kimco and the Consolidated  Entities before income taxes, interest, depreciation, amortization, gains or  losses on sales of operating real estate and marketable securities, any  provision or benefit for income taxes, noncash impairment charges, and gains or  losses on extraordinary items in accordance with GAAP and gains or losses on  early extinguishment of debt, plus, without duplication, EBITDA of  Unconsolidated Entities.


 


                              “Total  Indebtedness”: as of any date of determination, all Indebtedness of Kimco,  of its Wholly Owned Subsidiaries and any other Consolidated Entities,  outstanding at such date.


 


                              “Total  Recourse Indebtedness”: as of any date of determination, the aggregate  principal amount of all Indebtedness of Kimco and of the Consolidated Entities  outstanding at such date (excluding Non-Recourse Indebtedness and Indebtedness  that is contractually subordinated to the indebtedness of Kimco and its  Affiliates under the Loan Documents).


 


                              “Total  Secured Indebtedness”: as of any date of determination, the aggregate of  (i) Indebtedness of Kimco or of any of the Consolidated Entities outstanding as  of such date, secured by any asset of Kimco or the Consolidated Entities, and  (ii) all unsecured third party Indebtedness of the Consolidated Entities to  Persons other than Kimco or any Consolidated Entity outstanding as of such  date.


 


                              “Total  Unsecured Interest Expense”: actual interest expense (accrued, paid, or  capitalized) on all unsecured debt of Kimco and of the Consolidated Entities.


 


                              “Tranche”:  any CDOR Tranche, Eurodollar Tranche or Money Market Tranche.


 


                              “Transferee”:  as defined in Section 10.7.


 


                              “Type”:  as to any Revolving Credit Loan, its nature as an ABR Loan, a Cdn Prime Loan, a  CDOR Loan, a Eurodollar Loan or a Money Market Loan.


 


                              “Unconsolidated  Entity”: as of any date of determination, a corporation, partnership,  limited liability company, trust, joint venture, or other business entity in  which Kimco, directly or indirectly through ownership of one or more  intermediary entities, owns an equity interest but that is not required in  accordance with GAAP to be consolidated with Kimco for financial reporting  purposes.


 


                              “unencumbered”:  with respect to any asset, as of any date of determination, the circumstance  that such asset on such date (a) is not subject to any Liens or claims  (including restrictions on transferability or assignability) of any kind  (excluding Permitted Encumbrances), (b) is not subject to any agreement  (including (i) any agreement governing Indebtedness incurred in order to  finance or refinance the acquisition of such asset and (ii) if applicable, the  organizational documents of any Entity) which prohibits or limits the ability  of Kimco or any of the Entities to create, incur, assume or suffer to exist any  Lien upon, or convey, sell, lease, transfer or otherwise dispose of, any assets  or Capital Stock of Kimco or any of the Entities (excluding any
agreement which  limits generally the amount of secured Indebtedness which may be incurred by  Kimco and the Entities) and (c) is not subject to any agreement (including any  agreement governing Indebtedness incurred in order to finance or refinance the  acquisition of


 


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such asset) which entitles any  Person to the benefit of any Lien (other than Permitted Encumbrances) on any  assets or Capital Stock of Kimco or any of the Entities, or would entitle any  Person to the benefit of any Lien (other than Permitted Encumbrances) on such  assets or Capital Stock upon the occurrence of any contingency (other than  pursuant to an “equal and ratable” clause contained in any agreement governing  Indebtedness).


 


                              “Unencumbered  Asset Value”: as of any date of determination, an amount calculated with  respect to the most recent Test Period ended on or before such date, equal to  the sum of (a) the Value of Unencumbered Properties as of such date plus  (b) the sum of (i) unencumbered mezzanine and mortgage loan receivables (valued  at the lower of cost or market as of such date), (ii) unencumbered marketable  securities (at the value reflected in the consolidated financial statements of  Kimco as of such date), provided that the items described in this clause  (ii) and in the preceding clause (i) shall not be taken into account to the  extent that the amounts of such items exceed, in the aggregate, 15% of  Unencumbered Asset Value, and (iii) unencumbered land and
development projects  (valued at the lower of cost or market as of such date), provided that  the amount described in this clause (iii) shall not be taken into account to  the extent that it exceeds 10% of Unencumbered Asset Value, plus (c) Unrestricted  Cash and Cash Equivalents of Kimco and the Consolidated Entities as of the last  day of such period (which items shall be taken into account only to the extent  that the amounts thereof, in the aggregate, exceed $15,000,000), and provided,  further, that (i) not more than 15% in the aggregate of items comprising  Unencumbered Asset Value shall be attributable to assets located outside of the  United States or to assets owned by Entities not organized in and having  principal offices in the United States, and (ii) assets located in or owned by  Entities organized in any place other than the United States or an Acceptable  Jurisdiction shall not be included to any extent.


 


                              “Unencumbered  Assets NOI”: for any period, Unencumbered Property NOI plus, to the  extent not in excess of 10% of Unencumbered Assets NOI, the sum of dividend and  interest income from unencumbered marketable securities and unencumbered  mezzanine and mortgage loan receivables.


 


                              “Unencumbered  Properties”: (i) Properties wholly owned by Kimco or by a Wholly Owned  Subsidiary (or in  which Kimco or a  Wholly Owned Subsidiary has a leasehold interest to the extent eligible  pursuant to clause (b) of the second sentence of the definition of the term  “Unencumbered Property NOI”), as to which Kimco has control, which Properties  are unencumbered (including freedom from restrictions, whether on the Property  itself or the entity holding such Property, on pledging such Property or the  stock, limited liability company interests, partnership interests, or other  ownership interests of any Person having an ownership interest in such Property  as collateral or selling such Property), and (ii) other unencumbered Properties  as to which
Kimco or a Wholly Owned Subsidiary owns (directly or through the  ownership of an interest in a Consolidated Entity) a majority of the equity  interests or has a leasehold interest, as above, and has the power to direct  acquisition, disposition, financing, and other major property decisions (which  shall not include Properties owned by or through Noncontrolled Entities); provided  that no such Property shall be treated as an Unencumbered Property at any time  during which any Person (other than Kimco) having any direct or indirect ownership  interest in such Property (a “Property Owner”) has any Indebtedness or  has any obligation or liability, whether primary, secondary, direct, indirect,  fixed, contingent, or otherwise (including as a guarantor or other surety or  accommodation party, as the general


 


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partner of a partnership that  has Recourse Indebtedness, under applicable law, or otherwise) in respect of  any Indebtedness (an “Obligated Property Owner”), unless at such time  each such Obligated Property Owner is a Wholly Owned Subsidiary of Kimco and a  Subsidiary Guarantor pursuant to an effective Subsidiary Guarantee. 


 


                              “Unencumbered  Property NOI”: for any period, Property NOI for such period of Unencumbered  Properties owned by Kimco or a Wholly Owned Subsidiary and the percentage equal  to Kimco’s Ownership Percentage interest in the applicable Property of Property  NOI for such period of other Unencumbered Properties, in each case net of (i)  management fees of 3% of revenues and (ii) replacement reserves of $0.25 per  square foot per annum (pro-rated for the applicable Test Period) of gross  leasable area, from Unencumbered Properties.   For the purpose of determining Unencumbered Property NOI, (a) no  property owned by any Noncontrolled Entity shall be included, and (b) leasehold  positions will be eligible if (i) with respect to the lease term, either (x)  more
than 25 years remains in such lease term or (y) such lease term is  renewable in the sole discretion of Kimco for one or more successive periods  aggregating (together with the remaining current lease term) more than 25 years  so long as, in the case of this clause (y), periodic rent increases shall be at  levels comparable to those that are customarily applicable to leases having  initial terms in excess of 25 years, (ii) such leasehold position is  mortgageable and the terms of the lease include customary secured lender  protections (including that (A) the lessor shall notify any holder of a  security interest in such leasehold interest of the occurrence of any default  by the lessee under such lease and shall afford such holder the right to cure  such default, and (B) in the event that such lease is terminated, such holder  shall have the option to enter into a new lease having terms substantially  identical to those contained in the terminated lease), and (iii)the  Unencumbered Property NOI in
respect of such leasehold positions included in  any calculation of Value of Unencumbered Properties for any Test Period shall  not be taken into account to the extent that it exceeds, in the aggregate, 20%  of Unencumbered Property NOI for such Test Period.


 


                              “Uniform  Customs”: the Uniform Customs and Practice for Documentary Credits (1993  Revision), International Chamber of Commerce Publication No. 500, and if  acceptable to the Issuing Lender in its sole discretion, as the same may be  amended or revised from time to time.


 


                              “United  States”: means the United States of America, including the States and the  District of Columbia, but excluding its territories and possessions.


 


                              “Unrestricted  Cash and Cash Equivalents”: as of any date of determination, the sum of (a)  the Dollar Equivalent of the aggregate amount of Unrestricted cash then held by  Kimco or any of the Consolidated Entities and (b) the Dollar Equivalent of the  aggregate amount of Unrestricted Cash Equivalents (valued at the lower of cost  and fair market value) then held by Kimco or any of the Consolidated Entities.  As used in this definition, “Unrestricted”  means, with respect to any asset, the circumstance that such asset is not  subject to any Liens or claims of any kind in favor of any Person.


 


                              “Unsecured  Debt”: all Indebtedness which is not secured by a Lien on any income,  Capital Stock, property or asset.


 


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                              “U.S.”:  United States of America.


 


                              “U.S.  Institution”: a banking institution organized under the laws of the U.S. or  a state thereof and having a Canadian Office through which such institution  will enter into this Agreement and will fund the Loans it makes hereunder,  which Loans are held as part of such institution’s Canadian banking business.


 


                              “U.S.  Office”:  with respect to any  Person, such Person’s (or its affiliate’s) office located in the U.S.


 


                              “Value  of Unencumbered Properties”: for any period, an amount equal to  Unencumbered Property NOI for such period (less Unencumbered Property  NOI of Unencumbered Properties that are Identified Properties) with respect to  the most recent Test Period annualized and capitalized at 8.25% (provided  that such annualized and capitalized Unencumbered Property NOI in respect  of  Unencumbered Properties not wholly  owned by Kimco or a Wholly Owned Subsidiary shall not be taken into account to  the extent that it exceeds, in the aggregate, 20% of the total Value of  Unencumbered Properties), plus 100% of the bona fide purchase price of  such Unencumbered Properties that are Identified Properties.


 


                              “Wholly  Owned Subsidiary”: any entity all of the capital stock of which and any and  all equivalent ownership interests of which (other than directors’ qualifying  shares required by law) are owned by Kimco directly or indirectly through one  or more Wholly Owned Subsidiaries.


 


                    SECTION  1.2     Other Definitional Provisions;  Interpretation.


 


                              (a)     Unless  otherwise specified therein, all terms defined in this Agreement shall have the  defined meanings when used in any other Loan Document or any certificate or  other document made or delivered pursuant hereto or thereto.


 


                              (b)     Without  limiting Section 1.3, as used herein and in any other Loan Document, and any  certificate or other document made or delivered pursuant hereto or thereto,  accounting terms relating to Kimco and its Subsidiaries not defined in Section  1.1 and accounting terms partly defined in Section 1.1, to the extent not  defined, shall have the respective meanings given to them under GAAP.


 


                              (c)     The  words “hereof”, “herein” and “hereunder” and words of similar import when used  in this Agreement shall refer to this Agreement as a whole and not to any  particular provision of this Agreement, and Article, Section, Schedule and  Exhibit references are to this Agreement unless otherwise specified.


 


                              (d)     The  meanings given to terms defined herein shall be equally applicable to both the  singular and plural forms of such terms.


 


                              (e)     Whenever  the context may require, any pronoun shall include the corresponding masculine,  feminine and neuter forms.   


 


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                              (f)     The  words “include”, “includes” and “including” shall be deemed to be followed by  the phrase “without limitation”.


 


                              (g)     The  word “will” shall be construed to have the same meaning and effect as the word  “shall”.


 


                              (h)     Unless  the context requires otherwise (i) any definition of or reference to any  agreement, instrument or other document herein shall be construed as referring  to such agreement, instrument or other document as from time to time amended,  supplemented or otherwise modified (subject to any restrictions on such  amendments, supplements or modifications set forth herein), (ii) any reference  herein to any Person shall be construed to include such Person’s successors and  assigns, and (iii) the words “asset” and “property” shall be construed to have  the same meaning and effect and to refer to any and all tangible and intangible  assets and properties, including cash, securities, accounts and contract rights.


 


                    SECTION  1.3     Accounting Terms; GAAP.


 


                              Except  as otherwise expressly provided herein, all terms of an accounting or financial  nature shall be construed in accordance with GAAP, as in effect from time to  time; provided that, if Kimco notifies the Administrative Agent that Kimco  requests an amendment to any provision hereof to eliminate the effect of any  change occurring after the date hereof in GAAP or in the application thereof on  the operation of such provision (or if the Administrative Agent notifies Kimco  that the Required Lenders request an amendment to any provision hereof for such  purpose), regardless of whether any such notice is given before or after such  change in GAAP or in the application thereof, then such provision shall be  interpreted on the basis of GAAP as in effect and applied immediately
before  such change shall have become effective until such notice shall have been  withdrawn or such provision  amended in  accordance herewith.


 


ARTICLE II


 


THE LOANS


 


                    SECTION  2.1     Several Borrowers and Loans.  In accordance with and subject to the  remaining terms of this Article II, each Borrower shall have the right, from  time to time and at any time to request one or more Revolving Credit Loans (as  defined below), which Loan(s) shall be (i) advanced by the Lenders for the  account of the applicable Borrower and (ii) the several obligation of such  Borrower and not the joint and several obligations of the other Borrowers.


 


                    SECTION  2.2     Loans; Etc.


 


                              (a)     Commitments.


 


                                        (i)     Subject  to the terms and conditions hereof, each Lender severally agrees to make  revolving credit loans (together with the Existing Loans, “Revolving Credit  Loans”) to the Borrowers from time to time during the Commitment Period in  an aggregate principal amount at any one time outstanding which, when added to  such Lender’s Commitment Percentage of the then outstanding L/C Obligations,  does not exceed the amount of such Lender’s Commitment.  During the Commitment Period the Borrowers  may use the


 


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Commitments by borrowing,  prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all  in accordance with the terms and conditions hereof.  Notwithstanding anything to the contrary contained in this  Agreement, in no event shall, at the time of the making of any extension of  credit hereunder, the sum of the Aggregate Outstanding Revolving Extensions of  Credit of all of the Lenders exceed the aggregate Commitments then in  effect.


 


                                        (ii)     Each  Revolving Credit Loan shall be made to the applicable Borrower as part of a  borrowing consisting of Revolving Credit Loans made by the Lenders ratably in  accordance with their respective Commitments.   The failure of any Lender to make any Loan required to be made by it  shall not relieve any other Lender of its obligations hereunder; provided  that the Commitments of the Lenders are several and no Lender shall be  responsible for any other Lender’s failure to make Loans as required.


 


                                        (iii)     Subject  to Section 2.8 and Section 2.10, the Revolving Credit Loans may from time to  time be Eurodollar Loans, ABR Loans, Cdn Prime Loans, CDOR Loans or Money  Market Loans or a combination thereof, as determined by the applicable Borrower  and notified to the Administrative Agent in accordance with Sections 2.2(d) and  2.4, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan  or CDOR Loan after the day that is one (1) month prior to the Termination  Date.  Cdn Prime Loans and CDOR Loans  shall be made in Cdn Dollars.  All other  Loans shall be made in Dollars.


 


                              (b)     Notes.  The Revolving Credit Loans made by a Lender  to a Borrower shall be evidenced by an Existing Note or a promissory note  executed and delivered by such Borrower at the request of such Lender,  substantially in the form of Exhibit B-1, with appropriate insertions as to the  applicable Borrower, payee and date (each a “Revolving Credit Note”),  payable to the order of such Lender and in a principal amount equal to the  aggregate unpaid principal amount of all Revolving Credit Loans made by such  Lender.  Each Lender is hereby  authorized to record, as applicable, the name of the relevant Borrower, the  date, Type, currency and amount of each Revolving Credit Loan made by such  Lender, each continuation thereof,
each conversion of all or a portion thereof  to another Type, the date and amount of each payment or prepayment of principal  thereof and, in the case of CDOR Loans and Eurodollar Loans, the length of each  Interest Period with respect thereto and, in the case of Money Market Loans,  the Money Market Loan Maturity Date with respect thereto, on the schedule  annexed to and constituting a part of its Revolving Credit Note or in the  accounts or records maintained by such Lender in the ordinary course of its  business, and any such recordation shall constitute prima facie  evidence of the accuracy of the information so recorded; provided that  the failure by any Lender to make any such recordation or any error in such  recordation shall not affect the obligations of the Borrowers under this  Agreement or the Notes.  


 


                              (c)     Repayment  of Loans.  Each Borrower shall repay  (in the relevant currency) all of its then outstanding Revolving Credit Loans  on the Termination Date (or, if earlier, the applicable Money Market Loan  Maturity Date in respect of a Money Market Loan) to the Administrative Agent  for the account of each Lender.


 


                              (d)     Procedure  for Borrowing Revolving Credit Loans.   The Borrowers may borrow Revolving Credit Loans during the Commitment  Period on any Business Day, provided that the applicable Borrower shall  give the Administrative Agent irrevocable notice (which


 


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notice must be received by the  Administrative Agent prior to 10:00 A.M., Toronto time, (i) three (3) Business  Days prior to the requested Borrowing Date, if all or any part of the requested  Revolving Credit Loans are to be initially Eurodollar Loans, (ii) two (2)  Business Days prior to the requested Borrowing Date, if all or any part of the  requested Revolving Credit Loans are to be initially Money Market Loans or CDOR  Loans, or (iii) one (1) Business Day prior to the requested Borrowing Date,  otherwise), specifying (w) the name of the relevant Borrower (if such notice is  given by Kimco on behalf of a Borrower pursuant to Section 2.16) and the amount  to be borrowed, (x) the requested Borrowing Date and, in the case of each Money  Market Loan, the requested Money Market Loan Maturity Date, (y) whether the  borrowing is to be of Eurodollar Loans, ABR Loans, Cdn Prime Loans, CDOR Loans,  Money Market Loans or a combination thereof and (z) if the
borrowing is to be  entirely or partly of Eurodollar Loans or CDOR Loans the respective amounts of  each such Type of Revolving Credit Loan and the respective lengths of the  initial Interest Periods therefor.  Each  borrowing under the Commitments shall be in a principal amount equal to (i) in  the case of ABR Loans or Cdn Prime Loans, $500,000 or C$500,000 (as the case  may be) or a whole multiple of $100,000 or C$100,000 (as the case may be) in  excess thereof (or, if the then aggregate Available Commitments are less than  C$500,000, such lesser Cdn Dollar Amount) and (ii) in the case of Eurodollar  Loans, CDOR Loans or Money Market Loans, $2,000,000 or C$2,000,000 (as the case  may be) or a whole multiple of $100,000 or C$100,000 (as the case may be) in  excess thereof, in each case subject to Section 2.2(e).  Upon receipt of any such notice from a  Borrower, the Administrative Agent shall promptly notify each Lender thereof  and of the proposed Money Market Rate (if applicable). 
Each Lender will notify the Administrative  Agent within one (1) Business Day prior to the requested Borrowing Date for any  Money Market Loan as to whether or not such Lender is willing to accept the  proposed Money Market Rate.  If any  Lender does not accept such proposed Money Market Rate, the Administrative  Agent shall promptly notify the applicable Borrower, and that portion of the  requested borrowing that was to constitute Money Market Loans will be deemed to  be cancelled in its entirety with respect to all Lenders (and not merely with  respect to any such non-accepting Lender).   Each Lender will make the amount of its pro rata share of each borrowing  available (if such Lender is a Canadian Institution, from its U.S. Office, and  if such Lender is a U.S. Institution, from its Canadian Office) to the  Administrative Agent for the account of the applicable Borrower at the office  of the Administrative Agent as specified to the Lenders by the Administrative  Agent and prior to 1:00
P.M., New York City time (or in the case of Money  Market Loans having a Money Market Loan Maturity Date of six (6) days or less  from the relevant Borrowing Date, 3:00 P.M., New York City time), on the  Borrowing Date requested by the applicable Borrower in funds in the applicable  currency and immediately available to the Administrative Agent.  Such borrowing will then be made available  to the applicable Borrower by the Administrative Agent crediting the applicable  account of the applicable Borrower on the books of such office with the  aggregate of the amounts made available to the Administrative Agent by the  Lenders and in like funds as received by the Administrative Agent.  In no event may the number of Money Market  Loans requested in any calendar month exceed four (4).  In no event may the number of Money Market  Loans requested in any calendar year exceed twelve (12).


 


                              (e)     Tranches.  Notwithstanding anything to the contrary in  this Agreement, all borrowings, prepayments, conversions and continuations of  Revolving Credit Loans hereunder and all selections of Interest Periods  hereunder shall be in such amounts and be made pursuant to such elections so  that, after giving effect thereto, (i) the aggregate principal amount of each 


 


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Eurodollar Tranche and Money  Market Tranche shall be equal to $2,000,000 or a whole multiple of $100,000 in  excess thereof, (ii) the aggregate principal amount of each CDOR Tranche shall  be equal to C$2,000,000 or a whole multiple of C$100,000 in excess thereof, and  (iii) there shall be no more than seven (7) Eurodollar Tranches or CDOR  Tranches outstanding at any one time.


 


                              (f)     Termination  or Reduction of Commitments.  The  Borrowers shall have the right, upon not less than three (3) Business Days’  irrevocable notice to the Administrative Agent (which shall promptly notify  each Lender thereof), to terminate the Commitments or, from time to time, to  reduce the amount of the Commitments; provided that no such termination  or reduction shall be permitted if, after giving effect thereto and to any  payments of the Revolving Credit Loans made on the effective date thereof, (i)  the aggregate Cdn Dollar Amount of the Revolving Credit Loans then outstanding,  plus the aggregate Cdn Dollar Amount of the L/C Obligations then  outstanding, would exceed the total Commitments then in effect or (ii)
the  Available Commitment of any Lender would be less than zero.  Any such reduction shall be in an amount equal  to C$10,000,000 or a whole multiple of C$1,000,000 in excess thereof and shall  reduce permanently the Commitments then in effect.  No such reductions may occur in excess of one (1) per calendar  month.


 


                              (g)     Treatment  of Existing Loans.  Neither this  Agreement nor any other Loan Document shall be deemed or construed to provide  for or effect a repayment or re-advance of any portion of the Existing Loans or  any other Indebtedness outstanding under the Original Credit Agreement, it  being the intention of the Borrowers and the Lenders that such Existing Loans  and other Indebtedness shall constitute Loans and Indebtedness hereunder as of  the Effective Date.


 


                    SECTION  2.3     Optional and Mandatory Prepayments.


 


                              (a)     Each  Borrower may at any time and from time to time prepay (in the relevant  currency) its Revolving Credit Loans (subject, in the case of Eurodollar Loans,  CDOR Loans and Money Market Loans to compliance with the terms of Section  2.2(e) and Section 2.13), in whole or in part, without premium or penalty, upon  at least three (3) Business Days’ irrevocable notice from such Borrower to the  Administrative Agent, specifying the date and amount of prepayment and whether  the prepayment is of Eurodollar Loans, ABR Loans, Cdn Prime Loans, CDOR Loans,  Money Market Loans or a combination thereof, and, if of a combination thereof,  the amount allocable to each.  Upon  receipt of any notice of prepayment, the Administrative Agent shall promptly
notify each Lender thereof.  If any such  notice is given, the amount specified in such notice shall be due and payable  on the date specified therein, together with any amounts payable pursuant to  Section 2.13.  Subject to Section  2.2(e), partial prepayments shall be in an aggregate principal amount of  $500,000 (if prepaying Dollar-Denominated Loans) or C$500,000 (if prepaying Cdn  Dollar-Denominated Loans) or a whole multiple of $100,000 or C$100,000 (as the  case may be) in excess thereof (or, if less, the aggregate outstanding principal  amount of the Revolving Credit Loans).  


