EXHIBIT 99.2
CONSENT SOLICITATION STATEMENT
KIMCO REALTY CORPORATION
SOLICITATION OF CONSENTS TO AMEND CERTAIN PROVISIONS OF THE INDENTURE
GOVERNING THE FOLLOWING NOTES:
Outstanding Principal
Notes CUSIP Number Amount
- --------------------------------------------------- ----------- --------------------
6.930% Medium-Term Notes due 2006.................. 49446QAL5 $ 30,000,000
Floating Rate Medium-Term Notes due 2006........... 49446QAZ4 $ 100,000,000
7.460% Medium-Term Notes due 2007.................. 49446QAF8 $ 30,000,000
6.960% Medium-Term Notes due 2007.................. 49446QAH4 $ 20,000,000
7.860% Medium-Term Notes due 2007.................. 49446QAT8 $ 50,000,000
7.900% Medium-Term Notes due 2007.................. 49446QAQ4 $ 50,000,000
6.700% Medium-Term Notes due 2007.................. 49446QAD3 $ 10,000,000
3.950% Medium-Term Notes due 2008.................. 49446QAX9 $ 100,000,000
7.560% Medium-Term Notes due 2009.................. 49446QAG6 $ 20,000,000
7.060% Medium-Term Notes due 2009.................. 49446QAJ0 $ 30,000,000
4.620% Medium-Term Notes due 2010.................. 49446QAW1 $ 50,000,000
5.304% Medium-Term Notes due 2011.................. 49446QBE0 $ 100,000,000
4.820% Medium-Term Notes due 2011.................. 49446QBA8 $ 100,000,000
5.980% Medium-Term Notes due 2012.................. 49446QAV3 $ 17,000,000
5.190% Medium-Term Notes due 2013.................. 49446QAY7 $ 100,000,000
4.820% Medium-Term Notes due 2014.................. 49446QBC4 $ 200,000,000
4.904% Medium-Term Notes due 2015.................. 49446QBB6 $ 100,000,000
5.584% Medium-Term Notes due 2015.................. 49446QBD2 $ 150,000,000
5.783% Medium-Term Notes due 2016.................. 49446QBF7 $ 300,000,000
4.961% Senior Notes due 2007....................... 49446RAF6 $ 35,000,000
6.875% Senior Notes due 2009....................... 49446RAE9 $ 130,000,000
6.00% Senior Notes due 2012........................ 49446RAG4 $ 200,000,000
-------------------
$ 1,922,000,000
===================
Kimco Realty Corporation (the "Company," "we" or "us") is soliciting
consents (the "Solicitation") of registered holders ("Registered Holders") of
all series of the notes listed above (collectively, the "Notes") to the adoption
of certain amendments (the "Proposed Amendments") to the Indenture, dated as of
September 1, 1993, as amended and supplemented by the First Supplemental
Indenture, dated as of August 4, 1994, and by the Second Supplemental Indenture,
dated as of April 7, 1995 (as so amended and supplemented, the "Indenture"),
between us and The Bank of New York (successor by merger to IBJ Schroder Bank &
Trust Company), as trustee (the "Trustee"). The Notes vote collectively as a
single class for purposes of the adoption of the Proposed Amendments.
If we receive the Requisite Consents (as defined below) at or prior to
the Expiration Date (as defined below) and the other conditions set forth herein
are satisfied or waived, (i) we will adopt the Proposed Amendments, (ii) we will
enter into a supplemental indenture (the "Third Supplemental Indenture") to
amend the Indenture and (iii) a consent fee (the "Consent Fee") of $1.25 per
$1,000 principal amount of the Notes will be paid to the consenting Registered
Holders of the Notes as described herein. The purpose of the Solicitation is
discussed in more detail below. If the Requisite Consents have been received at
or prior to the Expiration Date (and have not been revoked) and the other
conditions set forth herein are satisfied or waived, we will pay to each
Registered Holder of Notes as of the close of business on May 15, 2006 (the
"Record Date") who has delivered (and has not revoked) a valid Consent (as
defined below) with respect to such Notes, for each $1,000 principal amount of
Notes, an amount equal to the Consent Fee. IF ADOPTED, THE PROPOSED AMENDMENTS
WILL BE BINDING ON ALL REGISTERED HOLDERS, INCLUDING THOSE THAT DO NOT TIMELY
CONSENT TO THE PROPOSED AMENDMENTS. HOWEVER, ONLY THOSE REGISTERED HOLDERS THAT
TIMELY CONSENT (AND DO NOT REVOKE SUCH CONSENT) PRIOR TO THE EXPIRATION DATE
WILL BE ELIGIBLE TO RECEIVE THE CONSENT FEE.
- --------------------------------------------------------------------------------
THE SOLICITATION WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON WEDNESDAY, MAY
31, 2006 UNLESS EXTENDED (SUCH DATE, AS IT MAY BE EXTENDED, THE "EXPIRATION
DATE"). CONSENTS MAY BE REVOKED AT ANY TIME PRIOR TO THE EXPIRATION DATE, BUT
NOT THEREAFTER.
- --------------------------------------------------------------------------------
Requests for assistance in completing and delivering Consents, or for
additional copies of the Consent or this Consent Solicitation Statement, should
be directed to the Information and Tabulation Agent at the address or telephone
numbers set forth on the back cover of this Consent Solicitation Statement.
Questions concerning the terms of the Solicitation should be directed to the
Solicitation Agent at the address or telephone numbers set forth on the back
cover of this Consent Solicitation Statement.
The Solicitation Agent for the consent
solicitation is:
UBS Investment Bank
This Consent Solicitation Statement is dated May 16, 2006.
Only Registered Holders as of the Record Date will be entitled to
consent to the Proposed Amendments. Registered Holders may consent by executing
and delivering prior to the Expiration Date, a properly completed Letter of
Consent (a "Consent") in accordance with the instructions described in this
Consent Solicitation Statement and the Consent. For purposes of book entry
Notes, only The Depository Trust Company ("DTC") participant listed on the
official DTC position listing as of the Record Date will be entitled to execute
the Consent as the Registered Holder thereof, pursuant to the DTC omnibus proxy
for participants entitled to consent as of the Record Date (the "DTC Omnibus
Proxy").
Your consent is important regardless of the size of your holdings
because the consents of Registered Holders of at least a majority in aggregate
principal amount of all of the outstanding Notes voting together as one class
(the "Requisite Consents") are needed to approve the Proposed Amendments. If, on
the Expiration Date, the Requisite Consents have been received for Notes, and
not revoked, we will execute the Third Supplemental Indenture with the Trustee,
which will implement the adoption of the Proposed Amendments. Failure to
complete and return a Consent will have the effect of a vote against the
Proposed Amendments. If we do not receive the Requisite Consents, we will not
execute the Third Supplemental Indenture and the Proposed Amendments do not
become operative.
All properly completed, executed and dated Consents must be received by
Global Bondholder Services Corporation, as the Information and Tabulation Agent
(the "Information and Tabulation Agent"), prior to 5:00 p.m., New York City
time, on the Expiration Date. We may extend the Expiration Date in our sole
discretion.
IF WE RECEIVE THE REQUISITE CONSENTS AND WE ENTER INTO THE THIRD
SUPPLEMENTAL INDENTURE TO AMEND THE INDENTURE, REGISTERED HOLDERS WHO DID NOT
DELIVER A PROPERLY COMPLETED CONSENT TO THE INFORMATION AND TABULATION AGENT, OR
WHO REVOKED THEIR CONSENT, ON OR PRIOR TO THE EXPIRATION DATE, WILL STILL BE
BOUND BY THE PROPOSED AMENDMENTS.