 


                              (b)     If,  as of 10:00 A.M. Toronto time on the last Business Day of any calendar month,  the sum of the Aggregate Outstanding Revolving Extensions of Credit of all of  the Lenders exceeds the aggregate Commitments then in effect, then the  Borrowers shall prepay the Loans (to be applied to such Loans and in any order  designated by the Borrowers, or if not so


 


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designated, first to the  Dollar-Denominated Loans and then, if necessary, to the Cdn Dollar-Denominated  Loans) or terminate or replace Letters of Credit by not later than 12:00 Noon,  Toronto time, on such day, to the extent required so that, after giving effect  to such prepayments, terminations or replacements, the sum of the Aggregate  Outstanding Revolving Extensions of Credit of all the Lenders does not exceed  the aggregate Commitment then in effect.   Each prepayment pursuant to this paragraph shall be made in accordance  with the provisions of Section 2.3(a) relating to optional prepayments (other  than the giving of notices thereunder).   The Administrative Agent shall, as soon as practicable after 10:00 A.M.  Toronto time on the last day of any calendar month, give to the Borrowers and  the Lenders notice of the amount of any prepayment required to be made pursuant  to this paragraph.  The determination by  the Administrative Agent
of any such amount in any such notice shall be  conclusive and binding on the Borrowers and the Lenders in the absence of  manifest error.  However, the failure of  the Administrative Agent to provide any such notice shall not relieve any  Borrower from its obligation to make any prepayment otherwise required pursuant  to this paragraph.


 


                    SECTION  2.4     Conversion and Continuation Options.


 


                              (a)     Each  Borrower may elect from time to time to convert its Eurodollar Loans or CDOR  Loans to ABR Loans or Cdn Prime Loans, by such Borrower giving the  Administrative Agent at least two (2) Business Days’ prior irrevocable notice  of such election, provided that any such conversion of Eurodollar Loans  or CDOR Loans may only be made on the last day of an Interest Period with  respect thereto.  Each Borrower may  elect from time to time to convert its ABR Loans or Cdn Prime Loans to  Eurodollar Loans or CDOR Loans by such Borrower giving the Administrative Agent  at least three (3) Business Days’ prior irrevocable notice of such  election.  Any such notice of conversion  to Eurodollar Loans or CDOR Loans shall specify the
length of the initial  Interest Period or Interest Periods therefor.   Each Borrower may elect from time to time to convert its ABR Loans to  Cdn Prime Loans (or vice-versa), by such Borrower giving the Administrative  Agent at least one (1) Business Days’ prior irrevocable notice of such  election.  Upon receipt of any such  notice the Administrative Agent shall promptly notify each affected Lender  thereof.  All or any part of outstanding  Eurodollar Loans, Cdn Prime Loans, CDOR Loans and ABR Loans may be converted as  provided herein, provided that (i) no Loan may be converted into a  Eurodollar Loan or a CDOR Loan when any Event of Default has occurred and is  continuing and the Administrative Agent has or the Required Lenders have  determined in its or their sole discretion that such a conversion is not  appropriate, (ii) any such conversion may only be made if, after giving effect  thereto, Section 2.2(e) would not be contravened, and (iii) no Revolving Credit  Loan
may be converted into a Eurodollar Loan or a CDOR Loan after the date that  is one (1) month (or, with respect to a CDOR Loan with an Interest Period of  less than one (1) month, the number of days in such Interest Period) prior to  the Termination Date.


 


                              (b)     Any  Eurodollar Loans or CDOR Loans may be continued as such upon the expiration of  the then current Interest Period with respect thereto by the applicable  Borrower giving irrevocable notice to the Administrative Agent, in accordance  with the applicable provisions of the term “Interest Period” set forth in  Section 1.1, of the length of the next Interest Period to be applicable to such  Loans, provided that no Eurodollar Loan or CDOR Loan may be continued as  such (i) when any Event of Default has occurred and is continuing and the Administrative  Agent has or the Required Lenders have determined in its or their sole  discretion


 


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that such a continuation is not  appropriate, (ii) if, after giving effect thereto, Section 2.2(e) would be  contravened, or (iii) after the date that is one (1) month (or, with respect to  a CDOR Loan with an Interest Period of less than one (1) month, the number of  days in such Interest Period) prior to the Termination Date, and provided,  further, that if the applicable Borrower shall fail to give any required  notice as described above in this paragraph or if such continuation is not  permitted pursuant to the preceding proviso such Loans shall be automatically  converted to ABR Loans on the last day of such then expiring Interest Period.  Upon receipt of any notice pursuant to this  Section 2.4(b), the Administrative Agent shall promptly notify each Lender  thereof.


 


                    SECTION  2.5     Fees.


 


                              (a)     The  Borrowers agree to pay to the Administrative Agent for the account of each  Lender a facility fee at a per annum rate for the period from and including the  first day of the Commitment Period to but excluding the Termination Date,  computed at the Facility Fee Rate on the daily amount of the Commitment of such  Lender, whether used or unused; provided that if such Lender continues  to have any Aggregate Outstanding Revolving Extensions of Credit after its  Commitment terminates, then such facility fee shall continue to accrue at the  Facility Fee Rate on the average daily amount of such Lender’s Aggregate  Outstanding Revolving Extensions of Credit from and including the date on which  its Commitment terminates to but excluding the
date on which such Lender ceases  to have any Aggregate Outstanding Revolving Extensions of Credit.  Accrued facility fees shall be payable in  Cdn Dollars in arrears on the last Business Day of each calendar quarter and on  the date on which the Commitments terminate, commencing on the first such date  to occur after the date of the Original Credit Agreement; provided that  any facility fees accruing after the date on which the Commitments terminate  shall be payable on demand.


 


                              (b)     The  Borrowers shall pay to the Administrative Agent, for its own account, the fees  in the amounts and on the dates previously agreed to in writing by Kimco  pursuant to the Fee Letters; provided that no such fee shall be due or  payable after the date on which the Commitments have been terminated and no  Loan, Letter of Credit, Reimbursement Obligation or other amount payable  hereunder or under any other Loan Document remains outstanding.


 


                    SECTION  2.6     Interest Rates and Payment Dates. 


 


                              (a)     Each  Eurodollar Loan shall bear interest for each day during each Interest Period  with respect thereto at a rate per annum equal to the Eurodollar Rate  determined for such day plus the Applicable Margin.


 


                              (b)     Each  ABR Loan shall bear interest at a rate per annum equal to the ABR plus  the Applicable Margin.


 


                              (c)     Each  Money Market Loan shall bear interest at a rate per annum equal to the Money  Market Rate applicable thereto plus the Applicable Margin.


 


                              (d)     Each  CDOR Loan shall bear interest for each day during each Interest Period with  respect thereto at a rate per annum equal to the CDOR Rate determined for such  day plus the Applicable Margin.


 


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                              (e)     Each  Cdn Prime Loan shall bear interest at a rate per annum equal to the Cdn Prime  Rate plus the Applicable Margin.


 


                              (f)     If  all or a portion of (i) the principal amount of any Revolving Credit Loan, (ii)  any interest payable thereon or (iii) any fee or other amount payable hereunder  shall not be paid when due (whether at the stated maturity, by acceleration or  otherwise), such overdue amount shall bear interest at a rate per annum which  is (x) in the case of overdue principal (except as otherwise specified in  clause (y) below), the rate that would otherwise be applicable thereto pursuant  to the foregoing provisions of this Section 2.6 plus 3% or (y) in the  case of any overdue principal with respect to Money Market Loans or any overdue  interest, fee or other amount, the rate described in Section 2.6(b) plus  3%, in each case from the date of such
non-payment to the date on which such  amount is paid in full (as well after as before judgment).


 


                              (g)     Interest  shall be payable in arrears on each Interest Payment Date, provided that  interest accruing pursuant to Section 2.6(f) shall be payable from time to time  on demand.


 


                    SECTION  2.7     Computation of Interest and Fees.


 


                              (a)     Facility  fees and interest (other than interest calculated on the basis of the Prime  Rate, the Cdn Prime Rate or the CDOR Rate) shall be calculated on the basis of  a 360-day year for the actual days elapsed.   Interest calculated on the basis of the Prime Rate, the Cdn Prime Rate  or the CDOR Rate shall be calculated on the basis of a 365- (or 366-, as the  case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as practicable notify the  Borrowers and the Lenders of each determination of a Eurodollar Rate, CDOR Rate  or Money Market Rate.  Any change in the  interest rate on a Revolving Credit Loan resulting from a change in the ABR or  the Cdn Prime Rate shall become effective as of the opening
of business on the  day on which such change becomes effective.   The Administrative Agent shall as soon as practicable notify the  Borrowers and the Lenders of the effective date and the amount of each such  change in interest rate.  The Applicable  Margin with respect to each Eurodollar Loan, CDOR Loan and Money Market Loan  that is, immediately prior to the Effective Date, an Existing Loan, shall  continue to be calculated based on the Applicable Margin with respect to such  Loan as set forth in the Original Credit Agreement until (but excluding) the  last day of the Interest Period then in effect for such Loan.  The L/C Fee Rate with respect to any Letter  of Credit outstanding immediately prior to the Effective Date, shall continue  to be calculated based on the L/C Fee Rate with respect to such Letter of  Credit as set forth in the Original Credit Agreement until (and including) the  Effective Date.  The Facility Fee Rate  shall continue to be calculated based on the Facility
Fee Rate as set forth in  the Original Credit Agreement until (but excluding) the Effective Date.


 


                              (b)     Each  determination of an interest rate by the Administrative Agent pursuant to any  provision of this Agreement shall be conclusive and binding on the Borrowers  and the Lenders in the absence of manifest error.  The Administrative Agent shall, at the request of the Borrowers,  deliver to the Borrowers a statement showing the quotations used by the  Administrative Agent in determining any interest rate with respect to any  Eurodollar Loan or CDOR Loan.


 


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                              (c)     For  the purpose of the Interest Act (Canada) and disclosure thereunder, whenever  interest to be paid under this Agreement is to be calculated on the basis of a  year of 360 days or any other period of time that is less than a calendar year,  the yearly rate of interest to which the rate determined pursuant to such  calculation is equivalent is the rate so determined multiplied by the actual  number of days in the calendar year in which the same is to be ascertained and  divided by either 360 or such other period of time, as the case may be.


 


                    SECTION  2.8     Inability to Determine Interest Rate.


 


                              If  prior to the first day of any Interest Period:


 


                              (a)      the  Administrative Agent shall
    have determined (which determination shall be conclusive and binding upon
    the
    Borrowers) that, by reason of circumstances affecting the relevant market,
    adequate and reasonable means do not exist for ascertaining the Eurodollar
    Rate for such Interest Period; or


 


                              (b)     the  Administrative Agent shall have received notice from the Required Lenders that  the Eurodollar Rate determined or to be determined for such Interest Period  will not adequately and fairly reflect the cost to such Lenders (as  conclusively certified by such Lenders) of making or maintaining their affected  Revolving Credit Loans during such Interest Period;




   the  Administrative Agent shall give telecopy or telephonic notice thereof to the  Borrowers and the Lenders as soon as practicable thereafter.  If such notice is given, (x) any Eurodollar  Loans requested to be made on the first day of such Interest Period shall be  made as ABR Loans, (y) any Revolving Credit Loans that were to have been  converted on the first day of such Interest Period to Eurodollar Loans shall be  converted to or continued as ABR Loans, and (z) any outstanding Eurodollar  Loans shall be converted, on the first day of such Interest Period, to ABR  Loans.  Until
        such notice has been withdrawn by the Administrative Agent, no further
        Eurodollar Loans shall be made or continued as such, nor shall the Borrowers
        have the
        right to convert any
    other Revolving Credit Loans to Eurodollar Loans.




 


                    SECTION  2.9     Pro Rata Treatment and Payments.


 


                              (a)     Each  borrowing by a Borrower of Revolving Credit Loans from the Lenders hereunder,  each payment by a Borrower on account of any fees hereunder (except for those  set forth in the Fee Letters or as otherwise expressly set forth herein) and  any reduction of the Commitments of the Lenders shall be made pro rata  according to the respective Commitment Percentages of the Lenders.  Each payment (including each prepayment) by  a Borrower on account of principal of and interest on its Revolving Credit  Loans shall be made pro rata according to the respective outstanding principal  amounts of such Revolving Credit Loans then held by the Lenders.  If at any time insufficient funds are  received by and available to the Administrative Agent to pay
fully all amounts  of principal, unreimbursed Letter of Credit drawings, interest and fees then  due hereunder, such funds shall be applied (i) first, towards payment of  interest and fees then due hereunder, ratably among the parties entitled  thereto in accordance with the amounts of interest and fees then due to such  parties, and (ii) second, towards payment of principal and unreimbursed Letter  of Credit drawings then due hereunder, ratably among the parties entitled  thereto in accordance with the amounts of principal and


 


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unreimbursed Letter of Credit  drawings then due to such parties.  All  payments (including prepayments) to be made by the Borrowers hereunder and  under the Notes, whether on account of principal, interest, fees or otherwise,  shall be made without setoff or counterclaim and shall be made prior to 12:00  Noon, Toronto time, on the due date thereof to the Administrative Agent, for  the account of the Lenders, at the Administrative Agent’s office specified in  Section 10.2, in Dollars or Cdn Dollars, as the case may be, and in immediately  available funds.  It is understood that,  if any payment of principal is made on any day in accordance with the preceding  sentence, no interest shall accrue on such day in respect of such  principal.  The Administrative Agent  shall distribute such payments to the Lenders promptly upon receipt in like  funds and currency as received.  If any  payment hereunder (other than payments on Eurodollar
Loans or CDOR Loans)  becomes due and payable on a day other than a Business Day, such payment shall  be extended to the next succeeding Business Day, and, with respect to payments  of principal, interest thereon shall be payable at the then applicable rate  during such extension.  If any payment  on a Eurodollar Loan or a CDOR Loan becomes due and payable on a day other than  a Business Day, the maturity thereof shall be extended to the next succeeding  Business Day (and, with respect to any such payments of principal, interest  thereon shall be payable at the then applicable rate during such extension)  unless the result of such extension would be to extend such payment into  another calendar month, in which event such payment shall be made on the  immediately preceding Business Day.


 


                              (b)     Unless  the Administrative Agent shall have been notified in writing by any Lender  prior to a borrowing that such Lender will not make the amount that would  constitute its share of such borrowing available to the Administrative Agent,  the Administrative Agent may assume that such Lender is making such amount  available to the Administrative Agent, and the Administrative Agent may, in  reliance upon such assumption, make available to the applicable Borrower a  corresponding amount.  If such amount is  not made available to the Administrative Agent by the required time on the  Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on  demand, such amount with interest thereon at a rate equal to the daily average  Federal
Funds Effective Rate for the period until such Lender makes such amount  immediately available to the Administrative Agent.  A certificate of the Administrative Agent submitted to any Lender  with respect to any amounts owing under this Section 2.9(b) shall be conclusive  in the absence of manifest error.  If  such Lender’s share of such borrowing is not made available to the  Administrative Agent by such Lender within three (3) Business Days of such  Borrowing Date, the Administrative Agent shall also be entitled to recover such  amount with interest thereon at the rate per annum applicable to ABR Loans  hereunder, on demand, from the applicable Borrower.


 


                    SECTION  2.10     Illegality.


 


                              Notwithstanding  any other provision herein, if the adoption of or any change in any Requirement  of Law or in the interpretation or application thereof shall make it unlawful  for any Lender to make or maintain Eurodollar Loans as contemplated by this  Agreement, (a) the commitment of such Lender hereunder to make Eurodollar  Loans, to continue Eurodollar Loans as such, or to convert ABR Loans to  Eurodollar Loans shall forthwith be cancelled and (b) such Lender’s Revolving  Credit Loans then outstanding as Eurodollar Loans, if any, shall be converted  automatically to ABR Loans on the respective last days of the then current  Interest Periods with respect to such Loans or within such earlier period as  required by law.  If any such


 


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conversion of a Eurodollar Loan  occurs on a day which is not the last day of the then current Interest Period  with respect thereto, the applicable Borrower shall pay to such Lender such  amounts, if any, as may be required pursuant to Section 2.13.


 


                    SECTION  2.11     Requirements of Law.


 


                              (a)     If  the adoption of or any change in any Requirement of Law or in the  interpretation or application thereof or compliance by any Lender with any  request or directive (whether or not having the force of law) from any central  bank or other Governmental Authority made subsequent to September 21,  2004:


 


                                        (i)     shall  subject any Lender or the Issuing Lender to any tax of any kind whatsoever with  respect to this Agreement, any Note, any Letter of Credit (or any participation  therein) or any Application or any Eurodollar Loan, Money Market Loan or CDOR  Loan made by it, or change the basis of taxation of payments to such Lender or  the Issuing Lender in respect thereof (except in each case for Non-Excluded  Taxes covered by Section 2.12 and changes in the rate of tax on the overall net  income of such Lender or the Issuing Lender);


 


                                        (ii)     shall  impose, modify or hold applicable any reserve (except to the extent that such  reserve is specifically subject to Section 2.11(c)), special deposit,  compulsory loan or similar requirement against assets held by, deposits or  other liabilities in or for the account of, advances, loans or other extensions  of credit by, or any other acquisition of funds by, any relevant office of such  Lender which is not otherwise included in the determination of the Eurodollar  Rate, the Money Market Rate or the CDOR Rate; or


 


                                        (iii)     shall  impose on such Lender any other condition;


 


and the result of any of the  foregoing is to increase the cost to such Lender or the Issuing Lender, by an  amount which such Lender or the Issuing Lender, as the case may be, deems to be  material, of making, converting into, continuing or maintaining Eurodollar  Loans, Money Market Loans or CDOR Loans or issuing or participating in Letters  of Credit or to reduce any amount receivable hereunder in respect thereof, then,  in any such case, the relevant Borrowers shall promptly pay such Lender or the  Issuing Lender, upon its demand, any additional amounts necessary to compensate  such Lender or the Issuing Lender, as the case may be, for such increased cost  or reduced amount receivable.  If any  Lender or the Issuing Lender becomes entitled to claim any additional amounts  pursuant to this Section 2.11(a), it shall promptly notify the Borrowers,  through the Administrative Agent, of the event by reason of which it has become  so entitled, provided
that such amounts shall be no greater than amounts that  such Lender or the Issuing Lender is generally charging other borrowers or  account parties on loans or letters of credit (as the case may be) similarly  situated to the relevant Borrower.  


 


                              (b)     If  any Lender or the Issuing Lender shall have determined that the application of  any Requirement of Law regarding capital adequacy or compliance by such Lender  or the Issuing Lender or any corporation controlling such Lender or the Issuing  Lender with any request or directive regarding capital adequacy (whether or not  having the force of law) from any Governmental Authority does or shall have the  effect of reducing the rate of return on such Lender’s or the Issuing Lender’s  or such corporation’s capital as a consequence of its


 


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obligations hereunder or under  any Letter of Credit to a level below that which such Lender or the Issuing  Lender or such corporation could have achieved but for such application or  compliance (taking into consideration such Lender’s or the Issuing Lender’s or  such corporation’s policies with respect to capital adequacy and such Lender’s  or the Issuing Lender’s treatment of its Commitments and Letters of Credit for  internal purposes as of the date on which it became a party hereto) by an  amount deemed by such Lender to be material, then from time to time, after  submission by such Lender or the Issuing Lender to the Borrowers (with a copy  to the Administrative Agent) of a written request therefor (setting forth in  reasonable detail the basis for such request), (i) each Borrower shall pay to  such Lender or the Issuing Lender, as the case may be, such additional amount  or amounts as will compensate such Lender or the Issuing
Lender or such  corporation, as the case may be, for such reduction solely with respect to such  Borrower’s Loans and Letters of Credit and (ii) the Borrowers shall, jointly  and severally, pay to such Lender or the Issuing Lender, as the case may be,  such additional amount or amounts as will compensate such Lender or the Issuing  Lender or such corporation, as the case may be, for such reduction with respect  to this Agreement or the Commitments generally and not solely with respect to  any particular Borrower’s Loans and Letters of Credit.


 


                              (c)     Each  Borrower agrees to pay to each Lender which requests compensation under this  Section 2.11(c) (by notice to such Borrower), on the last day of each Interest  Period with respect to any Eurodollar Loan made by such Lender to such  Borrower, so long as such Lender shall be required to maintain reserves against  “Eurocurrency liabilities” under Regulation D of the Board (or, so long as such  Lender may be required by the Board or by any other Governmental Authority to  maintain reserves against any other category of liabilities which includes  deposits by reference to which the interest rate on Eurodollar Loans is  determined as provided in this Agreement or against any category of extensions  of credit or other assets of such Lender
which includes any Eurodollar Loans),  an additional amount (determined by such Lender and notified to such Borrower)  representing such Lender’s calculation or, if an accurate calculation is  impracticable, reasonable estimate (using such reasonable means of allocation  as such Lender shall determine) of the actual costs, if any, incurred by such  Lender during such Interest Period, as a result of the applicability of the  foregoing reserves to such Eurodollar Loans, which amount in any event shall  not exceed the product of the following for each day of such Interest Period:


 


                                        (i)     the  principal amount of the Eurodollar Loans made by such Lender to which such  Interest Period relates and outstanding on such day; and


 


                                        (ii)     the  difference between (x) a fraction the numerator of which is the Eurodollar Rate  (expressed as a decimal) applicable to such Eurodollar Loan, and the  denominator of which is one (1) minus the maximum rate (expressed as a  decimal) at which such reserve requirements are imposed by the Board or other  Governmental Authority on such date minus (y) such numerator; and


 


                                        (iii)     a  fraction the numerator of which is one (1) and the denominator of which is 360.


 


Any Lender which gives notice  under this Section 2.11(c) shall promptly withdraw such notice (by written  notice of withdrawal given to the Administrative Agent and the applicable  Borrower)


 


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in the event such Lender is no  longer required to maintain such reserves or the circumstances giving rise to  such notice shall otherwise cease to exist.


 


                              (d)     A  certificate as to any additional amounts payable pursuant to this Section 2.11  submitted by any Lender, through the Administrative Agent, to the Borrowers  shall be conclusive in the absence of manifest error.  The agreements in this Section 2.11 shall survive the termination  of this Agreement, the expiration, cancellation, or other termination of the  Letters of Credit, and the payment of the Revolving Credit Loans and all other  amounts payable hereunder (the date on which all of the foregoing shall have  occurred, the “Final Date”), until the first anniversary of the Final  Date.  Notwithstanding anything  contained in this Section 2.11, no Borrower shall be obligated to pay any  greater amounts than such Lender(s)
or Issuing Lender(s) is (are) generally  charging other borrowers or account parties on loans or letters of credit (as  the case may be) similarly situated to the Borrowers.


 


                    SECTION  2.12     Taxes.


 


                              (a)     All  payments made by any Borrower under this Agreement and the Notes shall be made  free and clear of, and without deduction or withholding for or on account of,  any present or future income, stamp or other taxes, levies, imposts, duties,  charges, fees, deductions or withholdings, now or hereafter imposed, levied,  collected, withheld or assessed by any Governmental Authority, excluding net  income taxes and franchise taxes (imposed in lieu of net income taxes) imposed  on the Administrative Agent, the Issuing Lender or any Lender as a result of a  present or former connection between the Administrative Agent, the Issuing  Lender or such Lender and the jurisdiction of the Governmental Authority  imposing such tax or any political subdivision or
taxing authority thereof or  therein (other than any such connection arising solely from the Administrative  Agent, the Issuing Lender or such Lender having executed, delivered or  performed its obligations or received a payment under, or enforced, this  Agreement or the Notes).  If any such  non-excluded taxes, levies, imposts, duties, charges, fees, deductions or  withholdings (“Non-Excluded Taxes”) are required to be withheld from any  amounts payable to the Administrative Agent, the Issuing Lender or any Lender  hereunder or under the Notes, the amounts so payable to the Administrative  Agent, the Issuing Lender or such Lender shall be increased to the extent  necessary to yield to the Administrative Agent, the Issuing Lender or such  Lender (after payment of all Non-Excluded Taxes and after taking into account  any credit, deduction, or other tax benefit resulting from such Non-Excluded Taxes)  interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes, provided, however,  that no Borrower shall be required to increase any such amounts payable to any  Non-U.S. Lender if such Lender fails to comply with the requirements of Section  2.12(b).  Whenever any Non-Excluded  Taxes are payable by any Borrower, as promptly as possible thereafter such  Borrower shall send to the Administrative Agent for its own account or for the  account of such Lender or the Issuing Lender, as the case may be, a certified  copy of an original official receipt received by such Borrower showing payment  thereof.  If any Borrower fails to pay  any Non-Excluded Taxes when due to the appropriate taxing authority or fails to  remit to the Administrative Agent the required receipts or other required  documentary evidence, such Borrower shall indemnify the Administrative Agent,  the Issuing Lender and the Lenders for any incremental taxes, interest or  penalties that may become payable by the Administrative
Agent, the Issuing  Lender or any Lender as a result of any such failure.  The agreements in this Section 2.12(a) shall survive the  termination of this Agreement, the expiration, cancellation, or


 


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other termination of the  Letters of Credit, and the payment of the Revolving Credit Loans and all other  amounts payable hereunder.


 


                              (b)     Each  Lender (or Transferee) that is not a citizen or resident of the United States  of America, a corporation, partnership or other entity created or organized in  or under the laws of the United States of America or any state thereof, or any  estate or trust that is subject to federal income taxation regardless of the  source of its income (a “Non-U.S. Lender”) shall deliver (on or prior to  the Effective Date in the case of any such Person that is a Lender as of the  Effective Date) to the Borrowers and the Administrative Agent (or, in the case  of a Participant, to the Lender from which the related participation shall have  been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN  or Form W-8ECI, or, in the
case of a Non-U.S. Lender claiming exemption from  U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with  respect to payments of “portfolio interest”, a Form W-8BEN, or any subsequent  versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a  Form W-8BEN for portfolio interest, an annual certificate representing under  penalty of perjury that such Non-U.S. Lender is not a “bank” for purposes of  Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning  of Section 871(h)(3)(B) of the Code) of any Borrower and is not a controlled  foreign corporation related to any Borrower (within the meaning of Section  864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.  Lender claiming complete exemption from U.S. federal withholding tax on all  payments by any Borrower under this Agreement and the other Loan Documents.  Such forms shall be delivered by each  Non-U.S. Lender on or before the date
it becomes a party to this Agreement (or,  in the case of any Participant, on or before the date such Participant  purchases the related participation).   In addition, (i) each Non-U.S. Lender shall deliver such forms promptly  upon the obsolescence or invalidity of any form previously delivered by such  Non-U.S. Lender and (ii) each Non-U.S. Lender shall deliver any and all other  documentation reasonably requested by any Borrower from time to time so as to  provide a complete exemption from U.S. federal withholding tax and Canadian  withholding tax on any and all payments under this Agreement and the other Loan  Documents.  Each Non-U.S. Lender shall  promptly notify the applicable Borrower at any time it determines that it is no  longer in a position to provide any previously delivered certificate to such  Borrower (or any other form of certification adopted by the U.S. taxing  authorities for such purpose).   Notwithstanding any other provision of this Section 2.12(b), a Non-U.S.
Lender shall not be required to deliver any form or other documentation  pursuant to this Section 2.12(b) that such Non-U.S. Lender is not legally able  to deliver.


 


                              (c)     Each  Lender (or Transferee) that is not a Non-U.S. Lender (a “U.S. Lender”)  shall deliver (on or prior to the Effective Date in the case of any such Person  that is a Lender as of the Effective Date) to the Borrowers and the  Administrative Agent (or, in the case of a Participant, to the Lender from  which the related participation shall have been purchased) two copies of U.S.  Internal Revenue Service Form W-9 or any subsequent versions thereof or  successors thereto, properly completed and duly executed by such U.S. Lender.  Such form shall be delivered by each U.S.  Lender on or before the date it becomes a party to this Agreement (or, in the  case of any Participant, on or before the date such Participant purchases the
related participation).  In addition,  each U.S. Lender shall deliver such form promptly upon the obsolescence or  invalidity of any form previously delivered by such U.S. Lender.


 


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                    SECTION  2.13     Indemnity.


 


                              Each  Borrower agrees to indemnify each Lender and to hold each Lender harmless from  any loss or expense (including post-judgment expenses) which such Lender may  sustain or incur as a consequence of (a) default by such Borrower in making a  borrowing of Eurodollar Loans, Money Market Loans or CDOR Loans or in the  conversion into or continuation of Eurodollar Loans or CDOR Loans after such  Borrower has given a notice requesting or accepting the same in accordance with  the provisions of this Agreement, (b) default by such Borrower in making any  prepayment after such Borrower has given a notice thereof in accordance with  the provisions of this Agreement, or (c) the making of a prepayment or  conversion of Eurodollar Loans, Money Market Loans or CDOR Loans on a day which  is not
the last day of an Interest Period or the Money Market Loan Maturity  Date, as the case may be, with respect thereto.  Such indemnification may, at the option of any Lender, include an  amount equal to the excess, if any, of (i) the amount of interest which would  have accrued on the amount so prepaid or converted, or not so borrowed,  converted or continued, for the period from the date of such prepayment or of  such failure to borrow, convert or continue to the last day of the relevant  Interest Period or the relevant Money Market Loan Maturity Date, as the case  may be (or proposed Interest Period or proposed Money Market Loan Maturity  Date, as the case may be), in each case at the applicable rate of interest for  such Loans provided for herein (excluding, however, the Applicable Margin or  Margin) over (ii) the amount of interest (as reasonably determined by  such Lender) which would have accrued to such Lender on such amount by placing  such amount on deposit for a comparable period
with leading banks in the  interbank eurodollar market or other relevant market.  This covenant shall survive the termination of this Agreement,  the expiration, cancellation, or other termination of the Letters of Credit,  and the payment of the Revolving Credit Loans and all other amounts payable  hereunder, until the first anniversary of the Final Date.


 


                    SECTION  2.14     Change of Lending Office.


 


                              Each  Lender and each Transferee agrees that, upon the occurrence of any event giving  rise to the operation of Section 2.10, 2.11 or 2.12 with respect to such Lender  or Transferee, it will, if requested by any Borrower, use reasonable efforts  (subject to overall policy considerations of such Lender or Transferee) to  designate another lending office for any Revolving Credit Loans affected by  such event with the object of avoiding the consequences of such event; provided  that such designation is made on terms that, in the sole judgment of such  Lender or Transferee, cause such Lender or Transferee and its lending office(s)  to suffer no material economic, legal or regulatory disadvantage, and provided,  further, that nothing in this Section 2.14 shall affect
or postpone any  of the obligations of any Borrower or the rights of any Lender or Transferee  pursuant to Sections 2.10, 2.11 and 2.12.


 


                    SECTION  2.15     Replacement of Lenders under Certain  Circumstances.


 


                              Kimco  shall be permitted to replace any Lender which (a) requests reimbursement for  amounts owing pursuant to Section 2.11 or 2.12, (b) is affected in the manner  described in Section 2.10 and as a result thereof any of the actions described  in Section 2.10 is required to be taken or (c) defaults in its obligation to  make Revolving Credit Loans hereunder, with a replacement bank or other financial  institution; provided that (i) such replacement does not


 


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conflict with any Requirement  of Law, (ii) no Event of Default shall have occurred and be continuing at the  time of such replacement, (iii) the applicable Borrowers shall repay (or the  replacement bank or institution shall purchase, at par) all Revolving Credit  Loans and other amounts owing to such replaced Lender prior to the date of  replacement, (iv) the applicable Borrowers shall be liable to such replaced  Lender under Section 2.13 if any Eurodollar Loan, Money Market Loan or CDOR  Loan owing to such replaced Lender shall be prepaid (or purchased) other than  on the last day of the Interest Period or the Money Market Loan Maturity Date,  as the case may be, relating thereto, (v) the replacement bank or institution,  if not already a Lender, and the terms and conditions of such replacement,  shall be satisfactory to the Administrative Agent and the Issuing Lender, (vi)  the replaced Lender shall be obligated to make such replacement in accordance with
 the provisions of Section 10.6 (provided that the applicable Borrowers shall be  obligated to pay the registration and processing fee referred to therein),  (vii) the replaced Lender shall (except as provided in the following clause  (ix)) be released from its obligations under this Agreement, (viii) until such  time as such replacement shall be consummated, the applicable Borrowers shall  pay all additional amounts (if any) required pursuant to Section 2.11 or 2.12,  as the case may be, and (ix) any such replacement shall not be deemed to be a  waiver of any rights which any Borrower, the Administrative Agent or any other  Lender shall have against the replaced Lender if it defaulted in its obligation  to make Revolving Credit Loans hereunder.


 


                    SECTION  2.16     Additional  Borrowers; Kimco as Authorized Exclusive Agent.


 


                              (a)     After  the Effective Date, any Subsidiary shall constitute a Borrower for purposes of  this Agreement if:


 


                                        (i)     the  Borrowers shall have so notified the Administrative Agent and such Subsidiary  and Kimco shall have executed and delivered to the Administrative Agent a  Subsidiary Joinder substantially in the form of Exhibit C-2 (a “Subsidiary  Joinder”); 


 


                                        (ii)     the  Administrative Agent shall have received, with a counterpart for the  Administrative Agent, each Lender and the Issuing Lender, the executed legal  opinion of counsel to such Subsidiary, substantially in the form of Exhibit D  as it relates to such Subsidiary, dated the date of the Subsidiary Joinder;


 


                                        (iii)     the  Administrative Agent shall have received from such Subsidiary a signed  replacement (or additional, as applicable) Revolving Credit Note for the  account of each Lender (it being acknowledged and agreed by Administrative  Agent and each Lender that each such Lender shall, in such event, return to any  applicable Borrower which is then being released from its obligations as a  Borrower hereunder, the original Revolving Credit Note previously executed and  delivered by such Borrower to such Lender); 


 


                                        (iv)     the  Administrative Agent shall have received a certificate from a Responsible  Officer of Kimco and such Subsidiary, dated the date of the Subsidiary Joinder,  certifying as to the names and offices of the Persons authorized to sign the  Loan Documents to be delivered pursuant to the terms hereof by such Subsidiary  and Kimco,


 


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respectively, together with the  signatures of each such Person and a certificate of another Responsible Officer  of such Person, certifying as to the name, office, and signature of such first  Responsible Officer;  


 


                                        (v)     the  Administrative Agent shall have received such documents and certificates as the  Administrative Agent or its counsel may reasonably and customarily request  relating to the organization, existence and, if and to the extent applicable, good  standing of such Subsidiary and Kimco, and the authorization of such Subsidiary  and Kimco, in respect of the transactions contemplated by this Agreement and  the Subsidiary Joinder, all in form and substance reasonably satisfactory to  the Administrative Agent, certified to be true, correct and complete by a  Responsible Officer as of the effective date of such Subsidiary Joinder;


 


                                        (vi)     such  Subsidiary is a Wholly Owned Subsidiary that satisfies the Baseline Conditions;


 


                                        (vii)     after  giving effect to such Subsidiary Joinder, there shall be no more than fifteen  (15) Borrowers hereunder; and


 


                                        (viii)     the  Administrative Agent shall have received payment of all reasonable third-party  out-of-pocket expenses required to be reimbursed or paid by any Borrower  hereunder, including the reasonable fees and disbursements invoiced of the  Administrative Agent’s counsel (which may be in-house counsel if no external  counsel is engaged at any Borrower’s expense), if any, in connection with any  of the above transactions and the related documentation.


 


When any such Subsidiary  becomes a Borrower, the Administrative Agent will promptly notify each Lender  thereof.  If the designation of such  Subsidiary as a Borrower obligates the Administrative Agent or any Lender to  comply with “know your customer” or similar identification procedures in  accordance with applicable laws and regulations in circumstances where the  necessary information is not already available to it, the applicable Subsidiary  shall, promptly upon the request of the Administrative Agent or such Lender,  supply such documentation and other evidence as is reasonably and customarily  requested by the Administrative Agent or such Lender in order for the  Administrative Agent or such Lender to be satisfied (in good faith) it has  complied with all necessary “know your customer” or other similar verifications  under all applicable laws and regulations.


 


                              (b)     Each  Borrower under this Agreement (including without limitation, each Borrower as  of the Effective Date and each Subsidiary that subsequently becomes a Borrower  hereunder), hereby (i) irrevocably and unconditionally designates and  authorizes Kimco (and Kimco hereby accepts the same) as its exclusive agent to  act on its behalf in connection with the requesting, funding, maintenance,  conversion, continuation and repayment of any Loans hereunder, or the issuance,  extension, modification or cancellation of any Letter of Credit hereunder, or  any other matter relating to such Loans or Letters of Credit or relating to  this Agreement or the other Loan Documents generally, including without  limitation, the giving and/or receiving of notices and/or
consents or other  instruction or direction hereunder (all of the foregoing, collectively, a “Kimco  Instruction”), (ii) irrevocably and unconditionally agrees that


 


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the Administrative Agent and  the Lenders may rely on any Kimco Instruction with respect to any and all such  matters without further inquiry of or confirmation from such Borrower, or any  of them, and that any Kimco Instruction shall control over any conflicting or  inconsistent instruction from any Borrower and (iii) irrevocably and  unconditionally consents to the addition of any other Borrower after the  Effective Date and agrees to be bound hereunder severally, but not jointly and  severally, with all other Borrowers hereunder.


 


                    SECTION  2.17     [Intentionally  Omitted.]  


 


                    SECTION  2.18     Identity of Lenders; Funding of Loans.  Each Lender represents that it is either a  Canadian Institution or a U.S. Institution and, if it is a U.S. Institution,  that its Loans are held as part of its Canadian banking business, and each  Lender agrees that it will, so long as it is a Lender hereunder, maintain a  Canadian Office or U.S. Office, as applicable, through which it will fund the  Loans it makes hereunder, unless otherwise consented to by Kimco (such consent  not to be unreasonably withheld and not to be required if a Designated Event of  Default has occurred and is continuing.)


 


ARTICLE III


 


LETTERS OF CREDIT


 


                    SECTION  3.1     L/C Commitment.


 


                              (a)     Subject  to the terms and conditions hereof, the Issuing Lender, in reliance on the  agreements of the Lenders set forth in Section 3.4(a), agrees to issue, amend,  renew or extend, as the case may be, letters of credit (“Letters of Credit”)  for the account of any Borrower or (with the consent of the Administrative  Agent, such consent not to be unreasonably withheld) its designee, on any  Business Day during the Commitment Period other than the last ten (10) Business  Days thereof in such form as may be acceptable from time to time to the Issuing  Lender; provided that the Issuing Lender shall not issue, amend, renew  or extend, as the case may be, any Letter of Credit if, after giving effect to  such issuance, amendment,
renewal or extension, (i) the Cdn Dollar Amount of  the L/C Obligations would exceed the L/C Commitment, (ii) the Available  Commitment of any Lender would be less than zero or (iii) the sum of the  Aggregate Outstanding Revolving Extensions of Credit of all the Lenders shall  exceed the aggregate Commitments.  


 


                              (b)     Each  Letter of Credit (i) shall be denominated in Cdn Dollars or Dollars, (ii) shall  be available by sight payment (rather than by acceptance, by deferred payment  or by negotiation), (iii) shall be a standby letter of credit issued to  support obligations of a Borrower, contingent or otherwise, incurred in the  ordinary course of business and (iv) shall expire no later than ten (10)  Business Days prior to the Termination Date.


 


                              (c)     Each  Letter of Credit shall be subject to the Uniform Customs or the ISP and, to the  extent not inconsistent therewith, the laws of the State of New York or any  other jurisdiction requested by the applicable Borrower and acceptable to the  Administrative Agent and the Issuing Lender in their sole discretion.


 


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                              (d)     The  Issuing Lender shall not at any time be obligated to issue, amend, renew or  extend, as the case may be, any Letter of Credit hereunder if such issuance  would conflict with, or cause the Issuing Lender or any L/C Participant to  exceed any limits imposed by, any applicable Requirement of Law.


 


                    SECTION  3.2     Procedure for Issuance of Letters of Credit.


 


                              Each  Borrower may from time to time request that the Issuing Lender issue (or amend,  renew or extend) a Letter of Credit by delivering to the Issuing Lender, with a  copy to the Administrative Agent, in each case, at the applicable address for  notices specified herein, (i) an Application therefor, completed to the  satisfaction of the Issuing Lender, and (ii) such other certificates,  documents and other papers and information as the Issuing Lender may  request.  Upon receipt of any  Application, the Issuing Lender will confirm with the Administrative Agent (by  telephone or in writing) that the limitations contained in Section 3.1(a) shall  not be violated and shall then process such Application and the certificates,  documents and other papers and information
delivered to it in connection  therewith in accordance with its customary procedures and shall promptly issue  (or amend, renew or extend) the Letter of Credit requested thereby (but in no  event shall the Issuing Lender be required to issue (or amend, renew or extend)  any Letter of Credit earlier than three (3) Business Days after its receipt of  the Application therefor and all such other certificates, documents and other  papers and information relating thereto) by issuing the original of such Letter  of Credit (or amendment, renewal or extension) to the beneficiary thereof or as  otherwise may be agreed by the Issuing Lender and the applicable Borrower.  The Issuing Lender shall furnish a copy of  such Letter of Credit to the applicable Borrower and the Administrative Agent  promptly following the issuance thereof, and the Administrative Agent shall  promptly notify the Lenders thereof.


 


                    SECTION  3.3     Fees and Other Charges.


 


                              (a)     The  applicable Borrower shall pay to the Administrative Agent, for the account of  the Issuing Lender and the L/C Participants, a letter of credit fee in the  relevant currency with respect to each Letter of Credit issued at the request  of such Borrower at a per annum rate, for each day during the period from and  including the date of issuance of such Letter of Credit to and including the  first date thereafter on which such Letter of Credit shall expire or be  cancelled or fully drawn, equal to the L/C Fee Rate in effect on such day, calculated  on the basis of a 360-day year, of the aggregate amount available to be drawn  under such Letter of Credit on such day.   In addition, such Borrower shall pay, in the relevant currency, to the
Issuing Lender for its own account a fronting fee of 0.10% per annum on the  undrawn and unexpired amount of each such Letter of Credit.  Letter of credit fees and fronting fees  pursuant to this paragraph shall be payable quarterly in arrears on each L/C  Fee Payment Date to occur while the relevant Letter of Credit is outstanding  and shall be nonrefundable.


 


                              (b)     In  addition to the foregoing fees, the applicable Borrower shall pay or reimburse  the Issuing Lender in Dollars for such normal and customary costs and expenses  as are incurred or charged by the Issuing Lender in issuing, effecting payment  under, amending or otherwise administering any Letter of Credit requested by  such Borrower.


 


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                              (c)     The  Administrative Agent shall, promptly following its receipt thereof, distribute  to the Issuing Lender and the L/C Participants all fees received by the  Administrative Agent for their respective accounts pursuant to this Section  3.3.


 


                    SECTION  3.4     L/C Participations.


 


                              (a)     The  Issuing Lender irrevocably agrees to grant and hereby grants to each L/C  Participant, and, to induce the Issuing Lender to issue Letters of Credit  hereunder, each L/C Participant irrevocably agrees to accept and purchase and  hereby accepts and purchases from the Issuing Lender, on the terms and  conditions hereinafter stated, for such L/C Participant’s own account and risk  an undivided interest equal to such L/C Participant’s Commitment Percentage in  the Issuing Lender’s obligations and rights in respect of each Letter of Credit  issued hereunder (and in respect of each amendment to a Letter of Credit  increasing the amount thereof in accordance with the provisions of this  Agreement) and the amount of each draft or other
demand for payment paid by the  Issuing Lender thereunder.  Each L/C  Participant unconditionally and irrevocably agrees with the Issuing Lender  that, if the Issuing Lender notifies it that a draft or other demand for  payment has been paid under any Letter of Credit for which the Issuing Lender  has not been reimbursed in full by the applicable Borrower in accordance with  the terms of this Agreement, such L/C Participant shall pay, in the relevant  currency, to the Issuing Lender upon demand at the Issuing Lender’s address for  notices specified herein an amount equal to such L/C Participant’s Commitment  Percentage of the amount of such draft or other demand for payment, or any part  thereof, which is not so reimbursed.


 


                              (b)     If  any amount required to be paid by any L/C Participant to the Issuing Lender  pursuant to Section 3.4(a) in respect of any unreimbursed portion of any  payment made by the Issuing Lender under any Letter of Credit is paid to the  Issuing Lender within three (3) Business Days after the date such payment is  due, such L/C Participant shall pay to the Issuing Lender on demand an amount  equal to the product of (i) such amount, times (ii) the daily average  Federal funds rate, as quoted by the Issuing Lender, during the period from and  including the date such payment is required to the date on which such payment  is immediately available to the Issuing Lender, times (iii) a fraction  the numerator of which is the number of days that
elapse during such period and  the denominator of which is 360.  If any  such amount required to be paid by any L/C Participant pursuant to Section  3.4(a) is not in fact made available to the Issuing Lender by such L/C  Participant within three (3) Business Days after the date such payment is due,  the Issuing Lender shall be entitled to recover from such L/C Participant, on  demand, such amount with interest thereon calculated from such due date at the  rate per annum applicable to ABR Loans hereunder, if the relevant Letter of  Credit is denominated in Dollars, or Cdn Prime Loans, if the relevant Letter of  Credit is denominated in Cdn Dollars.  A  certificate of the Issuing Lender submitted to any L/C Participant with respect  to any amounts owing under this Section shall be conclusive in the absence of  manifest error.


 


                              (c)     Whenever,  at any time after the Issuing Lender has made payment under any Letter of  Credit and has received from any L/C Participant its pro rata share of such  payment in accordance with this Section 3.4, the Issuing Lender receives any  payment related to such Letter of Credit (whether directly from the applicable  Borrower or otherwise, including proceeds of any collateral applied thereto by  the Issuing Lender), or any payment of interest on account thereof, the Issuing  Lender will promptly distribute to such L/C Participant its pro rata share


 


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thereof; provided that  in the event that any such payment received by the Issuing Lender shall be  required to be returned by the Issuing Lender, such L/C Participant shall  return to the Issuing Lender the portion thereof previously distributed by the  Issuing Lender to it.


 


                    SECTION  3.5     Reimbursement Obligation of the Borrowers.


 


                              (a)     Each  Borrower agrees to reimburse the Issuing Lender, in the relevant currency, on  each date on which the Issuing Lender notifies such Borrower of the date and  amount of a draft or other demand for payment presented under any Letter of  Credit issued at the request of such Borrower and paid by the Issuing Lender  for the amount of (i) such draft or other demand so paid (which reimbursement  may be effected through the procedure described in Section 3.5(c)) and (ii) any  taxes, fees, charges or other costs or expenses (including post-judgment taxes,  fees, charges or other costs or expenses) incurred by the Issuing Lender in  connection with such payment.  Each such  payment shall be made to the Issuing Lender at its address for notices
specified herein in lawful money of Canada or the United States of America, as  the case may be, and in immediately available funds.


 


                              (b)     Interest  shall be payable on any and all amounts remaining unpaid by the applicable  Borrower under this Article III from the date such amounts become payable  (whether at stated maturity, by acceleration or otherwise) until payment in  full at the rate which would be payable on any outstanding ABR Loans (with  respect to amounts due in Dollars) or Cdn Prime Loans (with respect to amounts  due in Cdn Dollars) which were then overdue.


 


                              (c)     Each  drawing under any Letter of Credit shall constitute a request by the applicable  Borrower to the Administrative Agent for a borrowing pursuant to Section 2.2(d)  of ABR Loans (if the relevant Letter of Credit is denominated in Dollars) or  Cdn Prime Loans (if the relevant Letter of Credit is denominated in Cdn  Dollars) in the amount of such drawing.   The Borrowing Date with respect to such borrowing shall be the date of  such drawing.


 


                    SECTION  3.6     Obligations Absolute.


 


                              (a)     Each  Borrower’s obligations under this Article III shall be absolute and  unconditional under any and all circumstances and irrespective of any setoff,  counterclaim or defense to payment which such Borrower may have or have had  against the Issuing Lender, any L/C Participant or any beneficiary of a Letter  of Credit.


 


                              (b)     Each  Borrower also agrees that the Issuing Lender and the L/C Participants shall not  be responsible for, and such Borrower’s Reimbursement Obligations under Section  3.5(a) shall not be affected by, among other things, (i) the validity or  genuineness of documents or of any endorsements thereon, even though such documents  shall in fact prove to be invalid, fraudulent or forged, or (ii) any dispute  between or among such Borrower and any beneficiary of any Letter of Credit or  any other party to which such Letter of Credit may be transferred or (iii) any  claims whatsoever of such Borrower against any beneficiary of such Letter of  Credit or any such transferee.


 


                              (c)     The  Issuing Lender shall not be liable for any error, omission, interruption or  delay in transmission, dispatch or delivery of any message or advice, however  transmitted, in 


 


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connection with any Letter of  Credit, except for errors or omissions caused by the Issuing Lender’s gross  negligence or willful misconduct.