A Consent, return envelope and related materials are enclosed with this
Consent Solicitation Statement. Deliveries of Consents should be made only to
the Information and Tabulation Agent, at the address or facsimile number set
forth on the back cover of this Consent Solicitation Statement. Facsimiles of
Consents must be followed by physical delivery. Consents should not be delivered
to us, the Solicitation Agent or the Trustee. DO NOT, FOR ANY REASON, DELIVER
YOUR NOTES TO US, THE TRUSTEE, THE INFORMATION AND TABULATION AGENT OR THE
SOLICITATION AGENT.
TABLE OF CONTENTS
PAGE
----
IMPORTANT INFORMATION....................................................................... 1
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS AND RISK FACTORS........ 1
SUMMARY.................................................................................... 3
THE NOTES AND THE COMPANY................................................................... 6
PURPOSE OF THE CONSENT SOLICITATION........................................................ 9
THE CONSENT SOLICITATION................................................................... 11
GENERAL TERMS OF THE SOLICITATION.................................................. 11
CONSENT FEE........................................................................ 12
REQUISITE CONSENT.................................................................. 12
PROCEDURE FOR CONSENTING........................................................... 12
CONSENT PROCEDURES FOR HOLDERS WHOSE NOTES ARE NOT HELD IN THEIR NAME.............. 12
CONSENT PROCEDURES FOR PURCHASERS OF NOTES AFTER THE RECORD DATE................... 13
EXPIRATION DATE, EXTENSIONS, TERMINATION AND AMENDMENT............................. 13
CONDITIONS OF THE SOLICITATION..................................................... 14
REVOCATION OF CONSENTS............................................................. 14
EXPENSES OF SOLICITATION........................................................... 15
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS.................................... 16
WHERE YOU CAN FIND ADDITIONAL INFORMATION.................................................. 17
DOCUMENTS INCORPORATED BY REFERENCE........................................................ 18
EXHIBIT A.................................................................................. A-l
EXHIBIT B.................................................................................. B-1
IMPORTANT INFORMATION
The Solicitation is being made upon the terms and subject to the
conditions contained in this Consent Solicitation Statement. The Record Date for
purposes of this Solicitation is the close of business on May 15, 2006. However,
we may, in our sole discretion, establish a new date that, when chosen, will be
deemed to be the "Record Date" for purposes of this Solicitation. Only
Registered Holders on the Record Date and their duly designated proxies will be
entitled to consent to the Proposed Amendments. For purposes of book entry
Notes, only the DTC participant listed on the official DTC position listing as
of the Record Date will be entitled to execute the Consents as the Registered
Holder thereof, pursuant to the DTC Omnibus Proxy. Capitalized terms used in
this Consent Solicitation Statement and not otherwise defined have the meanings
given to such terms in the Indenture. When we refer to this "Consent
Solicitation Statement" we are referring not only to this Consent Solicitation
Statement, but also to the exhibits and other documents that we refer to in, and
incorporate by reference into, this document.
In making your decision, you should rely only on the information
contained in this Consent Solicitation Statement. We have not authorized anyone
to provide you with any different or supplemental information. If you receive
any such information, you should not rely on it. You should not assume that the
information in this Consent Solicitation Statement is accurate as of any date
other than the date on the cover page or that information we have incorporated
by reference is accurate as of any date other than the date of the document
incorporated by reference. The delivery of this Consent Solicitation Statement
shall not, under any circumstances, create any implication that the information
contained in it is correct as of any time subsequent to the date on the cover
page or that there has been no change in the information contained in, or
incorporated by reference into, this Consent Solicitation Statement. By
delivering your Consent, you represent that you are consenting to the Proposed
Amendments solely based on the information contained in, or incorporated by
reference into, this Consent Solicitation Statement and your own examination of
us and the terms of the Proposed Amendments.
THE CONTENTS OF THIS CONSENT SOLICITATION STATEMENT SHOULD NOT BE
CONSTRUED AS LEGAL, BUSINESS OR TAX ADVICE. YOU SHOULD CONSULT YOUR OWN
ATTORNEY, BUSINESS ADVISOR AND TAX ADVISOR AS TO THOSE MATTERS. THIS CONSENT
SOLICITATION STATEMENT DOES NOT CONSTITUTE A SOLICITATION OF CONSENTS IN ANY
JURISDICTION IN WHICH, OR TO OR FROM ANY PERSON TO OR FROM WHOM, IT IS UNLAWFUL
TO MAKE THIS SOLICITATION. PERSONS WHO RECEIVE THIS CONSENT SOLICITATION
STATEMENT MUST INFORM THEMSELVES ABOUT AND OBSERVE ANY APPLICABLE RESTRICTIONS
ON THE DISTRIBUTION AND SOLICITATION OF CONSENTS.
None of us, the Trustee, the Information and Tabulation Agent or the
Solicitation Agent makes any recommendation as to whether Registered Holders
should consent to the Proposed Amendments.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS AND RISK FACTORS
This Consent Solicitation Statement, including the documents that we
incorporate by reference, contains certain historical and forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act. We intend such
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995 and include this statement for purposes of complying with these safe
harbor provisions. Forward-looking statements, which are based on certain
assumptions and describe our future plans, strategies and expectations, are
generally identifiable by use of the words "believe," "expect," "intend,"
"anticipate," "estimate," "project" or similar expressions. Our ability to
predict results or the actual effect of future plans or strategies is inherently
uncertain. Factors which may cause actual results to differ materially from
current expectations include, but are not limited to, (i) changes in general
economic and local real estate conditions, (ii) the inability of major tenants
to continue paying their rent obligations due to bankruptcy, insolvency or
general downturn in their business, (iii) financing risks, such as the inability
to obtain equity or debt financing on favorable terms,
(iv) changes in governmental laws and regulations (including changes to laws
governing the taxation of real estate investment trusts ("REITs")), (v) the
level and volatility of interest rates, (vi) the availability of suitable
acquisition opportunities and (vii) increases in operating costs. The
forward-looking statements included in this Consent Solicitation Statement are
made only as of the date of this Consent Solicitation Statement and we undertake
no obligation to publicly update these forward-looking statements to reflect new
information, future events or otherwise. In light of these risks, uncertainties
and assumptions, the forward-looking events might or might not occur.
Accordingly, there is no assurance that our expectations will be realized.
SUMMARY
THIS SUMMARY HIGHLIGHTS SOME INFORMATION ABOUT US AND THIS CONSENT
SOLICITATION STATEMENT. IT MAY NOT CONTAIN ALL OF THE INFORMATION THAT IS
IMPORTANT TO YOU. YOU SHOULD READ THIS CONSENT SOLICITATION STATEMENT IN ITS
ENTIRETY TOGETHER WITH THE MORE DETAILED INFORMATION AND CONSOLIDATED FINANCIAL
STATEMENTS AND THE RELATED NOTES FOUND IN THE DOCUMENTS WE FILE WITH THE
SECURITIES AND EXCHANGE COMMISSION ("SEC"), INCLUDING THOSE LISTED UNDER THE
HEADING "DOCUMENTS INCORPORATED BY REFERENCE." YOU SHOULD ASSUME THAT THE
INFORMATION IN THIS CONSENT SOLICITATION STATEMENT IS ACCURATE ONLY AS OF THE
DATE OF THIS CONSENT SOLICITATION STATEMENT, OR, IN THE CASE OF DOCUMENTS WE
PREVIOUSLY FILED WITH THE SEC AND INCORPORATED BY REFERENCE, AS OF THE DATE OF
THOSE DOCUMENTS. OUR BUSINESS, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND
PROSPECTS MAY HAVE CHANGED SINCE THOSE DATES. IN THIS CONSENT SOLICITATION
STATEMENT, UNLESS SPECIFICALLY NOTED OTHERWISE, "WE," "US" AND "OUR," OR THE
"COMPANY" REFER TO KIMCO REALTY CORPORATION, INC. AND ITS SUBSIDIARIES.
ABOUT OUR COMPANY
We began operations through a predecessor in 1966, and today are one of
the nation's largest publicly-traded owners and operators of neighborhood and
community shopping centers (measured by gross leasable area, which we refer to
as "GLA").
As of April 21, 2006, we owned interests in 1,117 properties, totaling
approximately 143.2 million square feet of GLA located in 45 states, Canada,
Mexico and Puerto Rico. Our executive offices are located at 3333 New Hyde Park
Road, New Hyde Park, New York 11042-0020 and our telephone number is (516)
869-9000.
PURPOSE OF THE CONSENT SOLICITATION
The purpose of this consent solicitation is to amend two debt covenants
contained in the Indenture that restrict our ability to incur and secure debt.
We believe these amendments will (i) enhance our financial flexibility, (ii)
enable us to more efficiently access debt capital, (iii) align our debt
covenants with debt covenants that many other investment grade REITs have had in
place over the past ten years and (iv) enable us to more effectively engage in
our general corporate activities, which may include the acquisition of
neighborhood and community shopping centers, as suitable opportunities arise,
the expansion and improvement of certain properties in our portfolio, the
repayment or refinancing of indebtedness outstanding at that time, and other
investments.
Through this consent solicitation, we are seeking to change our total
debt and secured debt covenants from covenants based on the amount of our
Undepreciated Real Estate Assets to covenants based on the amount of our Total
Assets. We believe these revised covenants reflect the terms of debt instruments
issued by many other investment grade REITs in the past, and appropriately allow
us to add the other assets we hold on our balance sheet to our asset value
definition. Notably, we are not seeking to employ asset valuation definitions
and covenants related thereto that use market-based (capitalization rate
derived) real estate asset values. Instead, our debt covenants will be based
upon the undepreciated book values of our real estate assets plus the book value
of our other assets.
See "Purpose of the Consent Solicitation" for a description of the
Proposed Amendments.
Concurrently with this consent solicitation, Kimco North Trust III, a
wholly-owned entity of the Company, is soliciting consents of holders of C$150
million 4.45% Canadian Dollar Denominated Notes (the "CAD Notes") issued by
Kimco North Trust III and guaranteed by us in an effort to give effect to the
adoption of the same proposed amendments under the CAD Notes. The consent
holders of a majority of the CAD Notes issued by Kimco North Trust III will be
conditional on the satisfaction of the conditions required for the adoption of
the Proposed Amendments, including the Company receiving the Requisite Consents
and entering into the Third Supplemental Indenture to amend the Indenture.
CONSENT FEE
Cash payments of $1.25 will be paid to each Registered Holder of Notes
as of the Record Date for each $1,000 principal amount of Notes for which a
Consent has been accepted, payable upon satisfaction of the General Conditions
(as defined below), and promptly following the execution of the Third
Supplemental Indenture. See "The Consent Solicitation-Consent Fee." In the event
that this Solicitation is withdrawn or otherwise not completed, including as a
result of the failure to meet the General Conditions, the Consent Fee will not
be paid or payable.
REQUISITE CONSENTS
The adoption of the Proposed Amendments requires the consent of
Registered Holders of at least a majority in aggregate principal amount of the
Notes voting together as one class. Registered Holders who wish to deliver a
valid Consent must consent to all of the Proposed Amendments.
PROCEDURE FOR CONSENTING
To consent to the Proposed Amendments, you must deliver a properly
completed and executed Consent, a form of which is enclosed with this Consent
Solicitation Statement, to the Information and Tabulation Agent on or prior to
the Expiration Date in accordance with the instructions contained in this
Consent Solicitation Statement and in the Consent.
DO NOT, FOR ANY REASON, DELIVER YOUR NOTES TO US, THE TRUSTEE, THE
INFORMATION AND TABULATION AGENT OR THE SOLICITATION AGENT AND DO NOT DELIVER
THE CONSENT TO ANY PERSON OTHER THAN THE INFORMATION AND TABULATION AGENT.
EXPIRATION DATE
The Expiration Date is 5:00 p.m., New York City time, on Wednesday, May
31, 2006, unless extended.
CONDITIONS OF THE SOLICITATION
The Proposed Amendments will not become operative (and therefore the
Third Supplemental Indenture will not become operative) unless all conditions to
the Solicitation described in this Consent Solicitation Statement under "The
Consent Solicitation-Conditions of the Solicitation" are satisfied or waived.
REVOCATION OF CONSENTS
A Registered Holder may revoke its Consent if the Information and
Tabulation Agent receives written notice of revocation prior to the Expiration
Date. Once a Consent has been revoked, the Registered Holder may redeliver their
Consent on or prior to the Expiration Date by following the procedures described
in this Consent Solicitation Statement under "The Consent Solicitation-Procedure
for Consenting." Any Registered Holder who revokes a Consent will not receive
the Consent Fee, unless such Consent is redelivered prior to the Expiration
Date.
ADDITIONAL INFORMATION
Requests for assistance in completing and delivering Consents, or for
additional copies of the Consent or this Consent Solicitation Statement, should
be directed to the Information and Tabulation Agent. Questions concerning the
terms of the consent solicitation should be directed to the Solicitation Agent.
See the back cover of this Consent Solicitation Statement for contact
information.
THE NOTES AND THE COMPANY
The Notes are rated Baa1 by Moody's Investors Services, Inc. and A- by
Standard & Poor's Ratings Services.
THE NOTES
The 6.930% Medium-Term Notes due 2006 (CUSIP No. 49446QAL5) bear
interest at a rate of 6.930% per annum and will mature on July 20, 2006 (unless
earlier redeemed by us). The aggregate principal amount of the 6.930%
Medium-Term Notes due 2006 is $30,000,000.
The Floating Rate Medium-Term Notes due 2006 (CUSIP No. 49446QAZ4) bear
interest at a rate of three-month LIBOR plus 20 basis points per annum and will
mature on August 1, 2006 (unless earlier redeemed by us). The aggregate
principal amount of the Floating Rate Medium-Term Notes due 2006 is
$100,000,000.
The 7.460% Medium-Term Notes due 2007 (CUSIP No. 49446QAF8) bear
interest at a rate of 7.460% per annum and will mature on May 20, 2007 (unless
earlier redeemed by us). The aggregate principal amount of the 7.460%
Medium-Term Notes due 2007 is $30,000,000.
The 6.960% Medium-Term Notes due 2007 (CUSIP No. 49446QAH4) bear
interest at a rate of 6.960% per annum and will mature on July 16, 2007 (unless
earlier redeemed by us). The aggregate principal amount of the 6.960%
Medium-Term Notes due 2007 is $20,000,000.
The 7.860% Medium-Term Notes due 2007 (CUSIP No. 49446QAT8) bear
interest at a rate of 7.860% per annum and will mature on November 1, 2007
(unless earlier redeemed by us). The aggregate principal amount of the 7.860%
Medium-Term Notes due 2007 is $50,000,000.
The 7.900% Medium-Term Notes due 2007 (CUSIP No. 49446QAQ4) bear
interest at a rate of 7.900% per annum and will mature on December 7, 2007
(unless earlier redeemed by us). The aggregate principal amount of the 7.900%
Medium-Term Notes due 2007 is $50,000,000.