 


                              (d)     Each  Borrower agrees that any action taken or omitted by the Issuing Lender under or  in connection with any Letter of Credit issued at the request of such Borrower  or the related drafts or documents, if done in the absence of gross negligence  or willful misconduct and in accordance with any applicable standard of care  specified in the Uniform Commercial Code of the State of New York (or other law  applicable to such Letter of Credit), shall be binding on such Borrower and  shall not result in any liability of the Issuing Lender or any L/C Participant  to such Borrower.  In furtherance of the  foregoing and without limiting the generality thereof, the parties agree that  (i) with respect to documents presented which appear on their face to
be in  substantial compliance with the terms of a Letter of Credit, the Issuing Lender  may, in its sole discretion, either accept and make payment upon such documents  without responsibility for further investigation, regardless of any notice or  information to the contrary, or refuse to accept and make payment upon such  documents if such documents are not in strict compliance with the terms of such  Letter of Credit, (ii) the Issuing Lender may, in its sole discretion, (x)  assert or waive application of Article 17 and Article 45 of the Uniform Customs,  or (y) accept as a draft any written demand or request for payment under a  Letter of Credit even if non-negotiable or not in the form of a draft, and  (iii) with respect to documents presented which the Issuing Lender determines  do not appear on their face to comply with the terms of a Letter of Credit, the  Issuing Lender may, in its sole discretion, approach the applicable Borrower  for a waiver of the discrepancy(ies), but neither requesting
such a waiver from  such Borrower nor receiving such a waiver from such Borrower shall obligate the  Issuing Lender to make payment against such documents.  The applicable Borrower will notify the  Issuing Lender in writing of any objection such Borrower may have to the  Issuing Lender’s issuance or amendment of any Letter of Credit requested by  such Borrower, the Issuing Lender’s honor or dishonor of any presentation under  any such Letter of Credit, or any other action or inaction taken or proposed to  be taken by the Issuing Lender under or in connection with this Agreement or  any such Letter of Credit.  The  applicable Borrower’s notice of objection must be delivered to the Issuing  Lender within five (5) Business Days after such Borrower receives notice of the  action or inaction it objects to.  Any  Borrower’s failure to give such notice of objection within five (5) Business  Days after such Borrower’s actual receipt of notice of the action or inaction
it objects to shall automatically waive such Borrower’s objection, authorize or  ratify the Issuing Lender’s action or inaction, and preclude such Borrower from  raising the objection as a defense or claim against the Issuing Lender.  


 


                    SECTION  3.7     Letter of Credit Payments.


 


                              If  any draft or other demand for payment shall be presented for payment under any  Letter of Credit, the Issuing Lender shall promptly notify the Borrower that  requested such Letter of Credit of the date and amount thereof.  The responsibility of the Issuing Lender to  such Borrower in connection with any draft or other demand for payment  presented for payment under any such Letter of Credit shall, in addition to any  payment obligation expressly provided for in such Letter of Credit, be limited  to determining that the documents (including each draft or other demand for  payment) delivered under such Letter of Credit in connection with such  presentment appear on their face to be in conformity with the terms and  conditions of such Letter of Credit.


 


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                    SECTION  3.8     Applications.


 


                              To  the extent that any provision of any Application related to any Letter of  Credit is inconsistent with the provisions of this Article III, the provisions  of this Article III shall apply.


 


                    SECTION  3.9     Replacement of the Issuing Lender;  Alternate Issuing Lender.


 


                              (a)     The  Issuing Lender may be replaced by one of the other Lenders at any time by  written agreement among the Borrowers, the Administrative Agent, the replaced  Issuing Lender and the successor Issuing Lender.  The Administrative Agent shall notify the Lenders of any such  replacement of the Issuing Lender.  At  the time any such replacement shall become effective, the Borrowers shall,  jointly and severally, pay all unpaid fees accrued for the account of the  replaced Issuing Lender.  From and after  the effective date of any such replacement, (i) the successor Issuing Lender  shall have all the rights and obligations of the Issuing Lender under this  Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term “Issuing Lender” shall be deemed to refer to such  successor or to any previous Issuing Lender, or to such successor and all  previous Issuing Lenders, as the context shall require.  After the replacement of an Issuing Lender  hereunder, the replaced Issuing Lender shall remain a party hereto and shall  continue to have all the rights and obligations of an Issuing Lender under this  Agreement with respect to Letters of Credit issued by it prior to such  replacement, but shall not be required to issue additional Letters of Credit.


 


                              (b)     Kimco  may request that another Lender having a higher credit rating (as rated by  S&P and/or Moody’s) than RBC act as the issuing bank on a Letter of Credit  (such Lender, an “Alternate Issuing Lender”) if (i) the beneficiary of a  proposed Letter of Credit requires that the issuing bank have a credit rating  higher than that of RBC or (ii) as a result of such Alternate Issuing Lender  having a higher credit rating than RBC, Kimco or the applicable Borrower will  obtain from the beneficiary economically superior terms in the specific  transaction in respect of which the Letter of Credit is proposed to be issued; provided  that (i) no Lender shall have any obligation to serve as such Alternate Issuing  Lender, and
(ii) any such Alternate Issuing Lender must agree to such  record-keeping and reporting requirements as the Administrative Agent shall  reasonably require in connection with the Revolving Credit Facility


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


                              To  induce the Administrative Agent, the Issuing Lender, and the Lenders to enter  into this Agreement, to make or maintain the Revolving Credit Loans, and to  issue or participate in the Letters of Credit, Kimco hereby represents and  warrants as to itself only, and not as to any other Loan Party (and, solely  with respect to the representations and warranties contained in Sections 4.3(b)  (only as to itself and not as to its Subsidiaries), 4.4, 4.5(b), 4.10, 4.12,  4.13, 4.14, 4.16 and 4.22 (the “Baseline Representations and Warranties”),  each Borrower hereby represents and warrants as to itself) to the  Administrative Agent, the Issuing Lender, and each Lender that:


 


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                    SECTION  4.1     Financial Condition.


 


                              The  consolidated balance sheet of Kimco and its subsidiaries as at December 31,  2004 and December 31, 2003 and the related consolidated statements of  income and of cash flows for the respective fiscal years ended on such dates,  reported on by PricewaterhouseCoopers, LLP, copies of which have heretofore  been furnished to the Lenders, are complete and correct and present fairly the  consolidated financial condition of Kimco and its subsidiaries as at such  dates, as applicable and the consolidated results of their operations and their  consolidated cash flows for the applicable fiscal year then ended.  The unaudited consolidated balance sheet of  Kimco and its subsidiaries as at September 30, 2005 and the related  unaudited consolidated statements of income
and of cash flows for the  three-month period ended on such date, certified by a Responsible Officer of  Kimco, copies of which have heretofore been furnished to the Lenders, are  complete and correct and present fairly the consolidated financial condition of  Kimco and its subsidiaries as at such date, and the consolidated results of  their operations and their consolidated cash flows for the three-month period  then ended (subject to normal year-end audit adjustments).  All such financial statements, including the  related schedules and notes thereto, have been prepared in accordance with GAAP  applied consistently throughout the periods involved.  Except as set forth on Schedule 4.1, neither Kimco nor any of the  Consolidated Entities has, at the Effective Date, any material Indebtedness,  Guarantee Obligation, contingent liability or liability for taxes, or any  unusual forward or long-term commitment, including any interest rate or foreign  currency swap or exchange transaction, which
is not reflected in the foregoing  statements or in the notes thereto.   Except as set forth on Schedule 4.1, during the period from  December 31, 2004 to and including the Effective Date there has been no  sale, transfer or other disposition by Kimco or any of the Consolidated  Entities of any material part of its business or property and no purchase or  other acquisition of any business or property (including any capital stock of  any other Person) material in relation to the consolidated financial condition  of Kimco and the Consolidated Entities at December 31, 2004.


 


                    SECTION  4.2     No Change.


 


                              Since  December 31, 2004 there has been no development or event nor any prospective  development or event, which has had or could reasonably be expected to have a  Material Adverse Effect.  Without  limiting the foregoing, no dividends or other distributions have been declared,  paid or made upon the Capital Stock of Kimco nor has any of the Capital Stock  of Kimco been redeemed, retired, purchased or otherwise acquired for value by  Kimco or any of its Subsidiaries, except pursuant to transactions not  prohibited under Section 7.3 and the transactions described on Schedule 4.2.


 


                    SECTION  4.3     Corporate Existence; Compliance with Law.


 


                              (a)     Kimco  (i) is duly organized, validly existing and in good standing under the laws of  the jurisdiction of its organization, (ii) has the corporate power and  authority, and the legal right, to own and operate its property, to lease the  property it operates as lessee and to conduct the business in which it is  currently engaged, (iii) is duly qualified as a foreign corporation and in good  standing under the laws of each jurisdiction where its ownership, lease or  operation of property or the conduct of its business requires such  qualification, except to the


 


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extent the failure to be so  qualified and in good standing could not, in the aggregate, reasonably be  expected to have a Material Adverse Effect, and (iv) is in compliance with all  Requirements of Law except to the extent that the failure to comply therewith  could not, in the aggregate, reasonably be expected to have a Material Adverse  Effect.


 


                              (b)     Each  Subsidiary (i) is duly organized, validly existing and in good standing under  the laws of the jurisdiction of its organization, (ii) has the corporate (or  limited partnership or limited liability company or other form of organization,  as applicable) power and authority, and the legal right, to own and operate its  property, to lease the property it operates as lessee and to conduct the  business in which it is currently engaged, (iii) is duly qualified as a foreign  corporation (or limited partnership or limited liability company or other form  of organization, as applicable) and in good standing under the laws of each  jurisdiction where its ownership, lease or operation of property or the conduct  of its business requires such
qualification, and (iv) is in compliance with all  Requirements of Law except, in the case of clauses (i), (ii), (iii) or (iv)  above, as could not, in the aggregate, reasonably be expected to have a  Material Adverse Effect.  Each Borrower  is a Wholly Owned Subsidiary.


 


                    SECTION  4.4     Corporate Power; Authorization; Enforceable  Obligations.


 


                              Each  applicable Loan Party has the corporate (or limited partnership or limited  liability company or other form of organization, as applicable) power and  authority, and the legal right, to make, deliver and perform each Loan Document  to which it is a party and, in the case of each applicable Borrower, to borrow  and request the issuance, amendment, renewal or extension, as the case may be,  of Letters of Credit hereunder, and each applicable Loan Party has taken all  necessary corporate (or limited partnership or limited liability company or  other form of organization, as applicable) action to authorize the execution,  delivery and performance of each Loan Document to which it is a party and, in  the case of each applicable Borrower, the borrowings and requests with respect  to
Letters of Credit on the terms and conditions of this Agreement.  No consent or authorization of, filing with  or other act by or in respect of, any Governmental Authority or any other  Person is required in connection with the borrowings and requests with respect  to Letters of Credit hereunder or with the execution, delivery, performance,  validity or enforceability of any Loan Document.  Each Loan Document has been duly executed and delivered on behalf  of each applicable Loan Party party thereto.   Each Loan Document constitutes a legal, valid and binding obligation of  each applicable Loan Party party thereto enforceable against each such Loan  Party in accordance with its terms, except as enforceability may be limited by  applicable bankruptcy, insolvency, reorganization, moratorium or similar laws  affecting the enforcement of creditors’ rights generally and by general  equitable principles (whether enforcement is sought by proceedings in equity or  at law).


 


                    SECTION  4.5     No Legal Bar.


 


                              (a)     The  execution, delivery and performance of the Loan Documents and the borrowings  and requests for Letters of Credit hereunder and the use of the proceeds  thereof will not violate any Requirement of Law or any Contractual Obligation  of Kimco and will not result in, or require, the creation or imposition of any  Lien on any of its properties or revenues pursuant to any such Requirement of  Law or Contractual Obligation.


 


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                              (b)     The  execution, delivery and performance of the Loan Documents and the borrowings  and requests with respect to Letters of Credit hereunder and the use of the  proceeds thereof will not violate any Requirement of Law or any Contractual  Obligation of the applicable Loan Party other than Kimco and will not result  in, or require, the creation or imposition of any Lien on any of its properties  or revenues pursuant to any such Requirement of Law or Contractual Obligation,  except, in each of the foregoing cases, where the same could not reasonably be  expected to have a Material Adverse Effect.


 


                    SECTION  4.6     No Material Litigation.


 


                              No  litigation, investigation or proceeding of or before any arbitrator or Governmental  Authority is pending or, to the knowledge of Kimco, threatened by or against  Kimco or any of its Subsidiaries or against any of its or their respective  properties or revenues (a) with respect to this Agreement, any of the other  Loan Documents or any of the transactions contemplated hereby, or (b) which  could reasonably be expected to have a Material Adverse Effect.


 


                    SECTION  4.7     No Default.


 


                              Neither  Kimco nor any of its Subsidiaries is in default under or with respect to any of  its Contractual Obligations in any respect which could reasonably be expected  to have a Material Adverse Effect.  No  Default or Event of Default has occurred and is continuing.


 


                    SECTION  4.8     Ownership of Property.


 


                              Each  of Kimco and its Subsidiaries has good record title in fee simple to, or a  valid leasehold interest in, all of its material real property, and good title  to all of its other material property.


 


                    SECTION  4.9     Intellectual Property.


 


                              Kimco  and each of its Subsidiaries owns, or is licensed to use, all trademarks,  tradenames, copyrights, technology, know-how and processes (“Intellectual  Property”) necessary for the conduct of its business as currently conducted  except for those the failure to own or license which could not reasonably be  expected to have a Material Adverse Effect.   No claim has been asserted and is pending by any Person challenging or  questioning the use of any Intellectual Property or the validity or effectiveness  of any Intellectual Property, nor does Kimco know of any valid basis for any  such claim.  The use of such  Intellectual Property by Kimco and its Subsidiaries does not infringe on the  rights of any Person, except for such claims and infringements
that, in the  aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


                    SECTION  4.10     No Burdensome Restrictions; Disclosure.


 


                              No  Requirement of Law or Contractual Obligation of Kimco or any of its Subsidiaries  could reasonably be expected to have a Material Adverse Effect.  Neither the Confidential Memorandum nor any  of the other reports, financial statements, certificates or other information  furnished by or on behalf of Kimco or any Borrower to the Administrative Agent,


 


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the Issuing Lender or any  Lender in connection with the negotiation of this Agreement or delivered  hereunder (as modified or supplemented by other information so furnished)  contains any material misstatement of fact or omits to state any material fact  necessary to make the statements therein, in the light of the circumstances  under which they were made, not misleading; provided that, with respect  to projected financial information, Kimco represents only that such information  was prepared in good faith based upon assumptions believed to be reasonable at  the time.


 


                    SECTION  4.11     Taxes.


 


                              Each  of Kimco and its Subsidiaries has filed or caused to be filed all tax returns  which, to the knowledge of Kimco, are required to be filed and has paid all  taxes shown to be due and payable on said returns or on any assessments made  against it or any of its property and all other taxes, fees or other charges  imposed on it or any of its property by any Governmental Authority (other than  any taxes, fees, or other charges the amount or validity of which are currently  being contested in good faith by appropriate proceedings and with respect to  which reserves in conformity with GAAP have been provided on the books of Kimco  or its Subsidiaries, as the case may be); no tax Lien has been filed, and, to  the knowledge of Kimco, no claim is being asserted, with respect to any such
 tax, fee or other charge.


 


                    SECTION  4.12     Federal Regulations.


 


                              No  part of the proceeds of any Revolving Credit Loan and no Letter of Credit will  be used for “purchasing” or “carrying” any “margin stock” within the respective  meanings of each of the quoted terms under Regulation U of the Board as now and  from time to time hereafter in effect or for any purpose which violates the  provisions of the Regulations of the Board.   If requested by the Administrative Agent, each Borrower will furnish to  the Administrative Agent a statement to the foregoing effect in conformity with  the requirements of FR Form U-1 referred to in said Regulation U.


 


                    SECTION  4.13     ERISA.


 


                              No  Reportable Event has occurred during the five-year period prior to the date on  which this representation is made or deemed made with respect to any Plan, and  each Plan has complied in all material respects with the applicable provisions  of ERISA and the Code.  The present  value of all accrued benefits under each Single Employer Plan maintained by  Kimco or any Commonly Controlled Entity (based on those assumptions used to  fund the Plans) did not, as of the last annual valuation date prior to the date  on which this representation is made or deemed made, exceed the value of the  assets of such Plan allocable to such accrued benefits.  Neither Kimco nor any Borrower nor any  Commonly Controlled Entity has had a complete or partial withdrawal from any  Multiemployer
Plan, and neither Kimco nor any Borrower nor any Commonly  Controlled Entity would become subject to any liability under ERISA if Kimco,  such Borrower or any such Commonly Controlled Entity were to withdraw  completely from all Multiemployer Plans as of the valuation date most closely  preceding the date on which this representation is made or deemed made.  No such Multiemployer Plan is in  Reorganization or Insolvent.  The  present value (determined using actuarial and other assumptions which are  reasonable in respect of the benefits provided and the employees participating)  of the liability of


 


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Kimco, each Borrower and each  Commonly Controlled Entity for post retirement benefits to be provided to their  current and former employees under Plans which are welfare benefit plans (as  defined in Section 3(1) of ERISA) equals or exceeds the assets under all such  Plans allocable to such benefits.


 


                    SECTION  4.14     Investment Company Act; Other Regulations.


 


                              No  Borrower is an “investment company”, or a company “controlled” by an “investment  company”, within the meaning of the Investment Company Act of 1940, as  amended.  No Borrower is subject to  regulation under any Federal or State statute or regulation which limits its  ability to incur Indebtedness.  


 


                    SECTION  4.15     [Intentionally Omitted.]


 


                    SECTION  4.16     Purpose.


 


                              The  proceeds of the Revolving Credit Loans and the Letters of Credit shall be used  by the applicable Borrower for general corporate purposes of such Borrower or  its constituent owners, including Kimco (excluding commercial paper back-up).


 


                    SECTION  4.17     Environmental Matters.


 


                              Each  of the following representations and warranties is true and correct on and as  of the Effective Date except to the extent that the facts and circumstances  giving rise to any such failure to be so true and correct, in the aggregate,  could not reasonably be expected to have a Material Adverse Effect:


 


                              (a)     To  the best knowledge of Kimco, the Properties do not contain, and have not  previously contained, any Materials of Environmental Concern in amounts or  concentrations which constitute or constituted a violation of, or could  reasonably give rise to liability under, Environmental Laws.


 


                              (b)     To  the best knowledge of Kimco, the Properties and all operations at the  Properties are in compliance, and have in the last two years been in  compliance, with all applicable Environmental Laws, and there is no  contamination at, under or about the Properties, or violation of any  Environmental Law with respect to the Properties.


 


                              (c)     Neither  Kimco nor any of its Subsidiaries has received any notice of violation, alleged  violation, non-compliance, liability or potential liability regarding  environmental matters or compliance with Environmental Laws with regard to any  of the Properties, nor does Kimco have knowledge or reason to believe that any  such notice will be received or is being threatened.


 


                              (d)     To  the best knowledge of Kimco, Materials of Environmental Concern have not been  transported or disposed of from the Properties in violation of, or in a manner  or to a location which could reasonably give rise to liability under,  Environmental Laws, nor have any Materials of Environmental Concern been  generated, treated, stored or disposed of at, on or


 


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under any of the Properties in  violation of, or in a manner that could give rise to liability under, any  applicable Environmental Laws.


 


                              (e)     No  judicial proceeding or governmental or administrative action is pending, or, to  the knowledge of Kimco, threatened, under any Environmental Law to which Kimco or  any of its Subsidiaries is or, to the knowledge of Kimco, will be named as a  party with respect to the Properties, nor are there any consent decrees or  other decrees, consent orders, administrative orders or other orders, or other  administrative of judicial requirements outstanding under any Environmental Law  with respect to the Properties.


 


                              (f)     To  the best knowledge of Kimco, there has been no release or threat of release of  Materials of Environmental Concern at or from the Properties, or arising from  or related to the operations of Kimco and its Subsidiaries in connection with  the Properties in violation of or in amounts or in a manner that could give  rise to liability under Environmental Laws.


 


                    SECTION  4.18     Insurance.


 


                              Kimco  and each Subsidiary maintains with insurance companies rated at least A- by  A.M. Best & Co., with premiums at all times currently paid, insurance upon  fixed assets and inventories, including public liability insurance, fire and  all other risks insured against by extended coverage, fidelity bond coverage,  business interruption insurance, and all insurance required by law, all in form  and amounts required by law and customary to the respective natures of their  businesses and properties, except in cases where failure to maintain such  insurance will not have or potentially have a Material Adverse Effect.


 


                    SECTION  4.19     Condition of Properties.


 


                              Each  of the following representations and warranties is true and correct except to  the extent that the facts and circumstances giving rise to any such failure to  be so true and correct, in the aggregate, could not reasonably be expected to  have a Material Adverse Effect:


 


                              (a)     All  of the improvements located on the Properties and the use of said improvements  comply and shall continue to comply in all respects with all applicable zoning  resolutions, building codes, subdivision and other similar applicable laws,  rules and regulations and are covered by existing valid certificates of  occupancy and all other certificates and permits required by applicable laws,  rules, regulations and ordinances or in connection with the use, occupancy and  operation thereof.


 


                              (b)     No  material portion of any of the Properties, nor any improvements located on said  Properties that are material to the operation, use or value thereof, have been  damaged in any respect as a result of any fire, explosion, accident, flood or  other casualty.


 


                              (c)     No  condemnation or eminent domain proceeding has been commenced or to the  knowledge of Kimco is about to be commenced against any portion of any of the  Properties, or any improvements located thereon that are material to the  operation, use or value of said Properties except as set forth and described in  Schedule 4.19.


 


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                              (d)     No  notices of violation of any federal, state or local law or ordinance or order  or requirement have been issued with respect to any Properties.


 


                    SECTION  4.20     Benefit of Loans.


 


                              Kimco  and each Subsidiary are engaged as an integrated corporate group in the  business of acquiring, owning, developing and operating shopping centers and of  providing the required services and other facilities for those integrated  operations.  Kimco and each Subsidiary  require financing on such a basis that funds can be made available to Kimco and  each Subsidiary to the extent required for the continued operation of their  integrated activities and each of them expects to derive benefits, directly or  indirectly, in return for undertaking their respective obligations under this  Agreement and the other Loan Documents, both individually and as members of the  integrated group.


 


                    SECTION  4.21     REIT Status.


 


                              Kimco  is an equity-oriented real estate investment trust under Sections 856 through  860 of the Code.


 


                    SECTION  4.22     Solvency.


 


                              On  the Effective Date and the date of each borrowing or the issuance, amendment,  renewal or extension of each Letter of Credit, after giving effect to the  transactions contemplated by the Loan Documents occurring on such date,  (a) Kimco is Solvent and (b) each applicable Borrower is Solvent.


 


ARTICLE V


 


CONDITIONS


 


                    SECTION  5.1     Conditions to Effectiveness / Effective  Date.


 


                              The  effectiveness of this Agreement and the availability of the Revolving Credit  Facility hereunder, is subject to the satisfaction of the following conditions  (or the waiver of such conditions in accordance with Section 10.1):


 


                              (a)     Amended  and Restated Credit Agreement.  The  Administrative Agent shall have received from each party hereto either  (i) a counterpart of this Agreement signed on behalf of such party or (ii)  written evidence satisfactory to the Administrative Agent (which may include  telecopy transmission of a signed signature page of this Agreement) that such  party has signed a counterpart of this Agreement.


 


                              (b)     Fees  and Expenses.  The Administrative  Agent shall have received payment (which may be proceeds of the initial Loans  under this Agreement) of, for the account of the applicable payee, all fees and  other amounts due and payable on or prior to the Effective Date under or in  connection with this Agreement, including pursuant to the Fee Letters and, to  the extent invoiced, reimbursement or payment of all reasonable third-party  out-of-pocket


 


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expenses required to be  reimbursed or paid by any Borrower hereunder, including the reasonable fees and  disbursements invoiced through the Effective Date of RBC’s special counsel.


 


                              (c)     Legal  Opinions.  The Administrative Agent  shall have received, with a counterpart for the Administrative Agent, each  Lender and the Issuing Lender, the executed legal opinion of counsel to the  Loan Parties (which may be in-house counsel), substantially in the form of  Exhibit D.  The Borrowers and Kimco  hereby request such counsel to deliver such opinions.


 


                              (d)     [Intentionally  Omitted.]  