The 6.700% Medium-Term Notes due 2007 (CUSIP No. 49446QAD3) bear
interest at a rate of 6.700% per annum and will mature on December 14, 2007
(unless earlier redeemed by us). The aggregate principal amount of the 6.700%
Medium-Term Notes due 2007 is $10,000,000.
The 3.950% Medium-Term Notes due 2008 (CUSIP No. 49446QAX9) bear
interest at a rate of 3.950% per annum and will mature on August 5, 2008 (unless
earlier redeemed by us). The aggregate principal amount of the 3.950%
Medium-Term Notes due 2008 is $100,000,000.
The 7.560% Medium-Term Notes due 2009 (CUSIP No. 49446QAG6) bear
interest at a rate of 7.560% per annum and will mature on May 27, 2009 (unless
earlier redeemed by us). The aggregate principal amount of the 7.560%
Medium-Term Notes due 2009 is $20,000,000.
The 7.060% Medium-Term Notes due 2009 (CUSIP No. 49446QAJ0) bear
interest at a rate of 7.060% per annum and will mature on July 14, 2009 (unless
earlier redeemed by us). The aggregate principal amount of the 7.060%
Medium-Term Notes due 2009 is $30,000,000.
The 4.620% Medium-Term Notes due 2010 (CUSIP No. 49446QAW1) bear
interest at a rate of 4.620% per annum and will mature on May 6, 2010 (unless
earlier redeemed by us). The aggregate principal amount of the 4.620%
Medium-Term Notes due 2010 is $50,000,000.
The 5.304% Medium-Term Notes due 2011 (CUSIP No. 49446QBE0) bear
interest at a rate of 5.304% per annum and will mature on February 22, 2011
(unless earlier redeemed by us). The aggregate principal amount of the 5.304%
Medium-Term Notes due 2011 is $100,000,000.
The 4.820% Medium-Term Notes due 2011 (CUSIP No. 49446QBA8) bear
interest at a rate of 4.820% per annum and will mature on August 15, 2011
(unless earlier redeemed by us). The aggregate principal amount of the 4.820%
Medium-Term Notes due 2011 is $100,000,000.
The 5.980% Medium-Term Notes due 2012 (CUSIP No. 49446QAV3) bear
interest at a rate of 5.980% per annum and will mature on July 30, 2012 (unless
earlier redeemed by us). The aggregate principal amount of the 5.980%
Medium-Term Notes due 2012 is $17,000,000.
The 5.190% Medium-Term Notes due 2013 (CUSIP No. 49446QAY7) bear
interest at a rate of 5.190% per annum and will mature on October 1, 2013
(unless earlier redeemed by us). The aggregate principal amount of the 5.190%
Medium-Term Notes due 2013 is $100,000,000.
The 4.820% Medium-Term Notes due 2014 (CUSIP No. 49446QBC4) bear
interest at a rate of 4.820% per annum and will mature on June 1, 2014 (unless
earlier redeemed by us). The aggregate principal amount of the 4.820%
Medium-Term Notes due 2014 is $200,000,000.
The 4.904% Medium-Term Notes due 2015 (CUSIP No. 49446QBB6) bear
interest at a rate of 4.904% per annum and will mature on February 18, 2015
(unless earlier redeemed by us). The aggregate principal amount of the 4.904%
Medium-Term Notes due 2015 is $100,000,000.
The 5.584% Medium-Term Notes due 2015 (CUSIP No. 49446QBD2) bear
interest at a rate of 5.584% per annum and will mature on November 23, 2015
(unless earlier redeemed by us). The aggregate principal amount of the 5.584%
Medium-Term Notes due 2015 is $150,000,000.
The 5.783% Medium-Term Notes due 2016 (CUSIP No. 49446QBF7) bear
interest at a rate of 5.783% per annum and will mature on March 15, 2016 (unless
earlier redeemed by us). The aggregate principal amount of the 5.783%
Medium-Term Notes due 2016 is $300,000,000.
The 4.961% Senior Notes due 2007 (CUSIP No. 49446RAF6) bear interest at
a rate of 4.961% per annum and will mature on November 30, 2007 (unless earlier
redeemed by us). The aggregate principal amount of the 4.961% Senior Notes due
2007 is $35,000,000.
The 6.875% Senior Notes due 2009 (CUSIP No. 49446RAE9) bear interest at
a rate of 6.875% per annum and will mature on February 10, 2009 (unless earlier
redeemed by us). The aggregate principal amount of the 6.875% Senior Notes due
2009 is $130,000,000.
The 6.00% Senior Notes due 2012 (CUSIP No. 49446RAG4) bear interest at
a rate of 6.00% per annum and will mature on November 30, 2012 (unless earlier
redeemed by us). The aggregate principal amount of the 6.00% Senior Notes due
2012 is $200,000,000.
THE COMPANY
We began operations through a predecessor in 1966, and today are one of
the nation's largest publicly-traded owners and operators of neighborhood and
community shopping centers (measured by GLA).
As of April 21, 2006, we owned interests in 1,117 properties, totaling
approximately 143.2 million square feet of GLA located in 45 states, Canada,
Mexico and Puerto Rico.
Our ownership interests in real estate consist of our consolidated
portfolio and in portfolios in which we own an economic interest, such as Kimco
Income REIT, the RioCan Venture, Kimco Retail Opportunity Portfolio and other
properties or portfolios where we also retain management. We believe our
portfolio of neighborhood and community shopping center properties is the
largest (measured by GLA) currently held by any publicly-traded REIT.
We believe that we have operated, and we intend to continue to operate,
in such a manner to qualify as a REIT under the Internal Revenue Code of 1986,
as amended (the "Code"). We are self-administered and self-managed through
present management, which has owned and managed neighborhood and community
shopping centers for more than 35 years. We have not engaged, nor do we expect
to retain, any external advisors in connection with the operation of our
properties. Our executive officers are engaged in the day-to-day management and
operation of our real estate exclusively, and we administer nearly all operating
functions for our properties, including leasing, legal, construction, data
processing, maintenance, finance and accounting. Our executive offices are
located at 3333 New Hyde Park Road, New Hyde Park, New York 11042-0020 and our
telephone number is (516) 869-9000.
In order to maintain our qualification as a REIT for federal income tax
purposes, we are required to distribute at least 90% of our net taxable income,
excluding capital gains, each year. Dividends on any preferred stock issued by
us are included as distributions for this purpose. Historically, our
distributions have exceeded, and we expect that our distributions will continue
to exceed, our net taxable income each year. A portion of such distributions may
constitute a return of capital. As a result of the foregoing, our consolidated
net worth may decline. We, however, do not believe that consolidated
stockholders' equity is a meaningful reflection of net real estate values.
PURPOSE OF THE CONSENT SOLICITATION
We are soliciting consents of the Registered Holders in an effort to
adopt certain amendments to two debt covenants contained in the Indenture. We
believe these amendments will (i) enhance our financial flexibility, (ii)
enable us to more efficiently access debt capital, (iii) align our debt
covenants with those of many other investment grade REITs and (iv) enable us to
more effectively engage in our general corporate purposes, which may include
the acquisition of neighborhood and community shopping centers, as suitable
opportunities arise, the expansion and improvement of certain properties in our
portfolio, the repayment or refinancing of indebtedness outstanding at that
time, and other investments.
Our business has evolved over the years in response to changing
economic and industry conditions. We have capitalized on many of these
opportunities and believe we are well-positioned to take advantage of further
changes to come.
The ownership of high-quality, well-located retail assets remains our
core fundamental operating strategy. However, as our business has evolved, our
portfolio of real estate 'assets' has similarly evolved and now includes
significant investments in real estate joint ventures, developments and other
assets which are not necessarily afforded appropriate credit under the
definition of assets as proscribed by the current covenant package under the
existing Indenture.
The Proposed Amendments, if accepted, will not change our core
operating or investment strategy. We currently do not have any intention to
deviate from the core credit metrics within which the Company has historically
operated. We remain committed to the current ratings and to protecting our
corporate credit investing constituency.
DESCRIPTION OF THE PROPOSED AMENDMENTS
The table below provides a summary description of the Proposed
Amendments.
- ----------------------------------------------------------- ------------------------------------------------------------
Existing Covenant Proposed Revised Covenant
- ----------------------------------------------------------- ------------------------------------------------------------
o Under Section 1004(a) of the Indenture, the Company will o Under Section 1004(a) of the Indenture, the Company will
not incur any Debt, if, immediately after giving effect to not incur any Debt, if, immediately after giving effect to
the incurrence of such additional Debt, the aggregate the incurrence of such additional Debt, the aggregate
principal amount of all outstanding Debt of the Company and principal amount of all outstanding Debt of the Company and
its Subsidiaries on a consolidated basis determined in its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 65% of the sum of (i) accordance with GAAP is greater than 65% of Total Assets as
the Company's Undepreciated Real Estate Assets as of the end of the end of the calendar quarter covered in the Company's
of the calendar quarter covered in the Company's Annual Annual Report on Form 10-K or Quarterly Report on Form 10-Q,
Report on Form 10-K or Quarterly Report on Form 10-Q, as the as the case may be, most recently filed with the Commission
case may be, most recently filed with the Commission (or, if (or, if such filing is not permitted under the Securities
such filing is not permitted under the Securities Exchange Exchange Act of 1934, with the Trustee) prior to the
Act of 1934, with the Trustee) prior to the incurrence of incurrence of such additional Debt.
such additional Debt and (ii) the purchase price of any real
estate assets acquired by the Company or any Subsidiary The following additional defined term will be included in
since the end of such calendar quarter, including those Section 1004(a).
obtained in connection with the incurrence of such
additional Debt. "Total Assets," as defined in the Second Supplemental
Indenture, means, as of any date, the sum of (i) the
Company's Undepreciated Real Estate Assets and (ii) all
other assets of the Company determined in accordance with
GAAP (but excluding goodwill and amortized debt costs).
- --------------------------------------------------------------------------------------------------------------------------------
o Under Section 1004(c) of the Indenture, the Company will o Under Section 1004(c) of the Indenture, the Company will
not, incur any secured Debt if, immediately after giving not incur any secured Debt if, immediately after giving
effect to the incurrence of such additional Debt, effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding the aggregate principal amount of all outstanding Debt of
Debt of the Company and its Subsidiaries which is secured is the Company and its Subsidiaries which is secured is greater
greater than 40% of the sum of (i) the Company's than 40% of Total Assets as of the end of the calendar
Undepreciated Real Estate Assets as of the end of the quarter covered in the Company's Annual Report on Form 10-K
calendar quarter covered in the Company's Annual Report on or Quarterly Report on Form 10-Q, as the case may be, most
Form 10-K or Quarterly Report on Form 10-Q, as the case may recently filed with the Commission (or, if such filing is
be, most recently filed with the Commission (or, if such not permitted under the Securities Exchange Act of 1934,
filing is not permitted under the Securities Exchange Act of with the Trustee) prior to the incurrence of such additional
1934, with the Trustee) prior to the incurrence of such Debt.
additional Debt and (ii) the purchase price of any real
estate assets acquired by the Company or any Subsidiary The following additional defined term will be included in
since the end of such calendar quarter, including those Section 1004(c).
obtained in connection with the incurrence of such
additional Debt. "Total Assets," as defined in the Second Supplemental
Indenture, means, as of any date, the sum of (i) the
Company's Undepreciated Real Estate Assets and (ii) all
other assets of the Company determined in accordance with
GAAP (but excluding goodwill and amortized debt costs).
Exhibit A hereto sets forth the full text of the CURRENT provisions of
the Indenture (summarized above) to be amended. Exhibit B hereto sets forth the
full text of the provisions as PROPOSED TO BE AMENDED (if the Requisite Consents
are obtained and the Proposed Amendments are adopted).
THE CONSENT SOLICITATION
GENERAL TERMS OF THE SOLICITATION
The Proposed Amendments are being submitted as a single proposal. You
may not consent only to some but not all of the Proposed Amendments. You may
consent only to all of the Proposed Amendments or none of them. Partial or
conditional Consents will not constitute valid Consents. If the Requisite
Consents are not received by the Information and Tabulation Agent on or prior
to 5:00 p.m., New York City time, on the Expiration Date, the Third
Supplemental Indenture will not be executed by us and the Trustee and the
Proposed Amendments will not become operative.
The Proposed Amendments will not become operative until after the
satisfaction or waiver of the conditions to this consent solicitation. These
conditions include receipt of the Requisite Consents and the satisfaction of
the General Conditions described under the heading "Conditions of the
Solicitation."
We reserve the right to amend the terms and conditions of this consent
solicitation at any time prior to the Expiration Date for any reason,
including, but not limited to, extending and/or terminating the consent
solicitation.
If the Requisite Consents are received and the Proposed Amendments
become operative, the Third Supplemental Indenture and the amendments to the
Indenture effected thereby will be binding on all holders of Notes, including
non-consenting Registered Holders and their transferees. All other provisions
of the Indenture that are not amended by the Third Supplemental Indenture will
remain in full force and effect. Regardless of the outcome of this consent
solicitation, the Notes will continue to be outstanding and will continue to
accrue interest as provided in the Notes and the Indenture.
Only Registered Holders on the Record Date, or a subsequent holder who
has obtained a valid proxy from the Registered Holder as of the Record Date, may
submit a Consent. Each completed Consent should be delivered by hand, courier,
mail (first class, postage prepaid) or facsimile (with the originally executed
Consent to follow) to the Information and Tabulation Agent at the address or
facsimile number set forth on the back cover of this Consent Solicitation
Statement. The Information and Tabulation Agent will deliver a copy of each
Consent to us and the Trustee. YOU SHOULD NOT DELIVER YOUR NOTES TO US, THE
SOLICITATION AGENT, THE INFORMATION AND TABULATION AGENT OR THE TRUSTEE AND YOU
SHOULD NOT DELIVER A CONSENT TO ANY PERSON OTHER THAN THE INFORMATION AND
TABULATION AGENT. DELIVERY OF A CONSENT TO ANY PERSON OTHER THAN THE INFORMATION
AND TABULATION AGENT WILL NOT BE VALID DELIVERY OF A CONSENT.
Giving a Consent will not affect a Registered Holder's right to sell or
transfer Notes. All valid Consents received, and not revoked, before the
Expiration Date will be effective even if there is a later transfer of the Notes
to which such Consent relates.
Enclosed with this Consent Solicitation Statement is the form of
Consent to be executed and delivered by the Registered Holders of the Notes,
along with instructions on how to complete and deliver such Consent.
CONSENT FEE
We will pay each Registered Holder of the Notes whose Consents have
been accepted in this Solicitation a Consent Fee equal to $1.25 for each $1,000
principal amount of Notes as to which a Consent has been delivered by such
Registered Holder. The Consent Fee will be made promptly following the execution
of the Third Supplemental Indenture. The Consents will expire if the Proposed
Amendments do not become operative. Interest will not accrue on or be payable
with respect to any Consent Fee.