 


                              (e)     Closing  Certificates.  The Administrative  Agent shall have received certificates from a Responsible Officer of Kimco and  the Borrowers, respectively, dated the Effective Date, (i) confirming compliance  with the conditions specified in this Section 5.1 and in Section 5.2 and that  no consent, approval or waiver under the Core US Credit Agreement or, to the  actual knowledge of such Responsible Officer, any other credit facility of  Kimco or any other Loan Party is required for the execution, delivery and  performance by the Loan Parties of the Loan Documents and (ii) certifying as to  the names and offices of the Persons authorized to sign the Loan Documents to  be delivered pursuant to the terms hereof by Kimco or the Borrowers, as
the  case may be, together with the signatures of each such Person and a certificate  of another Responsible Officer of Kimco or the Borrowers, as the case may be,  certifying as to the name, office, and signature of such first Responsible  Officer.  


 


                              (f)     Organizational  Documents, Etc.  The Administrative  Agent shall have received such documents and certificates as the Administrative  Agent or its counsel may reasonably request relating to the organization,  existence and good standing of Kimco and each Borrower, and the authorization  of Kimco and each Borrower in respect of the transactions contemplated by this  Agreement or the other Loan Documents, all in form and substance reasonably  satisfactory to the Administrative Agent, certified to be true, correct and  complete by a Responsible Officer as of the Effective Date.


 


                              The  Administrative Agent shall notify Kimco, the Issuing Lender, and the Lenders of  the Effective Date, and such notice shall be conclusive and binding.  


 


                    SECTION  5.2     Conditions to Each Extension of Credit.  


 


                              The  agreement of each Lender to make a Loan and of the Issuing Lender to issue,  amend, renew or extend any Letter of Credit, is subject to the satisfaction of  the following conditions precedent:


 


                              (a)     Representations  and Warranties.  Each of the  representations and warranties made by any Loan Party in or pursuant to the  Loan Documents shall be true and correct in all material respects on and as of  such date as if made on and as of such date except for representations and  warranties expressly stated to relate to a specific earlier date, in which case  such representations and warranties were true and correct in all material  respects as of such earlier date.


 


                              (b)     No  Default.  (i) No Default or Event of  Default shall have occurred and be continuing on such date or after giving  effect to the extension of credit requested to be made on


 


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such date and (ii) Kimco would  be in compliance with each financial covenant set forth in paragraphs (a)  through (f) of Section 7.1 if the ratio or amount referred to therein were to  be calculated as of such date (provided that for the purposes of  determining such compliance, Gross Asset Value and Value of Unencumbered  Properties shall be determined for the most recent Test Period as to which a  compliance certificate has been delivered pursuant to Section 6.2(b)).


 


Each borrowing by, or issuance,  renewal, extension or amendment of a Letter of Credit on behalf of, any  Borrower hereunder shall constitute a representation and warranty by the  Borrowers as of the date of such extension of credit (or renewal, extension or  amendment of a Letter of Credit) that the conditions contained in this Section  5.2 have been satisfied.


 


ARTICLE VI


 


AFFIRMATIVE COVENANTS


 


                              So  long as the Commitments remain in effect, any Revolving Credit Loan remains  outstanding and unpaid, any Letter of Credit remains outstanding, any  Reimbursement Obligation remains unpaid in respect of any Letter of Credit, or  any other amount is owing to any Lender, the Issuing Lender or the  Administrative Agent hereunder, Kimco hereby agrees as set forth in Sections  6.1 through 6.8, inclusive, and Sections 6.9(b)(ii) and 6.9(c) and each  Borrower hereby agrees as set forth in Sections 6.9(a) and 6.9(b), that:


 


                    SECTION  6.1     Financial Statements.


 


                              Kimco  shall furnish to the Administrative Agent (with sufficient copies for each  Lender and the Issuing Lender):


 


                              (a)     as  soon as available, but in any event within 90 days after the end of each fiscal  year of Kimco, a copy of the consolidated balance sheet of Kimco and its  subsidiaries as at the end of such year and the related consolidated statements  of income and retained earnings and of cash flows of Kimco and its subsidiaries  for such year, setting forth in each case in comparative form the figures as of  the end of and for the previous year, reported on without a “going concern” or  like qualification or exception, or qualification arising out of the scope of  the audit, by PricewaterhouseCoopers, LLP or other independent certified public  accountants of nationally recognized standing; and


 


                              (b)     as  soon as available, but in any event not later than 45 days after the end of  each of the first three (3) quarterly periods of each fiscal year of Kimco, the  unaudited consolidated balance sheet of Kimco and its subsidiaries as at the  end of such quarter and the related unaudited consolidated statements of income  and retained earnings and of cash flows of Kimco and its subsidiaries for such  quarter and the portion of the fiscal year through the end of such quarter,  setting forth in each case in comparative form the figures for the  corresponding date or period, as the case may be, in the previous year,  certified by a Responsible Officer as being fairly stated in all material  respects (subject to normal year-end audit
adjustments);


 


all such financial statements  shall be complete and correct in all material respects and shall be prepared in  reasonable detail and in accordance with GAAP applied consistently throughout  the


 


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periods reflected therein and  with prior periods (except as approved by such accountants or officer, as the  case may be, and disclosed therein).


 


The Administrative Agent shall  make available to the Lenders (which the Administrative Agent may effect by  electronic posting) the materials furnished to it pursuant to this Section.


 


                    SECTION  6.2     Certificates; Other Information.


 


                              Kimco  shall furnish to the Administrative Agent (with sufficient copies for each  Lender and the Issuing Lender (in the case of clauses (b) and (c) below) or  each relevant Lender or Issuing Lender (in the case of clause (e) below)):


 


                              (a)     [intentionally  omitted];


 


                              (b)     concurrently  with the delivery of the financial statements referred to in Sections 6.1(a)  and 6.1(b), a compliance certificate of a Responsible Officer of Kimco  substantially in the form of Exhibit F;


 


                              (c)     within  ten (10) days after the same are sent, copies of all financial statements and  reports which Kimco sends to its stockholders, and within ten (10) days after  the same are filed, copies of all financial statements, reports or other  documents which Kimco may make to, or file with, the Securities and Exchange  Commission or any successor or analogous Governmental Authority;


 


                              (d)     [intentionally  omitted]; and


 


                              (e)     promptly,  upon request of the Administrative Agent, a list of all Entities, and such  additional financial information, information with respect to any Property and  other information as any Lender or the Issuing Lender may from time to time reasonably  request (through the Administrative Agent).


 


The Administrative Agent shall  make available to the Lenders (which the Administrative Agent may effect by  electronic posting) the materials furnished to it pursuant to this Section.


 


                    SECTION  6.3     Payment of Obligations.


 


                              Kimco  shall pay, discharge or otherwise satisfy at or before maturity or before they  become delinquent, as the case may be, all its obligations of whatever nature,  except (a) where the amount or validity thereof is currently being contested in  good faith by appropriate proceedings and reserves in conformity with GAAP with  respect thereto have been provided on the books of Kimco, or (b) (i)  Non-Recourse Indebtedness and (ii) other obligations which aggregate not more  than $20,000,000, in each case to the extent that Kimco has determined in good  faith that it is in its best interests not to pay or contest such Non-Recourse  Indebtedness or such other obligations, as the case may be.


 


                    SECTION  6.4     Maintenance of Existence, etc.


 


                              Kimco  shall:


 


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                              (a)     Preserve,  renew and keep in full force and effect its corporate existence and take all  reasonable action to maintain all rights, privileges and franchises necessary  or desirable in the normal conduct of its business except as otherwise  permitted pursuant to Section 7.2.


 


                              (b)     Comply  with all Contractual Obligations and Requirements of Law except to the extent  that failure to comply therewith could not, in the aggregate, be reasonably  expected to have a Material Adverse Effect.


 


                    SECTION  6.5     Maintenance of Property; Insurance.


 


                              Kimco  shall keep all property useful and necessary in its business in good working  order and condition; maintain insurance with financially sound and reputable  insurance companies rated at least A- by A.M. Best & Co. on all of its  property in at least such amounts and against at least such risks (but  including in any event public liability, product liability and business  interruption) as are usually insured against in the same general area by  companies engaged in the same or a similar business; and furnish to each Lender  and the Issuing Lender, upon written request, full information as to the  insurance carried.


 


                    SECTION  6.6     Inspection of Property; Books and Records;  Discussions.


 


                              Kimco  shall keep proper books of records and account in which full, true and correct  entries in conformity with GAAP and all Requirements of Law shall be made of  all dealings and transactions in relation to its business and activities; and  permit representatives of any Lender or the Issuing Lender to visit and inspect  any of its properties and examine and make abstracts from any of its books and  records at any reasonable time and as often as may reasonably be desired and to  discuss the business, operations, properties and financial and other condition  of Kimco and its Subsidiaries with officers and employees of Kimco and its  Subsidiaries and with its independent certified public accountants.


 


                    SECTION  6.7     Notices.


 


                              Kimco  shall promptly give notice to the Administrative Agent, the Issuing Lender and  each Lender of:


 


                              (a)     the  occurrence of any Default or Event of Default;


 


                              (b)     any  (i) default or event of default under any Contractual Obligation of Kimco or  any of its Subsidiaries or (ii) litigation, investigation or proceeding which  may exist at any time between Kimco or any of its Subsidiaries and any  Governmental Authority, which in either case, if not cured or if adversely determined,  as the case may be, could reasonably be expected to have a Material Adverse  Effect;


 


                              (c)     any  litigation or administrative or other proceeding affecting Kimco or any of its  Subsidiaries in which the amount involved is $20,000,000 or more and not  covered by insurance or in which material injunctive or similar relief is  sought, or the occurrence in respect of any Borrower or Guarantor of any case,  proceeding, event, or circumstance of the nature set forth in paragraph (f) of  Article VIII;


 


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                              (d)     the  following events, as soon as possible and in any event within 30 days after  Kimco knows or has reason to know thereof: (i) the occurrence or expected  occurrence of any Reportable Event with respect to any Plan, a failure to make  any required contribution to a Plan, the creation of any Lien in favor of the  PBGC or a Plan or any withdrawal from, or the termination, Reorganization or  Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or  the taking of any other action by the PBGC or Kimco or any Commonly Controlled  Entity or any Multiemployer Plan with respect to the withdrawal from, or the  terminating, Reorganization or Insolvency of, any Plan; and


 


                              (e)     any  development or event which has had or could reasonably be expected to have a  Material Adverse Effect.


 


Each notice pursuant to this  Section 6.7 shall be accompanied by a statement of a Responsible Officer of  Kimco setting forth details of the occurrence referred to therein and stating  what action Kimco proposes to take with respect thereto.


 


The Administrative Agent shall  promptly forward to the Lenders (which the Administrative Agent may effect by  electronic posting) any written notice hereunder furnished to it pursuant to  this Section.


 


                    SECTION  6.8     Environmental Laws.


 


                              Kimco  shall:


 


                              (a)     Comply  with, and use its best efforts to ensure compliance by all tenants and  subtenants, if any, with, all applicable Environmental Laws and obtain and  comply with and maintain, and use its best efforts to ensure that all tenants  and subtenants obtain and comply with and maintain, any and all licenses,  approvals, notifications, registrations or permits required by applicable  Environmental Laws, except to the extent that failure to do so could not be  reasonably expected to have a Material Adverse Effect.


 


                              (b)     Conduct  and complete all investigations, studies, sampling and testing, and all  remedial, removal and other actions required under Environmental Laws and  promptly comply in all material respects with all lawful orders and directives  of all Governmental Authorities regarding Environmental Laws, except to the  extent that (i) the same are being contested in good faith by appropriate  proceedings and the pendency of such proceedings could not be reasonably  expected to have a Material Adverse Effect or (ii) Kimco has determined in good  faith that contesting the same is not in the best interests of Kimco and its  Subsidiaries and the failure to contest the same could not be reasonably  expected to have a Material Adverse Effect.


 


                              (c)     Defend,  indemnify and hold harmless the Administrative Agent, the Issuing Lender and  each Lender, and their respective employees, agents, officers and directors,  from and against any claims, demands, penalties, fines, liabilities,  settlements, damages, costs and expenses (whether arising pre-judgment or  post-judgment) of whatever kind or nature known or unknown, contingent or  otherwise, arising out of, or in any way relating to the violation of,  noncompliance with or liability under any Environmental Laws applicable to the operations  of Kimco, its Subsidiaries or the Properties, or any orders, requirements or  demands of


 


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Governmental Authorities  related thereto, including attorney’s and consultant’s fees, investigation and  laboratory fees, response costs, court costs and litigation expenses, except to  the extent that any of the foregoing arise out of the gross negligence or  willful misconduct of the party seeking indemnification therefor.  Notwithstanding anything to the contrary in  this Agreement, this indemnity shall continue in full force and effect  regardless of the termination of this Agreement.


 


                    SECTION  6.9     Baseline Conditions.


 


                              (a)     Each  Borrower shall at all times comply with the Baseline Conditions in all material  respects.


 


                              (b)     In  the event any Borrower fails, at any time, to comply with any of the Baseline  Conditions in any material respect or fails to pay any amount payable hereunder  within five (5) Business Days after such amount becomes due in accordance with  the terms hereof (a “Non-complying Borrower”), (i) one or more of the  other Borrowers shall promptly prepay any and all Loans to and any other  obligations under any of the Loan Documents of such Non-complying Borrower (and  cash collateralize any Letters of Credit issued for its account unless Kimco is  a co-applicant thereof), or (ii) Kimco or any other Borrower that can satisfy  each of the Baseline Conditions shall assume (pursuant to a written agreement  reasonably satisfactory to the
Administrative Agent) any and all Loans to and  any other obligations (including in respect of any such Letters of Credit)  under any of the Loan Documents of such Non-complying Borrower.


 


                              (c)     Kimco  shall cause each Subsidiary Guarantor to at all times comply with the Baseline  Conditions in all material respects and in the event any Subsidiary Guarantor  fails, at any time, to comply with any of the Baseline Conditions in any  material respect, such Subsidiary Guarantor shall (i) notwithstanding any  provision of this Agreement to the contrary, cease to be an Obligated Property  Owner for all purposes of this Agreement, and (ii) continue as a Subsidiary  Guarantor unless released as provided in Section 10.10(c).


 


ARTICLE VII


 


NEGATIVE COVENANTS


 


                              So  long as the Commitments remain in effect, any Revolving Credit Loan remains  outstanding and unpaid, any Letter of Credit remains outstanding, any  Reimbursement Obligation remains unpaid in respect of any Letter of Credit, or  any other amount is owing to any Lender, the Issuing Lender or the  Administrative Agent hereunder, Kimco hereby agrees that:


 


                    SECTION  7.1     Financial Covenants.


 


                              Kimco  shall not directly or indirectly:


 


                              (a)     Total  Indebtedness Ratio.  Permit, at the  last day of any Test Period, the ratio of (i) Total Indebtedness as of such day  to (ii) Gross Asset Value as of such day to exceed 0.60 to 1.00.


 


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                              (b)     Total  Secured Indebtedness Ratio.  Permit,  at the last day of any Test Period, the ratio of (i) Total Secured Indebtedness  as of such day to (ii) Gross Asset Value as of such day to exceed 0.25 to 1.00.


 


                              (c)     Minimum  Net Worth.  Permit, at the last day  of any fiscal quarter of Kimco, Net Worth to be less than an amount equal to  the sum of (i) $1,750,000,000 plus (ii) 75% of the aggregate  proceeds received by Kimco (net of customary related fees and expenses) in  connection with any offering of Capital Stock of Kimco consummated after July  26, 2005.


 


                              (d)     Unencumbered  Asset Value Ratio.  Permit, at the  last day of any Test Period, the ratio of (i) Total Recourse Indebtedness as of  such day to (ii) Unencumbered Asset Value as of such day, to exceed 0.60 to  1.0.


 


                              (e)     Unsecured  Interest Expense Ratio.  Permit, for  any Test Period, the ratio of (i) Unencumbered Assets NOI for such period to  (ii) Total Unsecured Interest Expense for such period to be less than 2.0 to  1.0.


 


                              (f)     Fixed  Charge Coverage Ratio.  Permit, for  any Test Period, the ratio of Total Adjusted EBITDA for such period to Total  Debt Service for such period to be less than 1.75 to 1.0.  Solely for the purpose of calculating the  ratio in this clause (f), Total Adjusted EBITDA (i) shall include cash flow  distributions (other than distributions in respect of capital transactions)  from Noncontrolled Entities (“Noncontrolled Entity Operating Cash Flow”),  provided that Noncontrolled Entity Operating Cash Flow distributed during the  most recent twelve-month period in respect of any Noncontrolled Entity shall be  included, without duplication, only to the extent of 50% of the amount of such  distributions made in such
twelve-month period, and (ii) shall be increased by  the amounts excluded pursuant to clauses (iv), (v) and (vi) of the definition  of the term “Total Adjusted EBITDA”.


 


                              Solely  for the purposes of this Section 7.1:   direct or indirect reference to EBITDA, NOI, Indebtedness and debt  service (and items thereof, when applicable) with respect to the Entities, when  included, shall be included only to the extent of the Ownership Percentage  therein, except as otherwise specifically provided.


 


                    SECTION  7.2     Limitation on Certain Fundamental Changes.


 


                              Neither  Kimco nor any of its Subsidiaries shall, directly or indirectly: (a) enter  into any merger (except as described in Schedule 7.2), consolidation or  amalgamation, (b) liquidate, wind up or dissolve itself (or suffer any  liquidation or dissolution), or (c) convey, sell, lease, assign, transfer  or otherwise dispose of, all or a substantial portion of its property, business  or assets (each such transaction referred to in the preceding clauses (a), (b)  and (c), a “Capital Transaction”), unless (i) such Capital  Transaction does not involve all or a substantial portion of the property,  business or assets owned or leased by Kimco and its Subsidiaries determined on  a consolidated basis with respect to Kimco and its Subsidiaries taken as a
 whole, (ii) there is no Default or Event of Default, before and after  giving effect to such Capital Transaction (including any changes resulting from  recharacterization of Unencumbered Property), and (iii) without limiting  the foregoing, Kimco is in compliance with all covenants under Section 7.1  after giving effect to such Capital Transaction (including any changes  resulting


 


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from recharacterization of  Unencumbered Property), and would have been in compliance therewith for the  most recent Test Period if such Capital Transaction had been given effect  (including any changes resulting from recharacterization of Unencumbered  Property) during such Test Period; provided that Kimco may not engage in  a Capital Transaction other than a merger as to which it is the surviving  entity.


 


                    SECTION  7.3     Limitation on Restricted Payments.


 


                              Neither  Kimco nor any of its Subsidiaries shall, directly or indirectly, unless  otherwise required in order to maintain Kimco’s status as a real estate  investment trust, declare or pay any dividend (other than dividends payable  solely in the same class of Capital Stock) on, or make any payment on account  of, or set apart assets for a sinking or other analogous fund for, the  purchase, redemption, defeasance, retirement or other acquisition of, any  shares of any class of Capital Stock of Kimco or any warrants or options to  purchase any such Capital Stock, whether now or hereafter outstanding, or make  any other distribution in respect thereof, or enter into any transaction that  has a substantially similar effect to any of the foregoing, either directly or  indirectly,
whether in cash or property or in obligations of Kimco or any  Subsidiary (collectively, “Restricted Payments”); provided that  notwithstanding the foregoing, (i) during any period of four (4) consecutive  fiscal quarters of Kimco on a cumulative basis, Kimco may make Restricted  Payments in an aggregate amount not to exceed the greater of (a) an amount  equal to 95% of FFO for such period on a cumulative basis, and (b) the amount  of dividends required to be paid by Kimco in order to maintain its status as a  real estate investment trust under the Code, and (ii) dividends and  distributions may be paid by any Subsidiary to Kimco, to any other Subsidiary  or to any other Guarantor, if any.


 


                              Solely  for the purpose of this Section 7.3, all references to shares in the definition  of the term “Capital Stock” shall be to common shares only.


 


                    SECTION  7.4     Limitation on Investments, Loans and  Advances.


 


                              Neither  Kimco nor any of its Subsidiaries shall, directly or indirectly, make any  advance, loan, extension of credit or capital contribution to any Person, or  purchase any stock, bonds, notes, debentures or other securities of or any  assets constituting a business unit of, or otherwise make any investment in,  any Person, or acquire or otherwise make any investment in any real property  (collectively, “Investments”), if, after giving effect thereto, the  aggregate amount of Investments (valued at cost) made in Noncontrolled Entities  from and after the date of this Agreement would exceed 25% of Gross Asset  Value.


 


                    SECTION  7.5     Limitation on Transactions with Affiliates.


 


                              Neither  Kimco nor any of its Subsidiaries shall, directly or indirectly, enter into any  transaction, including any purchase, sale, lease or exchange of property or the  rendering of any service, with any Affiliate unless (a) no Default or Event of  Default would occur as a result thereof and (b) such transaction is (i) in the  ordinary course of the business of any Loan Party that is a party thereto and  (ii) upon fair and reasonable terms no less favorable to any Loan Party that is  a party thereto or is affected thereby than would be obtained in a comparable  arm’s length transaction with a Person that is not an Affiliate.


 


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                    SECTION  7.6     Limitation on Changes in Fiscal Year.


 


                              Kimco  shall not cause or permit its fiscal year to end on a day other than December  31, unless otherwise required by any applicable law, rule or regulation.


 


                    SECTION  7.7     Limitation on Lines of Business; Issuance  of Commercial Paper; Creation of Subsidiaries; Negative Pledges; Swap Agreements.


 


                              Neither  Kimco nor any of its Subsidiaries shall, directly or indirectly:


 


                              (a)     Engage  in activities other than real estate business and real estate related business  activities, and in activities permitted for real estate investment trusts under  the Code (including through taxable REIT subsidiaries).


 


                              (b)     Issue  any commercial paper in an aggregate principal amount exceeding the aggregate  unused and available commitments under any revolving credit facility (other  than the Commitments hereunder) entered into by Kimco or any Borrower and not  prohibited by this Agreement.  For the  purposes of this paragraph, commitments shall be deemed to be available to the  extent that, on any date of determination, assuming timely delivery of a  borrowing notice by Kimco or the applicable Borrower, the lender(s) thereunder  would be obligated to fund loans pursuant thereto.


 


                              (c)     Enter  into with any Person, or suffer to exist, any agreement, other than (i) this  Agreement and the other Loan Documents, (ii) the Core US Credit Agreement or  (iii) any agreements governing any purchase money Liens, Financing Leases or  mortgage financings not prohibited by this Agreement (in which cases, any  prohibition or limitation referred to below shall only be effective against the  assets financed thereby) which, in any such case, prohibits or limits the  ability of Kimco or any of its Subsidiaries to create, incur, assume or suffer  to exist any Lien upon any of its property, assets or revenues, whether now  owned or hereafter acquired.


 


                              (d)     Enter  into any Swap Agreement, except Swap Agreements entered into in the ordinary  course of business (not for purposes of speculation) to hedge or mitigate  risks, including those related to interest rates or currency exchange rates, to  which Kimco or such Subsidiary is exposed in the conduct of its business or the  management of its liabilities.