REQUISITE CONSENT
To become operative, the Proposed Amendments must be approved by the
Registered Holders of at least a majority in aggregate principal amount of the
Notes voting together as one class. Presently, $1,922,000,000 aggregate
principal amount of Notes is outstanding. Accordingly, Consents from Registered
Holders of more than $961,000,000 aggregate principal amount of Notes must be
received by the Information and Tabulation Agent, and not revoked, on or prior
to the Expiration Date. This Consent Solicitation Statement, the Consent and
other related documents are being sent to all persons who are Registered
Holders as of the close of business on the Record Date.
PROCEDURE FOR CONSENTING
A properly completed, executed and dated Consent must be delivered to
the Information and Tabulation Agent at the address or facsimile number
(followed by physical delivery of the originally executed Consent) set forth on
the back cover of this Consent Solicitation Statement on or prior to the
Expiration Date.
Only Registered Holders of the Notes as of the Record Date or holders
of a valid proxy from a Registered Holder may deliver a Consent. Any beneficial
owner of Notes who is not the Registered Holder of such Notes must arrange with
the Registered Holder, or holders of a valid proxy from the Registered Holder,
to execute and deliver the applicable Consent on such beneficial owner's
behalf.
Consents executed by the Registered Holder should be executed exactly
the same way as their name(s) appear(s) on the Notes. If Notes to which a
Consent relates are held by two or more joint Registered Holders, all
Registered Holders should sign the Consent. If a Consent is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other Registered Holder acting in a fiduciary or representative
capacity, such person should so indicate when signing and should submit to the
Information and Tabulation Agent, along with the Consent, appropriate evidence
(satisfactory to us) of such person's authority to so act. If Notes are
registered in different names, separate Consents must be executed by each
Registered Holder.
CONSENT PROCEDURES FOR HOLDERS WHOSE NOTES ARE NOT HELD IN THEIR NAME
Any person who wishes to deliver a Consent but whose Notes are held in
the name of a brokerage firm, bank nominee or other institution must either:
o obtain a valid proxy from that institution, or
o instruct that institution to execute the appropriate Consent on their
behalf.
We anticipate that DTC, as nominee holder of the Notes, will execute
the DTC Omnibus Proxy which authorizes its participants to consent with respect
to the Notes owned by the DTC participants and held in the name of Cede & Co. as
specified on the DTC position listing as of the Record Date. In such case, all
references to holders shall, unless otherwise specified, include the DTC
participants. For purposes of book entry Notes, the DTC participant listed on
the official DTC position listing as of the Record Date shall be entitled to
execute the Consents as the Registered Holder thereof, pursuant to the DTC
Omnibus Proxy.
CONSENT PROCEDURES FOR PURCHASERS OF NOTES AFTER THE RECORD DATE
If a person purchases Notes after the Record Date and the Registered
Holder of such Notes as of the Record Date previously consented (or thereafter
consents) to the Proposed Amendments, such consent of the Registered Holder as
of the Record Date, and not the subsequent holder, will be accepted by the
Information and Tabulation Agent if it was (or is) validly submitted. However,
if a person purchases Notes after the Record Date and the Registered Holder of
such Notes as of the Record Date has not previously consented to the Proposed
Amendments, the purchaser may obtain a valid proxy from the Registered Holder
as of the Record Date and submit a Consent on or prior to the Expiration Date.
All questions as to the validity, form, eligibility, receipt and
revocation of any Consent will be resolved by us in our sole discretion, and
our determination will be final and binding. We reserve the right to waive any
defects or irregularities or conditions of delivery as to a particular Consent.
Our interpretation of the terms and conditions of the Solicitation will be
conclusive and binding.
EXPIRATION DATE, EXTENSIONS, TERMINATION AND AMENDMENT
The term "Expiration Date" means 5:00 p.m., New York City time, on
Wednesday, May 31, 2006, unless we, in our sole discretion, extend the period
during which the Solicitation is open. In that event, the term "Expiration
Date" will mean the latest time and date on which the Solicitation, as so
extended, will expire. We reserve the right:
o to extend the Solicitation at any time or from time to time, until the
Requisite Consents have been received;
o to terminate the Solicitation at any time prior to the Expiration Date,
whether or not the Requisite Consents have been received; and
o to amend, at any time or from time to time, the terms of the Solicitation,
including, without limitation, by revising the terms of the Proposed Amendments
or by establishing a new Record Date.
Any extension of the Expiration Date will be effective if we give oral or
written notice thereof to the Trustee no later than 9:00 a.m. (and, if such
notice is given orally, followed by written notice to the Trustee and the
Solicitation Agent (given by facsimile or otherwise) no later than 4:00 p.m.),
New York City time, on the first Business Day (as defined in the Indenture)
following any previously announced Expiration Date. Any termination or amendment
of the Solicitation will be effective upon written notice thereof to the
Trustee. Any extension, termination or amendment will be followed as promptly as
practicable by written notice thereof to the Registered Holders as of the Record
Date. Such notice may provide that we are extending the Solicitation for a
specified period of time or on a daily basis until 5:00 p.m., New York City
time, on the date on which the Requisite Consents are received. Failure of any
Registered Holder to receive such notice will not affect the extension,
termination or amendment of the Solicitation.
If the Solicitation is amended in a manner determined by us to
materially affect holders of the Notes prior to the Expiration Date, we will
promptly disclose such amendment and may, if appropriate, extend the
Solicitation for a period adequate to permit Registered Holders to properly
deliver or revoke their Consents. Other than as set forth in this Consent
Solicitation Statement, once delivered, Consents may not be revoked.
CONDITIONS OF THE SOLICITATION
Notwithstanding any other provision of this Consent Solicitation
Statement, the effectiveness of the Proposed Amendments is conditioned upon:
o the receipt of the Requisite Consents and the execution of the Third
Supplemental Indenture; and
o satisfaction of the General Conditions defined below.
We may, in our reasonable discretion, waive any or all of these General
Conditions. We may not, however, waive the condition with respect to the
receipt of the Requisite Consents or the execution of the Third Supplemental
Indenture.
The "General Conditions" will be deemed to have been satisfied on the
Expiration Date, unless, on or after the date hereof and prior to the Expiration
Date, there shall have been instituted or threatened or be pending any action,
suit or other proceeding or investigation by any governmental authority or
agency or any other person that:
o questions the legality, validity, binding effect, enforceability or
effectiveness of the Proposed Amendments or the entering into the Third
Supplemental Indenture;
o seeks to have the Notes paid prior to maturity or which questions the accuracy
or completeness of any of the statements made in or incorporated by reference
into this Consent Solicitation Statement or in any of the other documents
referred to herein; or
o if adversely determined, would make unlawful or invalid, would enjoin the
implementation of, or would impose damages as a result of, any of the foregoing.
REVOCATION OF CONSENTS
Each properly completed and duly executed Consent will be counted,
notwithstanding any subsequent transfer of the Notes to which such Consent
relates, unless such Consent has been validly revoked in accordance with the
procedures described below. A Consent or revocation thereof delivered by a
Registered Holder on or after the Record Date shall be deemed to supersede any
earlier Consent or revocation relating to the same Notes.
Prior to the Expiration Date, any Registered Holder may revoke any
Consent given as to any or all of its Notes (in integral multiples of U.S.
$1,000). A Registered Holder desiring to revoke a Consent must, prior to the
Expiration Date, deliver to the Information and Tabulation Agent, by mail, hand
delivery, overnight courier or facsimile (confirmed by receipt of physical
delivery of the executed original), a written revocation of such Consent
containing the name(s) and address(es) of such Registered Holder, the principal
amount of Notes to which such revocation relates, the Registered Holder's DTC
Participant Number, if any, and the guaranteed signature of such Registered
Holder, if a signature guarantee was initially required for the Consent.