 


ARTICLE VIII


 


EVENTS OF DEFAULT


 


                              If  any of the following events shall occur and be continuing:


 


                              (a)     Any  Borrower shall fail to pay any principal of any Revolving Credit Loan or any  Reimbursement Obligation when due in accordance with the terms thereof or  hereof; or any Borrower shall fail to pay any interest on any Revolving Credit  Loan, any Reimbursement Obligation or any other amount payable hereunder,  within five (5) Business Days after any such interest or other amount becomes  due in accordance with the terms thereof or hereof; or


 


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                              (b)     Any  representation or warranty made or deemed made by any Borrower or Kimco herein  or in any other Loan Document or which is contained in any certificate,  document or financial or other statement furnished by it at any time under or  in connection with this Agreement or any other Loan Document shall prove to  have been incorrect in any material respect on or as of the date made or deemed  made or furnished; or


 


                              (c)     There  shall be any default in the observance or performance of any agreement  contained in Section 6.7(a) or Article VII; or


 


                              (d)     Any  Borrower or Kimco shall default in the observance or performance of any other  agreement contained in this Agreement or any other Loan Document (other than as  provided in paragraphs (a) through (c) of this Article), and such default,  shall continue unremedied for a period of 30 days after notice from the  Administrative Agent, the Issuing Lender or the Required Lenders; or


 


                              (e)     An  Event of Default under (and as defined in) the Core US Credit Agreement shall  occur and be continuing or Kimco or any of its Subsidiaries shall (i) default  in making any payment of any principal of any Indebtedness (including any  Guarantee Obligation, but excluding (x) any Revolving Credit Loans or  Reimbursement Obligations (which shall be governed by clause (a) above) and  (y) any Non-Recourse Indebtedness) on the scheduled or original due date  with respect thereto; or (ii) default in making any payment of any interest on  any such Indebtedness beyond the period of grace, if any, provided in the  instrument or agreement under which such Indebtedness was created; or (iii)  default in the observance or performance of any other
agreement or condition  relating to any such Indebtedness or contained in any instrument or agreement  evidencing, securing or relating thereto, or any other event shall occur or  condition exist, the effect of which default or other event or condition is to  cause, or to permit the holder or beneficiary of such Indebtedness (or a  trustee or agent on behalf of such holder or beneficiary) to cause, with the  giving of notice if required, such Indebtedness to become due prior to its  stated maturity or (in the case of any such Indebtedness constituting a  Guarantee Obligation) to become payable; provided that a default, event  or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall  not at any time constitute an Event of Default under this Agreement unless, at  such time, one or more defaults, events or conditions of the type described in  clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be  continuing with respect to Indebtedness the outstanding
principal amount of  which exceeds in the aggregate $25,000,000; provided, further,  that a default, event or condition described in clause (i), (ii) or (iii) of  this paragraph (e) shall not at any time constitute an Event of Default under  this Agreement if such default, event or condition relates solely to any  Borrower and/or its observance or performance of its obligations under this  Agreement or in any other Loan Document; or


 


                              (f)       (i) Any Borrower or Kimco shall commence any case, proceeding or other action  (A) under any existing or future law of any jurisdiction, domestic or foreign,  relating to bankruptcy, insolvency, reorganization or relief of debtors,  seeking to have an order for relief entered with respect to it, or seeking to  adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,  adjustment, winding-up, liquidation, dissolution, composition or other relief with  respect to it or its debts, or (B) seeking appointment of a receiver, trustee,  custodian, conservator or other similar official for it or for all or any  substantial part of its assets,


 


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or any Borrower or Kimco shall  make a general assignment for the benefit of its creditors; or (ii) there shall  be commenced against any Borrower or Kimco any case, proceeding or other action  of a nature referred to in clause (i) above which (A) results in the entry of  an order for relief or any such adjudication or appointment or (B) remains  undismissed, undischarged or unbonded for a period of 60 days; or (iii) there  shall be commenced against any Borrower or Kimco any case, proceeding or other  action seeking issuance of a warrant of attachment, execution, distraint or  similar process against all or any substantial part of its assets which results  in the entry of an order for any such relief which shall not have been vacated,  discharged, or stayed or bonded pending appeal within 60 days from the entry  thereof; or (iv) any Borrower or Kimco shall take any action in furtherance of,  or indicating its consent to, approval of, or acquiescence in, any
of the acts  set forth in clause (i), (ii), or (iii) above; or (v) any Borrower or Kimco  shall generally not, or shall be unable to, or shall admit in writing its  inability to, pay its debts as they become due; or


 


                              (g)       (i) Any Person shall engage in any “prohibited transaction” (as defined in  Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any  “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether  or not waived, shall exist with respect to any Plan or any Lien in favor of the  PBGC or a Plan shall arise on the assets of Kimco or any Commonly Controlled  Entity, (iii) a Reportable Event shall occur with respect to, or proceedings  shall commence to have a trustee appointed (or a trustee shall be appointed) to  administer, or to terminate, any Single Employer Plan, which Reportable Event  or commencement of proceedings or appointment of a trustee is, in the  reasonable opinion of the Majority
Lenders, likely to result in the termination  of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan  shall terminate for purposes of Title IV of ERISA, (v) Kimco or any Commonly  Controlled Entity shall, or is, in the reasonable opinion of the Majority  Lenders, likely to, incur any liability in connection with a withdrawal from,  or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other  event or condition shall occur or exist with respect to a Plan; and in each  case in clauses (i) through (vi) above, such event or condition, together with  all other such events or conditions, if any, could reasonably be expected to  have a Material Adverse Effect; or


 


                              (h)     One  or more judgments or decrees shall be entered against Kimco or any Entity  involving in the aggregate a liability (not paid or fully covered by insurance)  of $20,000,000 or more (excluding Non-Recourse Indebtedness), and all such  judgments or decrees shall not have been vacated, discharged, stayed or bonded  pending appeal within 60 days from the entry thereof; or


 


                              (i)     The  guarantee by Kimco set forth in Article XI at any time shall cease, for any  reason, to be in full force and effect or Kimco shall so assert; or


 


                              (j)     Kimco  shall cease, for any reason, to maintain its status as an equity-oriented real  estate investment trust under Sections 856 through 860 of the Code; or


 


                              (k)     At  any time Kimco or any of its Subsidiaries shall be required to take any actions  in respect of environmental remediation and/or environmental compliance, the  aggregate expenses, fines, penalties or other charges with respect to which are  recourse to Kimco and, in the judgment of the Majority Lenders, could  reasonably be expected to exceed $20,000,000;


 


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provided  that any such remediation or compliance shall not be taken into consideration  for the purposes of determining whether an Event of Default has occurred  pursuant to this paragraph (k) if (i) such remediation or compliance is being  contested by Kimco or the applicable Subsidiary in good faith by appropriate  proceedings or (ii) such remediation or compliance is satisfactorily completed  within 90 days from the date on which Kimco or the applicable Subsidiary  receives notice that such remediation or compliance is required, unless such  remediation or compliance cannot reasonably be completed within such 90 day  period in which case such time period shall be extended for a period of time  reasonably necessary to perform such compliance or remediation using diligent  efforts (not to exceed 180 days if the continuance of such remediation or  compliance beyond such 180 day period, in the judgment of the Majority Lenders,  could reasonably be
expected to have a Material Adverse Effect); or


 


                              (l)     A  Change in Control shall occur;


 


then, and in any such event,  (A) if such event is an Event of Default specified in paragraph (f) above with  respect to Kimco, automatically the Commitments shall immediately terminate and  the Revolving Credit Loans hereunder (with accrued interest thereon) and all  other amounts owing under this Agreement (including all amounts of L/C  Obligations, whether or not the beneficiaries of the then outstanding Letters  of Credit shall have presented the documents required thereunder) and the Notes  shall immediately become due and payable, and (B) if such event is any other  Event of Default, subject to the last paragraph of this Article VIII, either or  both of the following actions may be taken: (i) the Administrative Agent may,  or upon the request of the Majority Lenders the Administrative Agent shall, by  notice to the Borrowers, declare the Commitments to be terminated forthwith,  whereupon the Commitments shall immediately terminate; and (ii) the
Administrative Agent may, or upon the request of the Majority Lenders the  Administrative Agent shall, by notice to the Borrowers, declare the Revolving  Credit Loans hereunder (with accrued interest thereon) and all other amounts  owing under this Agreement (including all amounts of L/C Obligations, whether  or not the beneficiaries of the then outstanding Letters of Credit shall have  presented the documents required thereunder) and the Notes to be due and  payable forthwith, whereupon the same shall immediately become due and payable.


 


                              With  respect to all Letters of Credit with respect to which presentment for honor  shall not have occurred at the time of an acceleration pursuant to the  preceding paragraph, the applicable Borrower shall at such time deposit in a  cash collateral account opened by and under the exclusive dominion and control  of the Administrative Agent an amount equal to the aggregate then undrawn and  unexpired amount of such Letters of Credit.   Each such depositing Borrower hereby grants to the Administrative Agent,  for the benefit of the Issuing Lender and the L/C Participants, a security  interest in such cash collateral to secure all obligations of such Borrower  under this Agreement and the other Loan Documents.  Amounts held in such cash collateral account shall be applied by
the Administrative Agent to the payment of drafts or other demands for payment  drawn under such Letters of Credit, and the unused portion thereof after all  such Letters of Credit shall have expired or been fully drawn upon, if any,  shall be applied to repay other obligations of the Borrowers hereunder and  under the other Loan Documents.  After  all such Letters of Credit shall have expired or been fully drawn upon, all  Reimbursement Obligations shall have been satisfied and all other obligations  of the Borrowers hereunder and under the other Loan Documents shall have been  paid in full, the balance, if any, in such cash


 


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collateral account shall be  returned to the applicable Borrower or to whomsoever may be lawfully entitled  thereto.  The Borrowers shall execute  and deliver to the Administrative Agent, for the account of the Issuing Lender  and the L/C Participants, such further documents and instruments as the  Administrative Agent may request to evidence the creation and perfection of the  within security interest in such cash collateral account.


 


                              Except  as expressly provided above in this Article, presentment, demand, protest and  all other notices of any kind are hereby expressly waived.


 


                              If  an event occurs with respect to a Borrower that would constitute a Default  hereunder that is capable of cure by the release of such Person as a Borrower  hereunder and under the other Loan Documents, then such event shall not  constitute a Default hereunder (or such Default shall be deemed waived) if,  within two (2) Business Days after the Administrative Agent has given notice to  Kimco of the occurrence of such event, (a) Kimco has delivered to the  Administrative Agent a request for the release of such Borrower and describing  the event constituting such Default in such detail as is reasonably acceptable  to the Administrative Agent, (b) all Loans made to such Borrower, together  with all accrued and unpaid interest thereon, shall have been repaid in full,
(c) any other amount owing to any Lender, the Issuing Lender or the  Administrative Agent by such Borrower hereunder or under any other Loan  Document shall have been paid in full, (d) all Letters of Credit issued at  the request of such Borrower shall have expired or been terminated, and (e) after  giving effect to the release of such Borrower, there shall be at least one (1)  Borrower remaining as such hereunder, and provided that (i) there shall  be no other Default or Event of Default, before and after giving effect to such  release (including any changes resulting from recharacterization of  Unencumbered Property), and (ii) Kimco shall be in compliance with all  covenants under Section 7.1 after giving effect to such release (including any  changes resulting from recharacterization of Unencumbered Property), and would  have been in compliance therewith for the most recent Test Period if such  release had been given effect (including any changes resulting from
recharacterization of Unencumbered Property) during such Test Period.  Upon compliance with all the provisions of  the foregoing sentence, such Borrower shall be released from its obligations  (and shall no longer be entitled to any benefits) hereunder and under the other  Loan Documents.


 


                              If  an event occurs with respect to a Guarantor (other than Kimco) that would  constitute a Default hereunder that does not result in a Material Adverse  Effect and that is capable of cure by the release of such Person as a Guarantor  hereunder and under the other Loan Documents, then such event shall not  constitute a Default hereunder (or such Default shall be deemed waived) if,  within two (2) Business Days after the Administrative Agent has given notice to  Kimco of the occurrence of such event, Kimco has delivered to the  Administrative Agent a request for the release of such Guarantor and describing  the event constituting such Default in such detail as is reasonably acceptable  to the Administrative Agent and, after giving effect to the release of such  Guarantor, no more
than ten (10) Guarantors shall have been released hereunder,  and provided that (a) there shall be no other Default or Event of  Default, before and after giving effect to such release (including any changes  resulting from recharacterization of Unencumbered Property), and (b) Kimco  shall be in compliance with all covenants under Section 7.1 after giving effect  to such release (including any changes resulting from recharacterization of  Unencumbered Property), and would have been in compliance therewith for the  most recent Test Period if such release had been given effect (including any


 


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changes resulting from  recharacterization of Unencumbered Property) during such Test Period.  Upon compliance with all the provisions of  the foregoing sentence, such Guarantor shall be released from its obligations  (and shall no longer be entitled to any benefits) hereunder and under the other  Loan Documents.


 


ARTICLE IX


 


THE AGENTS


 


                    SECTION  9.1     The Agents.  


 


                              For  purposes of this Section 9.1 and Section 10.6, the term “Related Parties”  shall mean, with respect to any specified Person, (i) any Person that directly,  or indirectly through one or more intermediaries, Controls, is Controlled by,  or is under common Control with such specified Person, and (ii) the respective  directors, officers, employees, agents and advisors of such specified Person  and of any other Person referred to in the preceding clause (i).


 


                              (a)     Each  of the Lenders and the Issuing Lender hereby irrevocably appoints the  Administrative Agent as its agent and authorizes the Administrative Agent to  take such actions on its behalf and to exercise such powers as are delegated to  the Administrative Agent by the terms of this Agreement and the other Loan Documents,  together with such actions and powers as are reasonably incidental thereto.


 


                              (b)     The  bank serving as the Administrative Agent hereunder shall have the same rights  and powers in its capacity as a Lender as any other Lender and may exercise the  same as though it were not the Administrative Agent, and such bank and each  Person that directly, or indirectly through one or more intermediaries,  Controls or is Controlled by or is under common Control with such bank (an “Administrative  Agent Affiliate”) may accept deposits from, lend money to and generally  engage in any kind of business with any Loan Party or any Subsidiary or other  Affiliate thereof as if it were not the Administrative Agent hereunder.


 


                              (c)     The  Administrative Agent shall not have any duties or obligations except those  expressly set forth herein.  Without limiting  the generality of the foregoing, (i) the Administrative Agent shall not be  subject to any fiduciary or other implied duties, regardless of whether a  Default or Event of Default has occurred and is continuing, (ii) the  Administrative Agent shall not have any duty to take any discretionary action  or exercise any discretionary powers, except discretionary rights and powers  expressly contemplated hereby that the Administrative Agent is required to  exercise in writing as directed by the Required Lenders (or such other number  or percentage of the Lenders as shall be necessary under the circumstances as
provided herein), and (iii) except as expressly set forth herein, the  Administrative Agent shall not have any duty to disclose, and shall not be  liable for the failure to disclose, any information relating to Kimco or any of  its Subsidiaries that is communicated to or obtained by the bank serving as  Administrative Agent or any of its Administrative Agent Affiliates in any  capacity.  The Administrative Agent  shall not be liable for any action taken or not taken by it with the consent or  at the request of the Required Lenders (or such other number or percentage of  the Lenders as shall be necessary under the circumstances as provided herein)  or in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not  to


 


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have knowledge of any Default  or Event of Default other than nonpayment of principal or interest unless and  until written notice thereof is given to the Administrative Agent by Kimco or a  Lender, and the Administrative Agent shall not be responsible for or have any  duty to ascertain or inquire into (i) any statement, warranty or  representation made in or in connection with this Agreement or any other Loan  Document, (ii) the contents of any certificate, report or other document  delivered hereunder or under any other Loan Document or in connection herewith  or therewith, (iii) the performance or observance of any of the covenants,  agreements or other terms or conditions set forth herein or in any other Loan  Document, (iv) the validity, enforceability, effectiveness or genuineness  of this Agreement, any other Loan Document, or any other agreement, instrument  or document, or (v) the satisfaction of any condition set forth in
Article V or elsewhere herein, other than to confirm receipt of items  expressly required to be delivered to the Administrative Agent.  


 


                              (d)     The  Administrative Agent shall be entitled to rely upon, and shall not incur any  liability for relying upon, any notice, request, certificate, consent,  statement, instrument, document or other writing believed by it to be genuine  and to have been signed or sent by the proper Person.  The Administrative Agent also may rely upon any statement made to  it orally or by telephone and believed by it to be made by the proper Person,  and shall not incur any liability for relying thereon.  The Administrative Agent may consult with  legal counsel (who may be counsel for Kimco or the Borrowers), independent  accountants and other experts selected by it, and shall not be liable for any  action taken or not taken by it in accordance with the advice
of any such  counsel, accountants or experts.


 


                              (e)     The  Administrative Agent may perform any and all its duties and exercise its rights  and powers by or through any one or more sub-agents appointed by the  Administrative Agent.  The  Administrative Agent and any such sub-agent may perform any and all its duties  and exercise its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding  paragraphs shall apply to any such sub-agent and to the Related Parties of the  Administrative Agent and any such sub-agent, and shall apply to their  respective activities in connection with the syndication of the credit  facilities provided for herein as well as activities as Administrative Agent.


 


                              (f)     Subject  to the appointment and acceptance of a successor Administrative Agent as  provided in this paragraph, the Administrative Agent may resign at any time by  notifying the Lenders, the Issuing Lender and Kimco.  By the Required Lenders’ giving at least thirty (30) Business  Days prior written notice to the Administrative Agent and Kimco, the  Administrative Agent may be removed, by action of the Required Lenders  (excluding the bank serving as Administrative Agent (the “Agent Bank”)),  (i) at any time for gross negligence or willful misconduct, as determined by  the Required Lenders (excluding for such determination the Agent Bank), or (ii)  in the event that the Agent Bank, in its capacity as a Lender, shall have
assigned all of its outstanding Commitments, Loans, and its Commitment  Percentage of the L/C Obligations to another bank, financial institution or  other entity pursuant to Section 10.6, and at the end of such thirty (30) Business  Day period the Agent Bank shall be deemed discharged from its duties and  obligations as Administrative Agent hereunder and under any other Loan  Documents, provided that it is a condition to the removal of the  Administrative Agent under clause (ii) above in the circumstance in which the  Agent Bank is the Issuing Lender hereunder, that all outstanding Letters of  Credit issued by the Issuing Lender (including Letters of Credit


 


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issued by any Affiliate of the  Agent Bank) hereunder shall be returned to the Issuing Lender for cancellation,  that the Issuing Lender shall be reimbursed for all drafts or other demands for  payment under the Letters of Credit that have not yet been reimbursed by the  Borrowers or paid by the L/C Participants (except to the extent of the  Commitment Percentage of L/C Obligations assigned by the Agent Bank), that all  fees and expenses accrued and payable to the Issuing Lender be paid, and that  the Issuing Lender shall be deemed to be replaced under Section 3.9 hereof.  Upon any such resignation or removal, the  Required Lenders shall have the right, in consultation with Kimco, to appoint a  successor. In the case of resignation by the Administrative Agent, if no  successor shall have been so appointed by the Required Lenders and shall have  accepted such appointment within 30 days after the retiring Administrative  Agent gives notice of its
resignation, then the retiring Administrative Agent  may, on behalf of the Lenders and the Issuing Lender, appoint a successor  Administrative Agent which shall be a bank organized under the laws of Canada  with an office in Toronto, Canada and New York, New York, or a Person that  directly, or indirectly through one or more intermediaries, Controls or is  Controlled by or is under common Control with any such bank.  Upon the acceptance of its appointment as  Administrative Agent hereunder by a successor to a retired Administrative  Agent, such successor shall succeed to and become vested with all the rights,  powers, privileges and duties of the retiring Administrative Agent, and the  retiring Administrative Agent shall be discharged from its duties and  obligations hereunder and under any other Loan Documents.  The fees payable by the Borrowers to a  successor Administrative Agent shall be the same as those payable to its  predecessor unless otherwise agreed between the Borrowers and such
successor.  After the Administrative  Agent’s resignation or removal hereunder, the provisions of this Article,  including Section 9.2, shall continue in effect for the benefit of such  retiring Administrative Agent, its sub-agents and their respective Related  Parties in respect of any actions taken or omitted to be taken by any of them  while it was acting as Administrative Agent.


 


                              (g)     Each  Lender acknowledges that it has, independently and without reliance upon the  Administrative Agent or any other Lender and based on such documents and  information as it has deemed appropriate, made its own credit analysis and  decision to enter into this Agreement.   Each Lender also acknowledges that it will, independently and without  reliance upon the Administrative Agent or any other Lender and based on such  documents and information as it shall from time to time deem appropriate,  continue to make its own decisions in taking or not taking action under or  based upon this Agreement, any other Loan Document, any related agreement or  any document furnished hereunder or thereunder.


 


                    SECTION  9.2     Indemnification.


 


                              The  Lenders agree to indemnify the Administrative Agent in its capacity as such (to  the extent not reimbursed by the Borrowers and without limiting the obligation  of the Borrowers to do so), ratably according to their respective Commitment  Percentages in effect on the date on which indemnification is sought under this  Section 9.2 (or, if indemnification is sought after the date upon which the  Commitments shall have terminated and the Revolving Credit Loans shall have  been paid in full, ratably in accordance with their Commitment Percentages  immediately prior to such date), from and against any and all liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements of any kind whatsoever which may at any time (including  at
any time following the payment of the Revolving Credit Loans and regardless  of whether pre-judgment or post-judgment) be imposed


 


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on, incurred by or asserted  against the Administrative Agent in any way relating to or arising out of this  Agreement, any of the other Loan Documents or any documents contemplated by or  referred to herein or therein or the transactions contemplated hereby or  thereby or any action taken or omitted by the Administrative Agent under or in  connection with any of the foregoing; provided that no Lender shall be  liable for the payment of any portion of such liabilities, obligations, losses,  damages, penalties, actions, judgments, suits, costs, expenses or disbursements  to the extent resulting solely from the Administrative Agent’s gross negligence  or willful misconduct.  The agreements  in this Section 9.2 shall survive the termination of this Agreement and the  payment of the Revolving Credit Loans and all other amounts payable hereunder.


 


                    SECTION  9.3     The Syndication Agents,  Documentation Agent, Lead Arranger, and  Bookrunner.


 


                              Each  of the Syndication Agents, the Documentation Agent, the Bookrunner and the Lead  Arranger referred to on the cover of this Agreement in its capacity as such  shall have no rights, duties or responsibilities hereunder, nor any fiduciary  relationship with any party hereto, and no implied covenants, functions,  responsibilities, duties, obligations or liabilities shall be read into this  Agreement or otherwise exist against the Syndication or Documentation Agents,  Bookrunner or Lead Arranger in their respective capacities as such.  


 


ARTICLE X


 


MISCELLANEOUS


 


                    SECTION  10.1     Amendments and Waivers; Automatic  Modifications.


 


                              Unless  otherwise expressly provided in this Agreement or in any other Loan Document,  neither this Agreement nor any other Loan Document, nor any terms hereof or  thereof, may be amended, supplemented or modified except in accordance with the  provisions of this Section 10.1.  The  Required Lenders may, or, with the written consent of the Required Lenders, the  Administrative Agent may, from time to time, (a) enter into with the relevant  Loan Parties written amendments, supplements or modifications hereto and to the  other Loan Documents for the purpose of adding any provisions to this Agreement  or the other Loan Documents or changing in any manner the rights of the Lenders  or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and  conditions as the
Required Lenders or the Administrative Agent, as the case may  be, may specify in such instrument, any of the requirements of this Agreement  or the other Loan Documents or any Default or Event of Default and its  consequences; provided, however, that no such waiver and no such  amendment, supplement or modification shall (i) reduce the amount or extend the  scheduled date of maturity of any Revolving Credit Loan or Note, or reduce the  stated rate of any interest or fee payable hereunder or extend the scheduled  date of any payment thereof or increase or reduce (except for reductions in  accordance with Section 2.2(f)) the amount or extend the expiration date of any  Lender’s Commitment, in each case without the consent of each Lender directly  affected thereby, or (ii) amend, modify or waive any provision of this Section  10.1, change Section 2.9(a) or Section 10.11(a) in a manner that would alter  the pro rata sharing of payments required thereby, reduce the percentage  specified
in the definitions of Required Lenders or Majority 


 


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Lenders, consent to the  assignment or transfer by Kimco of any of its rights and obligations under this  Agreement and the other Loan Documents, amend the proviso to the definition of  the term “Unencumbered Properties”, or amend, modify, or waive any provision of  any Loan Document which, by its terms, requires the consent, approval or  satisfaction of all Lenders, or release Kimco from its guarantee under Article  XI, in each case without the written consent of all the Lenders, or (iii)  amend, modify or waive any provision of Article III or otherwise affect the  rights or duties of the Issuing Lender without the written consent of the  Issuing Lender, or (iv) amend, modify or waive any provision of Article IX or  otherwise affect the rights or duties of the Administrative Agent without the  written consent of the then Administrative Agent.  Any such waiver and any such amendment, supplement or  modification shall apply equally to each of
the Lenders and shall be binding  upon the Borrowers, the other Loan Parties, the Lenders, the Issuing Lender,  the Administrative Agent and all future holders of the Notes.  In the case of any waiver, the Borrowers,  the other Loan Parties, the Lenders, the Issuing Lender and the Administrative  Agent shall be restored to their former position and rights hereunder and under  any outstanding Notes and any other Loan Documents, and any Default or Event of  Default waived shall be deemed to be cured and not continuing to the extent  therein specified; but no such waiver shall extend to any subsequent or other  Default or Event of Default, or impair any right consequent thereon.


 


                              The  parties hereto acknowledge that (a) as of the Effective Date, each Lender (or  an Affiliate of such Lender wholly owned, directly or indirectly, by such  Lender or such Lender’s parent) (a “Core Affiliate”) is also a Core  Lender under the Core US Credit Agreement and (b) the affirmative and negative  covenants set forth in Articles VI and VII (including the financial covenants  set forth in Section 7.1 and the definitions related thereto) and the Events of  Default set forth in Article VIII, are based upon and are substantially  identical to the corresponding provisions contained in the Core US Credit Agreement.  Notwithstanding anything to the contrary  contained in this Agreement or in any other Loan Document, the parties hereto  acknowledge and
agree that (a) if the affirmative and/or negative covenants  (including the financial covenants and definitions related thereto) and/or  events of default contained in the Core US Credit Agreement are amended (or  otherwise modified, substituted, renewed, and/or replaced) to differ from those  set forth in Articles VI, VII or VIII of this Agreement, as applicable (collectively,  the “Changed Covenants”), and if, at the time of the effectiveness of  any such amendment (or other modification, substitution, renewal, and/or  replacement), each Lender (or a Core Affiliate of such Lender) is also a lender  under the Core US Credit Agreement, then this Agreement shall be automatically  and simultaneously deemed to have been modified and amended to reflect and  incorporate such Changed Covenants in substitution and replacement of such  affirmative and negative covenants (and the related definitions, as applicable)  and/or Events of Default contained in this Agreement and (b) if each Lender
(or  a Core Affiliate of such Lender) is not also a lender under the Core US Credit  Agreement at the time of the effectiveness of any such amendment (or other  modification, substitution, renewal, and/or replacement), each Lender who is  (or whose Core Affiliate is) then also a lender under the Core US Credit  Agreement shall consent to the amendment of this Agreement to incorporate the  Changed Covenants in substitution and replacement of such affirmative and  negative covenants (and the related definitions, as applicable) and/or Events  of Default contained in this Agreement; provided, however, that  notwithstanding any Changed Covenants, (i) the differences existing on the  Effective Date between the Core US Credit Agreement and this Agreement  contained in (A) the introductory paragraph of Article VI, (B) Section 6.9(c),  (C) Section 7.7(c), (D) paragraphs


 


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(b), (d) and (f) of Article  VIII, as a result of the addition of the words “[A]ny Borrower or” in such  paragraphs, (E) the initial phrase of paragraph (e) of Article VIII (i.e., “An  Event of Default under (and as defined in) the Core US Credit Agreement shall  occur and be continuing or Kimco or any of its Subsidiaries”), (F) paragraph  (i) of Article VIII, (G) paragraph (k) of Article VIII, as a result of the  substitution of the words “Kimco or any of its Subsidiaries” for the words “any  Borrower or any Subsidiary of any Borrower” and the word “Kimco” for the words  “such Borrower” in such paragraph, (H) the clause immediately following  paragraph (l) of Article VIII (the “Enforcement Clause”), as a result of  the addition of the words “with respect to Kimco” and “subject to the last  paragraph of this Article VIII,” and the substitution of the words
“the  Borrowers” for the word “Kimco” in such Enforcement Clause, and (I) the  Enforcement Clause and the last two (2) paragraphs of Article VIII, as a result  of the deletion of the word “Kimco” from such Enforcement Clause and such  paragraphs and (ii) the definition of the terms Commitment and Loan Documents  in Section 1.1, shall not be deemed amended unless any such amendment is made  pursuant to the first paragraph of this Section 10.1; and provided further,  that all Changed Covenants shall be deemed revised to incorporate and reflect,  as applicable, the applicable Loans and credit agreements referred to in this  Agreement, the applicable Borrowers parties to this Agreement, and any required  grammatical changes related to any of the foregoing.  Each Lender shall promptly provide to the Administrative Agent  such evidence as the Administrative Agent may reasonably request to demonstrate  whether any Affiliate of such Lender that is also a Core Lender
is a Core  Affiliate.


 


                    SECTION  10.2     Notices.


 


                              All  notices, requests and demands to or upon the respective parties hereto to be  effective shall be in writing (including by telecopy), and, unless otherwise  expressly provided herein, shall be deemed to have been duly given or made when  delivered by hand, or three Business Days after being deposited in the mail,  postage prepaid, or, in the case of telecopy notice, when received, addressed  as follows in the case of any Borrower, Kimco, the Issuing Lender and the  Administrative Agent, and as notified to the Administrative Agent pursuant to  an administrative questionnaire in the case of the other parties hereto, or to  such other address as may be hereafter notified by the respective parties  hereto and any future holders of the Notes:


 


	
   

  	
  Any Borrower    or Kimco:

  	
  c/o Kimco    Realty Corporation

  
	
   

  	
   

  	
  3333 New    Hyde Park Road, Suite 100

  
	
   

  	
   

  	
  New Hyde    Park, New York 11042

  
	
   

  	
   

  	
  Attention:    Glenn G. Cohen

  
	
   

  	
   

  	
  Telecopy:    (516) 869-2572

  
	
   

  	
   

  	
   

  
	
   

  	
  The    Administrative Agent and the Issuing Lender:

  	
  Royal Bank    of Canada

  
	
   

  	
   

  	
  Royal Bank    Plaza

  
	
   

  	
   

  	
  P.O. Box 50,    200 Bay Street

  
	
   

  	
   

  	
  12th    Floor, South Tower

  
	
   

  	
   

  	
  Toronto,    Ontario M5J 2W7

  
	
   

  	
   

  	
  Canada

  
	
   

  	
   

  	
  Attention:    Manager, Agency Services Group

  
	
   

  	
   

  	
  Telecopy:    (416) 842-4023

  



 


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  with a copy    to:

  	
  Royal Bank    of Canada

  
	
   

  	
   

  	
  One Liberty    Plaza, 3rd Floor

  
	
   

  	
   

  	
  165 Broadway

  
	
   

  	
   

  	
  New York,    New York 10006-1404

  
	
   

  	
   

  	
  Attention:    Manager, Loans Administration

  
	
   

  	
   

  	
  Telecopy:    (212) 428-2372

  
	
   

  	
   

  	
   

  
	
   

  	
  and to:

  	
  Royal Bank    of Canada

  
	
   

  	
   

  	
  One Liberty    Plaza, 6th Floor

  
	
   

  	
   

  	
  165 Broadway

  
	
   

  	
   

  	
  New York,    New York 10006-1404

  
	
   

  	
   

  	
  Attention:    Gordon MacArthur

  
	
   

  	
   

  	
  Telecopy:    (212) 428-6459

  
	
   

  	
   

  	
   

  
	
   

  	
  and a copy    of all notices faxed to:

  	
  Mr. Jamie    Cameron

  
	
   

  	
   

  	
  CTM Group

  
	
   

  	
   

  	
  Facsimile:    (416) 842-4020

  
	
   

  	
   

  	
   

  



 


provided  that any notice, request or demand to or upon the Administrative Agent or the  Lenders pursuant to Section 2.2, 2.3 or 2.4 shall not be effective until  received.


 


                    SECTION  10.3     No Waiver; Cumulative Remedies.


 


                              No  failure to exercise and no delay in exercising, on the part of the  Administrative Agent, the Issuing Lender or any Lender, any right, remedy,  power or privilege hereunder or under the other Loan Documents shall operate as  a waiver thereof; nor shall any single or partial exercise of any right,  remedy, power or privilege hereunder preclude any other or further exercise  thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges  herein provided are cumulative and not exclusive of any rights, remedies,  powers and privileges provided by law.


 


                    SECTION  10.4     Survival of Representations and Warranties.


 


                              All  representations and warranties made hereunder, in the other Loan Documents and  in any document, certificate or statement delivered pursuant hereto or thereto  or in connection herewith or therewith shall survive the execution and delivery  of this Agreement and the other Loan Documents and the making of the extensions  of credit hereunder.


 


                    SECTION  10.5     Payment of Expenses and Taxes.


 


                              Each  Borrower agrees (a) to pay or reimburse the Administrative Agent for all its  reasonable out-of-pocket costs and expenses incurred in connection with the  development, preparation and execution of, and any amendment, supplement or  modification to, this Agreement and the other Loan Documents, any Letters of  Credit, and any other documents prepared in connection herewith or therewith,  and the consummation and administration of the transactions contemplated hereby  and thereby, including the reasonable fees and disbursements of counsel to the  Administrative Agent; (b) to pay or reimburse each Lender, the Issuing Lender


 


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and the Administrative Agent  for all its costs and expenses (including post-judgment costs and expenses)  incurred in connection with the enforcement or preservation of any rights under  this Agreement, the other Loan Documents, any Letters of Credit, and any such  other documents, including the reasonable fees and disbursements of counsel to  the Administrative Agent, the Issuing Lender and the several Lenders; (c) to  pay, and indemnify and hold harmless each Lender, the Issuing Lender and the  Administrative Agent (and their respective affiliates, officers, directors,  employees, advisors and agents) from and against, any and all recording and  filing fees and any and all liabilities with respect to, or resulting from any  delay in paying, stamp, excise and other taxes, if any, which may be payable or  determined to be payable in connection with the execution and delivery of, or  consummation or administration of any of the transactions contemplated by,
or  any amendment, supplement or modification of, or any waiver or consent under or  in respect of, the Original Credit Agreement, this Agreement, the other Loan  Documents, any Letters of Credit, and any such other documents; and (d) to pay,  and indemnify and hold harmless each Lender, the Issuing Lender and the Administrative  Agent (and their respective affiliates, officers, directors, employees,  advisors and agents) from and against any and all other liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, costs,  expenses or disbursements of any kind or nature whatsoever (and regardless of  whether pre-judgment or post-judgment) with respect to the execution, delivery,  enforcement, performance and administration of the Original Credit Agreement,  this Agreement, the other Loan Documents, the Letters of Credit, and any such  other documents, including any of the foregoing relating to the violation of,  noncompliance with or liability under, any Environmental Law
applicable to the  operations of Kimco, any of its Subsidiaries or any of the Properties (all the  foregoing in this clause (d), collectively, the “indemnified liabilities”),  provided that the Borrowers shall have no obligation hereunder to any  indemnitee with respect to indemnified liabilities arising from the gross  negligence or willful misconduct of such indemnitee.  The agreements in this Section 10.5 shall survive the termination  of this Agreement, the expiration, cancellation, or other termination of the  Letters of Credit, and the payment of the Revolving Credit Loans and all other  amounts payable hereunder.


 


                    SECTION  10.6     Successors and Assigns.


 


                              For  purposes of this Section 10.6 the term “Related Parties” shall have the meaning  given thereto in Section 9.1 hereof.


 


                              (a)     The  provisions of this Agreement shall be binding upon and inure to the benefit of  the parties hereto and their respective successors and assigns permitted hereby  (including any Affiliate of the Issuing Lender that issues any Letter of Credit  (an “Issuing Lender Affiliate”)), except that (i) none of the Loan  Parties may assign or otherwise transfer any of its rights or obligations  hereunder without the prior written consent of each Lender (and any attempted  assignment or transfer by any Loan Party without such consent shall be null and  void) and (ii) no Lender may assign or otherwise transfer its rights or  obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or  implied,
shall be construed to confer upon any Person (other than the parties  hereto, their respective successors and assigns permitted hereby (including any  Issuing Lender Affiliate), Participants (to the extent provided in paragraph  (c) of this Section) and, to the extent expressly contemplated hereby, the  Related Parties of each of the Administrative Agent, the Issuing Lender and the  Lenders) any


 


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legal or equitable right,  remedy or claim under or by reason of this Agreement or any other Loan  Document.


 


                              (b)     (i)  Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may  assign to one or more Eligible Assignees all or a portion of its rights and  obligations under this Agreement and under the other Loan Documents (including  all or a portion of its Commitment and the Loans at the time owing to it) with  the prior written consent (such consent not to be unreasonably withheld or  delayed) of:


 


                                                  (A)     Kimco,  provided that no consent of Kimco shall be required for an assignment to  a Lender, an Affiliate of a Lender who is an Eligible Assignee, an Approved  Fund (as defined below) who is an Eligible Assignee, or, if an Event of Default  has occurred and is continuing, any other assignee; 


 


                                                  (B)     the  Administrative Agent, provided that no consent of the Administrative  Agent shall be required for an assignment of any Commitment to an assignee that  is a Lender or an Affiliate of a Lender with a Commitment immediately prior to  giving effect to such assignment; and


 


                                                  (C)     the  Issuing Lender. 


 


                                        (ii)     Assignments  shall be subject to the following additional conditions: 


 


                                                  (A)     except  in the case of an assignment to a Lender or an Affiliate of a Lender who is an  Eligible Assignee or an assignment of the entire remaining amount of the  assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans  of the assigning Lender subject to each such assignment (determined as of the  date the Assignment and Assumption (as defined below) with respect to such  assignment is delivered to the Administrative Agent) shall not be less than  C$5,000,000 unless Kimco and the Administrative Agent otherwise consent, provided  that no such consent of Kimco shall be required if an Event of Default
has  occurred and is continuing; 


 


                                                  (B)     each  partial assignment shall be made as an assignment of a proportionate part of  all the assigning Lender’s rights and obligations under this Agreement and the  other Loan Documents; 


 


                                                  (C)     the  parties to each assignment shall execute and deliver to the Administrative  Agent an Assignment and Assumption substantially in the form of Exhibit A or in  any other form approved by the Administrative Agent (an “Assignment and  Assumption”), together with a processing and recordation fee of C$4,000  (which, except as provided in Section 2.15, shall not be payable by the  Borrowers); and


 


                                                  (D)     the  assignee, if it shall not be a Lender, shall (i) deliver to the  Administrative Agent an Administrative Questionnaire in the form approved by  the Administrative Agent (an “Administrative Questionnaire”) and  (ii) certify in writing


 


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(pursuant to the Assignment and  Assumption or otherwise) for the benefit of the Borrowers that it is an  Eligible Assignee. 


 


                              For  the purposes of this Section 10.6, the term “Approved Fund” has the  following meaning:


 


                              “Approved  Fund” means any Person (other than a natural person) that is an Eligible  Assignee and is engaged in making, purchasing, holding or investing in bank  loans and similar extensions of credit in the ordinary course of its business  and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender  or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.


 


                              Subject  to acceptance and recording thereof pursuant to paragraph (b)(iii) of this  Section, from and after the effective date specified in each Assignment and  Assumption the assignee thereunder shall be a party hereto and, to the extent  of the interest assigned by such Assignment and Assumption, have the rights and  obligations of a Lender under this Agreement, and the assigning Lender thereunder  shall, to the extent of the interest assigned by such Assignment and  Assumption, be released from its obligations under this Agreement (and, in the  case of an Assignment and Assumption covering all of the assigning Lender’s  rights and obligations under this Agreement, such Lender shall cease to be a  party hereto but shall continue to be entitled to the benefits of
Sections 2.11, 2.12, 2.13 and 10.5).   Any assignment or transfer by a Lender of rights or obligations under  this Agreement that does not comply with this Section 10.6 shall be treated for  purposes of this Agreement as a sale by such Lender of a participation in such  rights and obligations in accordance with paragraph (c) of this Section.


 


                                        (iii)     The  Administrative Agent, acting for this purpose as an agent of the Borrowers,  shall maintain at one of its offices a copy of each Assignment and Assumption  delivered to it and a register for the recordation of the names and addresses  of the Lenders, and the Commitment of, and principal amount of the Loans and  payments made by the Issuing Lender pursuant to the Letters of Credit, owing  to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive  absent manifest error, and the Borrowers, the Administrative Agent, the Issuing  Lender and the Lenders may treat each Person whose name is recorded
in the  Register pursuant to the terms hereof as a Lender hereunder for all purposes of  this Agreement, notwithstanding notice to the contrary.  The Register shall be available for  inspection by the Borrowers, the Issuing Lender and any Lender, at any  reasonable time and from time to time upon reasonable prior notice.


 


                                        (iv)     Upon  its receipt of a duly completed Assignment and Assumption executed by an  assigning Lender and an assignee, the assignee’s completed Administrative  Questionnaire (unless the assignee shall already be a Lender hereunder), the  processing and recordation fee referred to in this paragraph (b) and any  written consent to such assignment required by this paragraph (b), the  Administrative Agent shall accept such Assignment and Assumption and record the  information contained therein in the Register; provided that if either  the assigning Lender or the assignee shall have failed to make any payment  required to be made by it pursuant to Section 2.9(b), 3.4 or 9.2, the
Administrative Agent shall have no obligation to


 


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accept such Assignment and Assumption  and record the information therein in the Register unless and until such  payment shall have been made in full, together with all accrued interest  thereon.  No assignment shall be  effective for purposes of this Agreement unless it has been recorded in the  Register as provided in this paragraph. 


 


                              (c)     (i)  Any Lender may, without the consent of Kimco, any Borrower, the Administrative  Agent, or the Issuing Lender, sell participations to an Eligible Assignee or,  with the consent of the Borrowers (such consent not to be unreasonably withheld  and not to be required if a Designated Event of Default has occurred and is  continuing) to one or more other banks or other entities (a “Participant”)  in all or a portion of such Lender’s rights and obligations under this  Agreement and under the other Loan Documents (including all or a portion of its  Commitment and the Loans owing to it); provided that (A) such  Lender’s obligations under this Agreement shall remain unchanged, (B) such  Lender shall remain solely
responsible to the other parties hereto for the  performance of such obligations, and (C) the Borrowers, the other Loan  Parties, the Administrative Agent, the Issuing Lender and the other Lenders  shall continue to deal solely and directly with such Lender in connection with  such Lender’s rights and obligations under this Agreement and the other Loan  Documents.  Any agreement or instrument  pursuant to which a Lender sells such a participation shall provide that such  Lender shall retain the sole right to enforce this Agreement and the other Loan  Documents and to approve any amendment, modification or waiver of any provision  of this Agreement or any other Loan Document; provided that such  agreement or instrument may provide that such Lender will not, without the  consent of the Participant, agree to any amendment, modification or waiver  described in the proviso to Section 10.1 that affects such Participant.  Subject to paragraph (c)(ii) of this Section,  each Borrower
agrees that each Participant shall be entitled to the benefits of  Sections 2.11, 2.12 and 2.13 to the same extent as if it were a Lender and had  acquired its interest by assignment pursuant to paragraph (b) of this  Section.  To the extent permitted by  law, each Participant also shall be entitled to the benefits of Section  10.11(b) as though it were a Lender, provided such Participant agrees to be  subject to Section 10.11(a) as though it were a Lender.


 


                                        (ii)     A  Participant shall not be entitled to receive any greater payment under Section  2.11 or 2.12 than the applicable Lender would have been entitled to receive  with respect to the participation sold to such Participant, unless the sale of  the participation to such Participant is made with Kimco’s prior written  consent.  A Participant that would be a  Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of  Section 2.12(a) unless Kimco is notified of the participation sold to such  Participant and such Participant agrees, for the benefit of the Borrowers, to  comply, and does so comply, with Section 2.12(b) as though it were a Lender.


 


                              (d)     Any  Lender may at any time pledge or assign, or grant a security interest in, all  or any portion of its rights under this Agreement to secure obligations of such  Lender, including any pledge or assignment to secure obligations to a Federal  Reserve Bank, and this Section shall not apply to any such pledge or assignment  or grant of a security interest; provided that no such pledge or  assignment or grant of a security interest, nor the exercise of remedies in  respect of such security interest, shall release a Lender from any of its  obligations hereunder or substitute any such pledgee or assignee for such Lender  as a party hereto.


 


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                    SECTION  10.7     Disclosure.


 


                              Subject  to Section 10.19, Kimco and each Borrower authorize each Lender to disclose to  any Participant or assignee (each, a “Transferee”) and any prospective  Transferee any and all financial information in such Lender’s possession  concerning Kimco and its Affiliates which has been delivered to such Lender by  or on behalf of Kimco or any Borrower pursuant to this Agreement or which has  been delivered to such Lender by or on behalf of Kimco or any Borrower in  connection with such Lender’s credit evaluation of Kimco and its Affiliates  prior to becoming a party to this Agreement.


 


                    SECTION  10.8     [Intentionally Omitted.]


 


                    SECTION  10.9     Extension of Maturity Date.


 


                              By  notice to the Administrative Agent not earlier than twelve (12) months nor  later than three (3) months before the Maturity Date specified in clause (i) of  the definition of “Maturity Date” (the “Original Maturity Date”), the  Borrowers may extend the Maturity Date to the date one year after the Original  Maturity Date (the “Extended Maturity Date”); provided that (i)  the Borrowers shall have paid to the Administrative Agent for the account of  the Lenders on or before on the Original Maturity Date a nonrefundable  extension fee in an amount equal to 0.15% of the aggregate amount of the  Commitments in effect on the Original Maturity Date, whether used or unused,  and (ii) the following conditions shall be satisfied:



 


                              (a)     Each  of the representations and warranties made by any Loan Party in or pursuant to  the Loan Documents shall be true and correct in all material respects on and as  of the as of the Original Maturity Date as if made on and as of such date  except for representations and warranties expressly stated to relate to a  specific earlier date, in which case such representations and warranties were  true and correct in all material respects as of such earlier date. 


 


                              (b)     (i)  No Default or Event of Default shall have occurred and be continuing on the  date of such notice or as of the Original Maturity Date, and (ii) Kimco  would be in compliance with each financial covenant set forth in paragraphs (a)  through (g) of Section 7.1 if the ratio or amount referred to therein were to  be calculated as of the Original Maturity Date (provided that for the  purposes of determining such compliance, Gross Asset Value and Value of  Unencumbered Properties shall be determined for the most recent Test Period as  to which a compliance certificate has been delivered pursuant to Section  6.2(b)). 


 


                              The  request for an extension under this Section 10.9 shall constitute a  representation and warranty by the Borrowers as of the date of such request and  as of the Original Maturity Date that the conditions contained in this Section  10.9 have been satisfied, and shall be accompanied by a certificate of a  Responsible Officer to such effect. The Administrative Agent shall promptly  notify the Lenders of any such extension.


 


                    SECTION  10.10     Subsidiary Guarantors; Release of  Borrowers.


 


                              (a)     At  the election of Kimco at any time and from time to time, at the time of such  election, one or more Wholly Owned Subsidiaries shall become a guarantor of the  Revolving Credit Facility (together with the Subsidiaries listed on Schedule  10.10, each a


 


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“Subsidiary Guarantor”)  by executing and delivering to the Administrative Agent, as applicable, a  Subsidiary Guarantee; provided that (x) each such Wholly Owned  Subsidiary shall satisfy the Baseline Conditions on and as of the date such  Wholly Owned Subsidiary delivers its Subsidiary Guarantee and (y) Kimco shall  be deemed to represent and warrant as of such date that such proposed  Subsidiary Guarantor is a Wholly Owned Subsidiary.


 


                              (b)     A  Borrower shall be released as a Borrower hereunder upon written request by  Kimco provided that (i) any Loans to and/or other obligations of such  Borrower proposed to be released shall have been either (A) repaid (and  any outstanding Letters of Credit issued for its account shall have been fully  cash collateralized unless Kimco is a co-applicant thereof) or (B) assumed  (pursuant to a written agreement reasonably satisfactory in form and substance  to the Administrative Agent), concurrently with or prior to such release, by  Kimco or by another Borrower (which other Borrower satisfies the Baseline  Conditions at the time of such assumption), (ii) there is no Event of  Default after giving effect to such release,
(iii) Kimco is in compliance  with each of the financial covenants set forth in paragraphs (a) through (f) of  Section 7.1 if the ratio or amount referred to therein were to be  calculated as of such date, but after giving effect to such release (provided  that for the purposes of determining such compliance, Gross Asset Value and  Value of Unencumbered Properties shall be determined for the most recent Test  Period as to which a compliance certificate has been delivered pursuant to  Section 6.2(b), after giving effect to such release), (iv) Kimco has  furnished to the Administrative Agent a certificate of its chief financial  officer or other authorized officer as to the matters referred in the preceding  sub-clauses (ii) and (iii), and (v) after giving effect to such release,  there shall be at least one (1) Borrower remaining as such hereunder.