Consents not properly or timely revoked will become irrevocable on the
Expiration Date.
A revocation must be executed by a Registered Holder exactly as the
name of such Registered Holder appears on the Consent to which such revocation
relates. If a revocation is signed by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other Registered Holder
acting in a fiduciary or representative capacity, such person must so indicate
when signing and must submit to the Information and Tabulation Agent appropriate
evidence (satisfactory to us) of such person's authority to so act, along with
the revocation. A revocation shall be effective only as to the Notes identified
in the revocation and only if such revocation complies with the provisions of
this Consent Solicitation Statement.
Any beneficial owner whose Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to revoke a Consent should contact such broker, dealer, commercial bank, trust
company or other nominee promptly and instruct them to revoke such Consent.
A REGISTERED HOLDER WHO HAS DELIVERED A REVOCATION MAY THEREAFTER
DELIVER A NEW CONSENT BY FOLLOWING ONE OF THE PROCEDURES DESCRIBED ABOVE UNDER
"THE CONSENT SOLICITATION-PROCEDURE FOR CONSENTING" AT ANY TIME PRIOR TO THE
EXPIRATION DATE.
EXPENSES OF SOLICITATION
We will bear the expenses of preparing, printing and mailing this
Consent Solicitation Statement, including all exhibits, annexes, the form of
Consent and other related documents to Registered Holders as of the Record Date.
We will also bear all of our legal, accounting and other expenses. In addition
to solicitation by use of the mail, Consents may be solicited by directors,
officers, employees and agents of us in person or by telephone, telegram or
other means of communication. These directors, officers, employees and agents
will not be separately compensated for such solicitations but may be reimbursed
for out-of-pocket expenses incurred by them in connection with this consent
solicitation. Arrangements may also be made with brokerage houses, custodians,
nominees and fiduciaries for forwarding this Consent Solicitation Statement to
the beneficial owners of the Notes held of record by those parties, and we may
reimburse these entities for reasonable expenses incurred by them in connection
with their participation.
We have retained UBS Securities LLC ("UBS") as the Solicitation Agent
for solicitation and advisory services in connection with this Solicitation. UBS
will receive customary compensation from us for its services. UBS will also be
reimbursed for reasonable out-of-pocket expenses it incurs, including the
reasonable fees and expenses of its counsel, and will be indemnified by us
against certain liabilities, including liabilities under federal securities
laws, in either case incurred in connection with this Solicitation. UBS will
solicit Consents from individuals, brokers, bank nominees and other
institutional holders of the Notes.
We have also retained Global Bondholder Services Corporation as
Information and Tabulation Agent to assist us in connection with this
Solicitation and we will pay the Information and Tabulation Agent compensation
for such assistance. The Information and Tabulation Agent will also be
indemnified by us against certain liabilities and expenses it incurs in
connection with this Solicitation, including liabilities under the federal
securities laws.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material United States
federal income tax consequences to holders of delivering a Consent to the
Proposed Amendments and the implementation of the Proposed Amendments. The
following summary is intended for general informational purposes only. The
discussion is based upon provisions of the Code, the applicable Treasury
Regulations promulgated and proposed thereunder, judicial authority and current
administrative rulings and practice, all of which are subject to change,
possibly on a retroactive basis. This discussion does not purport to address all
aspects of United States federal income taxation that may be relevant to
particular holders in light of their individual circumstances or certain types
of holders subject to special treatment under the Code including, but not
limited to, insurance companies, tax exempt organizations, financial
institutions, dealers in securities or foreign currencies, persons holding the
Notes as part of a hedging or constructive sale transaction, "straddle,"
conversion transaction, or other integrated transaction, persons that have a
functional currency other than the U.S. dollar, investors in pass-through
entities and persons who are not citizens or residents of the United States or
who are foreign corporations, foreign partnerships or foreign estates or trusts
as to the United States. Nor does it discuss any aspect of state, local or
foreign taxation or estate and gift tax considerations. Accordingly, holders who
are considering delivering a Consent to the Proposed Amendments should consult
their tax advisor regarding the particular United States federal, state, local
and foreign income and other tax consequences applicable to them that would
result from the adoption of the Proposed Amendments. This discussion assumes
that the Notes are held as capital assets within the meaning of Section 1221 of
the Code by the holder thereof. No ruling has been or will be requested from the
Internal Revenue Service (the "IRS") regarding the tax consequences of the
adoption of the Proposed Amendments.
To comply with IRS Circular 230, holders are hereby notified that: (i)
any discussion of United States federal tax issues contained or referred to in
this Consent Solicitation Statement is not intended or written to be used, and
cannot be used by you for the purpose of avoiding penalties that may be imposed
on you under the Code; (ii) any such discussion is being used in connection with
the solicitation of consents by the Company; and (iii) you should seek advice
based on your particular circumstances from an independent tax advisor.
THIS SUMMARY IS FOR GENERAL PURPOSES ONLY. THIS SUMMARY IS NOT INTENDED
TO BE, AND SHOULD NOT BE CONSTRUED TO BE, LEGAL OR TAX ADVICE TO ANY PARTICULAR
BENEFICIAL OWNER OF NOTES. EACH HOLDER IS URGED TO CONSULT ITS OWN TAX ADVISOR
REGARDING THE UNITED STATES FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND OTHER
TAX CONSEQUENCES OF RECEIPT OF THE CONSENT FEE AND IMPLEMENTATION OF THE
PROPOSED AMENDMENTS.
CONSEQUENCES OF THE CONSENT SOLICITATION
Under general principles of United States federal income tax law, the
modification of a debt instrument triggers a deemed exchange (upon which gain or
loss is realized to holders) (a "Deemed Exchange") if the modification is
significant. Under Treasury Regulations, a modification of a debt instrument is
a "significant" modification, and therefore triggers a Deemed Exchange, if,
based on all the facts and circumstances and taking into account certain
modifications of the debt instrument collectively, the degree to which legal
rights or obligations are altered is "economically significant." The Treasury
Regulations further provide that a modification that adds, deletes or alters
customary accounting or financial covenants is not a significant modification.
We intend to take the position that, under the Treasury Regulations,
adoption of the Proposed Amendments will not cause a significant modification of
the terms of the Notes, and therefore, will not result in a Deemed Exchange of
the Notes for United States federal income tax purposes. If such position is
respected for United States federal income tax purposes, a holder will not
realize any gain or loss for United States federal income tax purposes solely as
a result of the adoption of the Proposed Amendments.
The IRS could assert, however, that as a result of the modifications
pursuant to the Proposed Amendments, a holder should be deemed to have exchanged
its Notes for "new" Notes. If such a position were taken and sustained, then the
tax consequences to the holders would depend upon, among other things, whether
the Deemed Exchange were to qualify as a tax-free recapitalization for United
States federal income tax purposes. If the Deemed Exchange does not qualify as a
tax-free recapitalization, holders would recognize taxable gain or loss on the
Deemed Exchange. Holders are urged to consult their own tax advisors as to the
amount and character of any gain or loss that would be recognized in the case of
a taxable Deemed Exchange, including the possibility of the "new" Notes being
issued with original issue discount.
TREATMENT OF THE CONSENT FEE
Due to the absence of authority directly on point, the tax consequences
of a holder's receipt of the Consent Fee is unclear. Holders of the Notes should
recognize ordinary income in the amount of the Consent Fee received for United
States federal income tax purposes.