 


                              (c)     A  Subsidiary Guarantor shall be released from any Subsidiary Guarantee upon  written request by Kimco provided that (i) there is no Event of Default  after giving effect to such release (including any changes resulting from any  Property’s ceasing to be an Unencumbered Property if such released guarantor  immediately prior to giving effect to such release was an Obligated Property  Owner in respect thereof), (ii) Kimco is in compliance with each of the  financial covenants set forth in paragraphs (a) through (f) of Section 7.1 if  the ratio or amount referred to therein were to be calculated as of such date,  but after giving effect to such release (including any changes resulting from  any Property’s ceasing to be an
Unencumbered Property if such released guarantor  was an Obligated Property Owner in respect thereof immediately prior to giving  effect to such release and provided that for the purposes of determining  such compliance, Gross Asset Value and Value of Unencumbered Properties shall  be determined for the most recent Test Period as to which a compliance  certificate has been delivered pursuant to Section 6.2(b)), and  (iii) Kimco has furnished to the Administrative Agent a certificate of its  chief financial officer or other authorized financial officer as to the matters  referred to in the preceding clauses (i) and (ii).


 


                    SECTION  10.11     Adjustments; Set-off.


 


                              (a)     If  any Lender (a “benefitted Lender”) shall at any time receive any payment  of all or part of its Revolving Credit Loans or the Reimbursement Obligations  owing to it, or interest thereon, or receive any collateral in respect thereof  (whether voluntarily or involuntarily, by set-off, pursuant to events or  proceedings of the nature referred to in paragraph (f) of Article VIII, or  otherwise), in a greater proportion than any such payment to or collateral


 


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received by any other Lender,  if any, in respect of such other Lender’s Revolving Credit Loans or the  Reimbursement Obligations owing to it, or interest thereon, such benefitted  Lender shall purchase for cash from the other Lenders a participating interest  in such portion of each such other Lender’s Revolving Credit Loans or the  Reimbursement Obligations owing to it, or shall provide such other Lenders with  the benefits of any such collateral, or the proceeds thereof, as shall be  necessary to cause such benefitted Lender to share the excess payment or  benefits of such collateral or proceeds ratably with each of the Lenders; provided,  however, that (i) if all or any portion of such excess payment or  benefits is thereafter recovered from such benefitted Lender, such purchase  shall be rescinded, and the purchase price and benefits returned, to the extent  of such recovery, but without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by any Borrower  pursuant to and in accordance with the express terms of this Agreement or any  payment obtained by a Lender as consideration for the assignment of or sale of  a participation in any of its Revolving Credit Loans or participations in  respect of Letters of Credit to any assignee or participant, other than to any  Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of  this paragraph shall apply).


 


                              (b)     In  addition to any rights and remedies of the Lenders provided by law, each Lender  and each of its Affiliates shall have the right, without prior notice to any  Borrower or Kimco, any such notice being expressly waived by each Borrower and  Kimco to the extent permitted by applicable law, upon any amount becoming due  and payable by any Borrower or Kimco hereunder or under the Notes (whether at  the stated maturity, by acceleration or otherwise) to set off and appropriate  and apply against such amount, any and all deposits (general or special, time  or demand, provisional or final), in any currency, and any other credits,  obligations, indebtedness or claims, in any currency, in each case whether  direct or indirect, absolute or contingent,
matured or unmatured, at any time  held or owing by such Lender or any of its Affiliates or any branch or agency  thereof to or for the credit or the account of such Loan Party.  Each Lender agrees promptly to notify the  applicable Loan Party, the Issuing Lender and the Administrative Agent after  any such setoff and application made by such Lender, provided that the  failure to give such notice shall not affect the validity of such setoff and  application.


 


                    SECTION  10.12     Counterparts.


 


                              This  Agreement may be executed by one or more of the parties to this Agreement on  any number of separate counterparts each of which shall constitute an original,  but all of which when taken together shall be deemed to constitute one and the  same instrument.  A set of the copies of  this Agreement signed by all the parties shall be lodged with Kimco, on behalf  of itself and the Borrowers, and with the Issuing Lender and the Administrative  Agent.  Delivery of an executed  counterpart of a signature page of this Agreement by telecopy shall be  effective as delivery of a manually executed counterpart of this Agreement.


 


                    SECTION  10.13     Severability.


 


                              Any  provision of this Agreement which is prohibited or unenforceable in any  jurisdiction shall, as to such jurisdiction, be ineffective to the extent of  such prohibition or unenforceability without invalidating the remaining  provisions hereof, and any such prohibition or unenforceability in any  jurisdiction shall not invalidate or render unenforceable such provision in any  other jurisdiction.


 


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                    SECTION  10.14     Integration.


 


                              This  Agreement and the other Loan Documents represent the entire agreement of Kimco,  the other Guarantors, the Borrowers, the Administrative Agent, the Issuing  Lender and the Lenders with respect to the subject matter hereof and thereof,  and there are no promises, undertakings, representations or warranties by the  Administrative Agent, the Issuing Lender or any Lender relative to subject  matter hereof or thereof not expressly set forth or referred to herein or in  the other Loan Documents.


 


                    SECTION  10.15     GOVERNING LAW.


 


                              THIS  AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE  PARTIES UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY,  AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW  YORK.


 


                    SECTION  10.16     Submission to Jurisdiction; Waivers.


 


                              Each  Borrower and Kimco hereby irrevocably and unconditionally:


 


                              (a)     submits  for itself and its property in any legal action or proceeding relating to this  Agreement and the other Loan Documents to which it is a party, or for  recognition and enforcement of any judgment in respect thereof, to the  non-exclusive general jurisdiction of the courts of the State of New York, the  courts of the United States of America for the Southern District of New York,  and appellate courts from any thereof; 


 


                              (b)     consents  that any such action or proceeding may be brought in such courts and waives any  objection that it may now or hereafter have to the venue of any such action or  proceeding in any such court or that such action or proceeding was brought in  an inconvenient court and agrees not to plead or claim the same;


 


                              (c)     agrees  that service of process in any such action or proceeding may be effected by  mailing a copy thereof by registered or certified mail (or any substantially  similar form of mail), postage prepaid, to it at the address set forth in  Section 10.2 or at such other address of which the Administrative Agent shall  have been notified pursuant thereto;


 


                              (d)     agrees  that nothing herein shall affect the right to effect service of process in any  other manner permitted by law or shall limit the right to sue in any other  jurisdiction; and


 


                              (e)     waives,  to the maximum extent not prohibited by law, any right it may have to claim or  recover in any legal action or proceeding in connection with this Agreement or  any other Loan Document any special, exemplary, punitive or consequential  damages.


 


                    SECTION  10.17     Acknowledgments.


 


                              Each  Borrower and Kimco hereby acknowledges and agrees that:


 


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                              (a)     such  Person has been advised by counsel in the negotiation, execution and delivery  of this Agreement and the other Loan Documents;


 


                              (b)     neither  the Administrative Agent, the Issuing Lender nor any Lender has any fiduciary  relationship with or duty to such Person arising out of or in connection with  this Agreement or any of the other Loan Documents, and the relationship between  Administrative Agent, the Issuing Lender and the Lenders, on the one hand, and  the Borrowers, on the other hand, in connection herewith or therewith is solely  that of debtor and creditor;


 


                              (c)     no  joint venture is created hereby or by the other Loan Documents or otherwise  exists by virtue of the transactions contemplated hereby among the Lenders, the  Issuing Lender and the Administrative Agent or among such Person, the  Administrative Agent, the Issuing Lender and the Lenders; and


 


                              (d)     if  and to the extent there is more than one (1) Borrower hereunder, at such time  (or times), each Borrower’s liabilities and obligations under this Agreement,  the Notes and the other Loan Documents to which it is a party are and shall,  unless otherwise expressly specified in such Loan Document, be the several  obligations of such Borrower, and shall not be the joint and several  obligations of the Borrowers.


 


                    SECTION  10.18     WAIVERS OF JURY TRIAL.


 


                              EACH  BORROWER, KIMCO, THE ADMINISTRATIVE AGENT, THE ISSUING LENDER AND THE LENDERS  HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION  OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY  COUNTERCLAIM THEREIN.


 


                    SECTION  10.19     Confidentiality.


 


                              Each  of the Administrative Agent, the Issuing Lender and the Lenders agrees to  maintain the confidentiality of the Information (as defined below), except that  Information may be disclosed (a) to its and its Affiliates’ directors,  officers, employees and agents, including accountants, legal counsel and other  advisors (it being understood that the Persons to whom such disclosure is made  will be informed of the confidential nature of such Information and instructed  to keep such Information confidential), (b) to the extent requested by any  regulatory authority, (c) to the extent required by applicable laws or  regulations or by any subpoena or similar legal process (and Kimco and each  Borrower hereby acknowledges and agrees that pursuant to the requirements
of  the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,  2001)) (the “Act”), each Lender is required to obtain, verify and record  information that identifies the Borrowers, which information includes the name  and address of the Borrowers and other information that will allow such Lender  to identify the Borrowers in accordance with the Act), (d) to any other party  to this Agreement, (e) in connection with the exercise of any remedies  hereunder or under any other Loan Document or any suit, action or proceeding  relating to this Agreement or any other Loan Document or the enforcement of  rights hereunder or thereunder or to which the Administrative Agent, the Issuing  Lender or any Lender is a party, (f) subject to an agreement containing  provisions substantially the same as those of this Section, to


 


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(i) any assignee of or  Participant in, or any prospective assignee of or Participant in, any of its  rights or obligations under this Agreement, or (ii) any actual or prospective  counterparty (or its advisors) to any swap or derivative transaction relating  to any Borrower and its obligations, (g) with the consent of the Borrowers or  (h) to the extent such Information (i) becomes publicly available  other than as a result of a breach of this Section or (ii) becomes  available to the Administrative Agent, the Issuing Lender or any Lender on a  nonconfidential basis from a source other than Kimco or any Borrower.  For the purposes of this Section, “Information”  means all information received from Kimco or any Borrower relating to Kimco or  any Borrower or its (or their) respective business, other than any such  information that is available to the Administrative Agent, the Issuing Lender  or any Lender on a
nonconfidential basis; provided that in the case of  information received from Kimco or any Borrower after the date of the Original  Credit Agreement, such information is clearly identified at the time of  delivery as confidential.  Any Person  required to maintain the confidentiality of Information as provided in this  Section shall be considered to have complied with its obligation to do so if  such Person has exercised the same degree of care to maintain the  confidentiality of such Information as such Person would accord to its own  confidential information.


 


                    SECTION  10.20     Judgment Currency.


 


                              (a)     The  obligations hereunder and under the other Loan Documents of the Loan Parties to  make payments in Dollars or in Cdn Dollars, as the case may be (the “Obligation  Currency”), shall not be discharged or satisfied by any tender or recovery  pursuant to any judgment expressed in or converted into any currency other than  the Obligation Currency, except to the extent that such tender or recovery  results in the effective receipt by the Administrative Agent, the Issuing  Lender or a Lender of the full amount of the Obligation Currency expressed to  be payable to the Administrative Agent, the Issuing Lender or such Lender under  this Agreement or the other Loan Documents.   If, for the purpose of obtaining or enforcing judgment
against any Loan  Party in any court or in any jurisdiction, it becomes necessary to convert into  or from any currency other than the Obligation Currency (such other currency  being hereinafter referred to as the “Judgment Currency”) an amount due  in the Obligation Currency, the conversion shall be made, at the Cdn Dollar  Amount of such amount, in each case, as of the date immediately preceding the  day on which the judgment is given (such Business Day being hereinafter  referred to as the “Judgment Currency Conversion Date”).


 


                              (b)     If  there is a change in the rate of exchange prevailing between the Judgment  Currency Conversion Date and the date of actual payment of the amount due, the  applicable Loan Party obligated in respect thereof covenants and agrees to pay,  or cause to be paid, such additional amounts, if any (but in any event not a lesser  amount), as may be necessary to ensure that the amount paid in the Judgment  Currency, when converted at the rate of exchange prevailing on the date of  payment, will produce the amount of the Obligation Currency which could have  been purchased with the amount of Judgment Currency stipulated in the judgment  or judicial award at the rate of exchange prevailing on the Judgment Currency  Conversion Date.


 


                              (c)     For  purposes of determining the Cdn Dollar Amount under this Section, such amounts  shall include any premium and costs payable in connection with the purchase of  the Obligation Currency.


 


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ARTICLE XI


 


GUARANTEE BY KIMCO


 


                    SECTION  11.1     Guarantee.


 


                              In  order to induce the Lenders to extend credit hereunder, Kimco hereby  irrevocably and unconditionally guarantees to the Administrative Agent for the  benefit of the Lender Parties and the Administrative Agent, as a primary  obligor and not merely as a surety, the due and punctual payment of all  Obligations of all the Borrowers (collectively, the “Guaranteed Obligations”).  Kimco agrees that the Guaranteed Obligations  may be extended or renewed, in whole or in part, without notice to or further  assent from it, and that it will remain bound upon its guarantee  notwithstanding any extension or renewal of any Guaranteed Obligations.  Each and every default in payment or  performance on any Guaranteed Obligation shall give rise to a separate cause of
action hereunder, and separate suits may be brought hereunder as each cause of  action arises.


 


                    SECTION  11.2     Guaranteed Obligations Not Waived.


 


                              To  the fullest extent permitted by applicable law, Kimco waives presentment to,  demand of payment from and protest to any Borrower or to any other guarantor of  any of the Guaranteed Obligations, and also waives notice of acceptance of its  guarantee and notice of protest for nonpayment.  To the fullest extent permitted by applicable law, the obligations  of Kimco hereunder shall not be affected by (a) the failure of any Lender  Party to assert any claim or demand or to enforce or exercise any right or  remedy against the applicable Borrower or any other Loan Party under the  provisions of the Loan Documents or otherwise; (b) any rescission, waiver,  amendment or modification of, or any release from any of the terms or  provisions of any Loan Document or any other
agreement; (c) the failure or  delay of any Lender Party for any reason whatsoever to exercise any right or  remedy against any other guarantor of the Obligations; (d) the failure of  any Lender Party to assert any claim or demand or to enforce any remedy under  any Loan Document, any guarantee or any other agreement or instrument;  (e) any default, failure or delay, willful or otherwise, in the  performance of any Guaranteed Obligations; (f) any change in the corporate  existence or structure of any Borrower; (g) the existence of any claims or  set-off rights that Kimco may have, (h) any law, regulation, decree or  order of any jurisdiction or any event affecting any term of a guaranteed  obligation; or (i) any other act, omission or delay to do any other act  which may or might in any manner or to any extent vary the risk of Kimco or  otherwise operate as a discharge or exoneration of Kimco as a matter of law or  equity or which would impair or eliminate any right
of Kimco to subrogation.


 


                    SECTION  11.3     Guarantee of Payment.


 


                              Kimco  agrees that its guarantee hereunder constitutes a guarantee of payment when due  and not of collection, that such guarantee may be enforced at any time and from  time to time, on one or more occasions, during the continuance of any Event of  Default, without any prior demand or enforcement in respect of any Guaranteed  Obligations, and that Kimco waives any right to require that any resort be had  by any Lender Party to any other Guarantor or other guarantee, or to any  security held for payment of any Guaranteed Obligations.  The solicitation


 


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of, or the delivery by Kimco  of, any confirmation or reaffirmation of this Agreement under any circumstance  shall not give rise to any inference as to the continued effectiveness of this  Agreement in any other circumstance in which the confirmation or reaffirmation  hereof has not been solicited or has not been delivered (whether or not  solicited), and the obligations of Kimco hereunder shall continue in effect as  herein provided notwithstanding any solicitation or delivery of any  confirmation or reaffirmation hereof, or any failure to solicit or to deliver  any such confirmation or reaffirmation, under any circumstances.


 


                    SECTION  11.4     No Discharge or Diminishment of Guarantee.


 


                              The  obligations of Kimco under this guarantee shall not be subject to any  reduction, limitation, impairment or termination for any reason (other than the  payment in full in cash and the relevant currency of the Guaranteed  Obligations), including any claim of waiver, release, surrender, amendment,  modification, alteration or compromise of any of the Guaranteed Obligations or  of any collateral security or guarantee or other accommodation in respect  thereof, and shall not be subject to any defense or setoff, counterclaim, recoupment  or termination whatsoever by reason of the invalidity, illegality or  unenforceability of the Guaranteed Obligations or any Loan Document or any  provision thereof (or of this Agreement or any provision hereof) or otherwise.  Without limiting
the generality of the  foregoing, the obligations of Kimco under this guarantee shall not be  discharged or impaired or otherwise affected by any change of location, form or  jurisdiction of any Borrower or any other Person, any merger, consolidation or  amalgamation of any Borrower or any other Person into or with any other Person,  any sale, lease or transfer of any of the assets of any Borrower or any other  Person to any other Person, any other change of form, structure, or status  under any law in respect of any Borrower or any other Person, or any other  occurrence, circumstance, happening or event whatsoever, whether similar or  dissimilar to the foregoing, whether foreseen or unforeseen, that might  otherwise constitute a legal or equitable defense, release, exoneration, or  discharge or that might otherwise limit recourse against any Borrower or Kimco  or any other Person.  The obligations of  Kimco under this guarantee shall extend to all Guaranteed Obligations without  limitation of
amount, and Kimco agrees that it shall be obligated to honor its  guarantee hereunder whether or not any other Guarantor (i) has been called to  honor its guarantee (ii) has failed to honor its guarantee in whole or in part,  or (iii) has been released for any reason whatsoever from its obligations under  its guarantee.


 


                    SECTION  11.5     Defenses Waived; Maturity of Guaranteed  Obligations.


 


                              To  the fullest extent permitted by applicable law, Kimco waives any defense based  on or arising out of any defense of any Borrower or any other guarantor or the  unenforceability of the Guaranteed Obligations or any part thereof from any  cause, or the cessation from any cause of the liability of any Borrower, other  than the final payment in full in cash and the relevant currency of the  Guaranteed Obligations.  The Lender  Parties may, at their election, compromise or adjust any part of the Guaranteed  Obligations, make any other accommodation with any Borrower or any other Person  (including any other Guarantor) or exercise any other right or remedy available  to them against such Borrower or any other Person (including any other  Guarantor), without affecting or impairing
in any way the liability of any  Guarantor hereunder except to the extent the Guaranteed Obligations have been  fully, and finally paid in cash and the relevant currency.  To the fullest extent permitted by  applicable law, Kimco


 


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waives any defense arising out  of any such election even though such election operates, pursuant to applicable  law, to impair or to extinguish any right of reimbursement or subrogation or  other right or remedy of Kimco against any Borrower or any other Person, as the  case may be, or any security.  Kimco  agrees that, as between Kimco, on the one hand, and the Lender Parties, on the  other hand, (i) the maturity of the Guaranteed Obligations guaranteed  hereby may be accelerated for the purposes of Kimco’s guarantee herein,  notwithstanding any stay, injunction or other prohibition preventing such  acceleration as to any Borrower in respect of the Guaranteed Obligations  guaranteed hereby (other than any notices and cure periods expressly granted to  any Borrower in this Agreement or any other Loan Document evidencing or  securing the Guaranteed Obligations) and (ii) in the event of any such  acceleration of such Guaranteed Obligations,
such Guaranteed Obligations  (whether or not due and payable) shall forthwith become due and payable in full  by Kimco for purposes of this Agreement.


 


                    SECTION  11.6     Agreement to Pay; Subordination.


 


                              In  furtherance of the foregoing and not in limitation of any other right that any  Lender Party has at law or in equity against Kimco by virtue hereof, upon the  failure of any Borrower to pay (after the giving of any required notice and the  expiration of any cure period expressly granted to such Borrower in this  Agreement or any other Loan Document evidencing any Guaranteed Obligation) any  Guaranteed Obligation when and as the same shall become due, whether at  maturity, upon mandatory prepayment, by acceleration, after notice of  prepayment or otherwise, Kimco hereby promises to and will forthwith pay, or  cause to be paid, to the Administrative Agent for the benefit of the Lender  Parties, in cash and the relevant currency, the amount of such unpaid  Guaranteed
Obligation.  Upon payment by  Kimco of any sums as provided above, all rights of Kimco against the applicable  Borrower or any other Person arising as a result thereof by way of right of  subrogation, contribution, reimbursement, indemnity or otherwise shall in all  respects be subordinate and junior in right of payment to the prior payment in  full in cash and the relevant currency of all the Guaranteed Obligations.  In addition, any indebtedness of any  Borrower now or hereafter held by Kimco is hereby subordinated in right of  payment to the prior payment in full in cash of the Guaranteed  Obligations.  If any amount shall  erroneously be paid to Kimco on account of (i) such subrogation,  contribution, reimbursement, indemnity or similar right or (ii) any such  indebtedness of any Borrower, such amount shall be held in trust for the  benefit of the Lender Parties and shall forthwith be paid to the Administrative  Agent to be credited against the payment of the Guaranteed
Obligations, whether  matured or unmatured.


 


                    SECTION  11.7     Reinstatement.


 


                              Kimco  further agrees that its obligations hereunder shall continue to be effective or  be reinstated, as the case may be, if at any time payment, or any part thereof,  of any Guaranteed Obligation is rescinded or must otherwise be restored by any  Lender Party upon the bankruptcy or reorganization of any Borrower or  otherwise.  Nothing shall discharge or  satisfy the liability of Kimco hereunder except the full performance and  payment in full in cash and relevant currency of the Guaranteed Obligations.


 


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                    SECTION  11.8     Information.


 


                              Kimco  assumes all responsibility for being and keeping itself informed of the  Borrowers’ financial condition and assets, and of all other circumstances  bearing upon the nature, scope and extent of the risks that Kimco assumes and  incurs hereunder, and agrees that neither the Administrative Agent nor any  other Lender Party will have any duty to advise Kimco of information now or  hereafter known to it or any of them regarding any of the foregoing.


 


                    SECTION  11.9     Payments.


 


                              Kimco  hereby guarantees that payments under this Article XI will be paid to the  Administrative Agent without set-off or counterclaim in the relevant currency  at the office of the Administrative Agent specified in Section 10.2 or to such  other office as the Administrative Agent may hereafter specify by notice to  Kimco.


 


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                              IN  WITNESS WHEREOF, the parties hereto have caused this Agreement to be duty  executed and delivered by their proper and duly authorized officers as of the  day and year first above written.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KIMCO NORTH    TRUST I

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David    B. Henry

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: David    B. Henry

  
	
   

  	
   

  	
  Title:    Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael V. Pappagallo

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name:    Michael V. Pappagallo

  
	
   

  	
   

  	
  Title:    Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMCO NORTH    TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Glenn G. Cohen

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Glenn    Cohen

  
	
   

  	
   

  	
  Title:    Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMCO NORTH    TRUST III

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Glenn G. Cohen

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Glenn    G. Cohen

  
	
   

  	
   

  	
  Title:    Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMCO NORTH    LOAN TRUST IV

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Glenn G. Cohen

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Glenn    G. Cohen

  
	
   

  	
   

  	
  Title:    Trustee

  



 


213








 


	
   

  	
  KIMCO NORTH    TRUST V

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Glenn    G. Cohen

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Glenn    G. Cohen

  
	
   

  	
   

  	
  Title:    Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMCO NORTH    TRUST VI

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Glenn    G. Cohen

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Glenn    G. Cohen

  
	
   

  	
   

  	
  Title:    Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL BANK    OF CANADA, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David Wheatley

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: David Wheatley

  
	
   

  	
   

  	
  Title: Manager, Agency

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LENDERS AND ISSUING LENDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL BANK    OF CANADA, acting through a U.S. branch, as a Lender and as Issuing Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	 	By:	/s/ Gordon MacArthur
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Gordon MacArthur

  
	
   

  	
   

  	
  Title: Authorized Signatory

  



 


214








 


	
   

  	
  BANK OF    AMERICA NATIONAL ASSOCIATION, acting through its Canada branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Medina Sales de Andrade

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Medina Sales de Andrade

  
	
   

  	
   

  	
  Title: Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANADIAN    IMPERIAL BANK OF COMMERCE, acting through a U.S. branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Joel Gershkon

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Joel Gershkon

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF    NOVA SCOTIA, acting through a U.S. branch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R.H. Boese

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: R.H. Boese

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN    CHASE BANK, N.A.,

  
	
   

  	
  TORONTO    BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Christine Chan

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name: Christine Chan

  
	
   

  	
   

  	
  Title: Vice President

  



 


215








 


	
   

  	
  KIMCO:

  
	
   

  	
   

  
	
   

  	
  KIMCO REALTY    CORPORATION,

  
	
   

  	
  for the    limited purposes set forth in the preamble to this Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Glenn    G. Cohen

  
	
   

  	
   

  	
  



  
	
   

  	
   

  	
  Name:     Glenn    G. Cohen

  
	
   

  	
   

  	
  Title:     Treasurer/Vice    President

  



 


216