BACKUP WITHHOLDING
Under current Treasury Regulations, in certain circumstances a holder
may be subject to backup withholding with respect to the Consent Fee, unless
such holder (i) is a corporation or is otherwise exempt and, when required,
demonstrates this fact or (ii) provides a correct taxpayer identification
number, certifies that it is not currently subject to backup withholding tax and
otherwise complies with the applicable requirements of the backup withholding
rules.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. Our SEC filings
are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the SEC
at the SEC's public reference room at 100 F Street, N.E., Room 1580, Washington,
DC 20549.
You may also obtain copies of our SEC filings at prescribed rates by
writing to the Public Reference Section of the SEC at 100 F Street, N.E., Room
1580, Washington, DC 20549. Please call l-800-SEC-0330 for further information
on the operations at the public reference room. Our SEC filings are also
available at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
Copies of the Indenture are also available from us upon request.
Requests for such copies should be directed to the Information and Tabulation
Agent at the address and telephone numbers set forth on the back cover of this
Consent Solicitation Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The documents listed below have been filed by us under the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act"), with the SEC
and are incorporated by reference in this Consent Solicitation Statement:
o Annual Report on Form 10-K for the year ended December 31, 2005;
o Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2006;
o Current Reports on Form 8-K filed on January 12, 2006, February 3, 2006,
February 13, 2006, March 10, 2006, March 30, 2006, April 25, 2006 and May 8,
2006; and
o Definitive proxy statement filed on April 12, 2006.
We are also incorporating by reference into this Consent Solicitation
Statement all documents that we have filed or will file with the SEC as
prescribed by Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
since the date of this Consent Solicitation Statement and prior to the
Expiration Date.
This means that important information about us appears or will appear
in these documents and will be regarded as appearing in this Consent
Solicitation Statement. To the extent that information appearing in a document
filed later is inconsistent with prior information, the later statement will
control and the prior information, except as modified or superseded, will no
longer be a part of this Consent Solicitation Statement.
Copies of all documents which are incorporated by reference in this
Consent Solicitation Statement (not including the exhibits to such information,
unless such exhibits are specifically incorporated by reference) will be
provided without charge to each person to whom this Consent Solicitation
Statement is delivered, upon written or oral request. Requests should be
directed to our secretary, 3333 New Hyde Park Road, New Hyde Park, New York
11042-0020 (telephone number: (516) 869-9000). You may also obtain copies of
these filings, at no cost, by accessing our website at
http://www.kimcorealty.com; however, the information found on our website is not
considered part of this Consent Solicitation Statement.
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION
THAT DIFFERS FROM, OR ADDS TO, THE INFORMATION IN THIS CONSENT SOLICITATION
STATEMENT OR IN THE DOCUMENTS THAT WE FILE WITH THE SEC. IF ANYONE PROVIDES YOU
WITH DIFFERENT OR ADDITIONAL INFORMATION, YOU SHOULD NOT RELY ON IT.
EXHIBIT A
PROVISIONS CURRENTLY IN EFFECT
THE FOLLOWING PROVISIONS OF THE INDENTURE, DATED AS OF SEPTEMBER 1, 1993 (AS
AMENDED BY THE FIRST SUPPLEMENTAL INDENTURE, DATED AS OF AUGUST 4, 1994, AND THE
SECOND SUPPLEMENTAL INDENTURE, DATED AS OF APRIL 7, 1995) (COLLECTIVELY, THE
"INDENTURE"), BETWEEN US AND THE BANK OF NEW YORK, AS TRUSTEE, ARE CURRENTLY IN
EFFECT:
SECTION 1004. Limitations on Incurrence of Debt.
---------------------------------
(a) The Company will not, and will not permit any Subsidiary to, incur any Debt,
if, immediately after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 65% of the sum of (i) the Company's Undepreciated Real Estate
Assets as of the end of the calendar quarter covered in the Company's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under
the Securities Exchange Act of 1934, with the Trustee) prior to the incurrence
of such additional Debt and (ii) the purchase price of any real estate assets
acquired by the Company or any Subsidiary since the end of such calendar
quarter, including those obtained in connection with the incurrence of such
additional Debt.
* * *
(c) In addition to the limitations set forth in subsections (a) and (b) of this
Section 1004, the Company will not, and will not permit any Subsidiary to, incur
any Debt secured by any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the property of the Company or any Subsidiary,
whether owned at the date hereof or hereafter acquired, if, immediately after
giving effect to the incurrence of such additional Debt, the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries which is
secured by any mortgage, lien, charge, pledge, encumbrance or security interest
on property of the Company and its Subsidary is greater than 40% of the sum of
(i) the Company's Undepreciated Real Estate Assets as of the end of the calendar
quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the Commission (or,
if such filing is not permitted under the Securities Exchange Act of 1934, with
the Trustee) prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets acquired by the Company or any
Subsidiary since the end of such calendar quarter, including those obtained in
connection with the incurrence of such additional Debt.
The following defined terms are used in Section 1004 of the Indenture:
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company or any Subsidiary,
(iii) letters of credit or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) any lease of property by the Company
or any Subsidiary as lessee which is reflected on the Company's Consolidated
Balance Sheet as a capitalized lease in accordance with GAAP, in the case of
items of indebtedness under (i) through (iii) above to the extent that any such
items (other than letters of credit) would appear as a liability on the
Company's Consolidated Balance Sheet in accordance with GAAP, and also includes,
to the extent not otherwise included, any obligation of the Company or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary).
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis.
"Undepreciated Real Estate Assets" means as of any date the amount of
real estate assets of the Company and its Subsidiaries on such date, before
depreciation and amortization determined on a consolidated basis in accordance
with GAAP.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
EXHIBIT B
PROVISIONS THAT WOULD BECOME OPERATIVE IF THE PROPOSED AMENDMENTS ARE
APPROVED AND THE THIRD SUPPLEMENTAL INDENTURE IS IMPLEMENTED
THE FOLLOWING PROVISIONS OF THE THIRD SUPPLEMENTAL INDENTURE TO THE INDENTURE
BETWEEN US AND THE BANK OF NEW YORK, AS TRUSTEE, WILL BECOME OPERATIVE IF THE
PROPOSED AMENDMENTS ARE APPROVED AND THE THIRD SUPPLEMENTAL INDENTURE IS
IMPLEMENTED:
SECTION 1004. Limitations on Incurrence of Debt.
---------------------------------
(a) The Company will not, and will not permit any Subsidiary to, incur any Debt,
if, immediately after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 65% of Total Assets as of the end of the calendar quarter covered
in the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Securities Exchange Act of 1934, with the Trustee) prior
to the incurrence of such additional Debt.
* * *
(c) In addition to the limitations set forth in subsections (a) and (b) of this
Section 1004, the Company will not, and will not permit any Subsidiary to, incur
any Debt secured by any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the property of the Company or any Subsidiary,
whether owned at the date hereof or hereafter acquired, if, immediately after
giving effect to the incurrence of such additional Debt, the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries which is
secured by any mortgage, lien, charge, pledge, encumbrance or security interest
on property of the Company or any Subsidiary is greater than 40% of Total Assets
as of the end of the calendar quarter covered in the Company's Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the Commission (or, if such filing is not permitted under the
Securities Exchange Act of 1934, with the Trustee) prior to the incurrence of
such additional Debt.
Section 1004, as amended, will include the following additional defined term:
"Total Assets" means, as of any date, the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with GAAP (but excluding goodwill and amortized debt
costs).
THE SOLICITATION AGENT FOR THIS SOLICITATION IS:
UBS INVESTMENT BANK
677 WASHINGTON BLVD.
STAMFORD, CT 06901
(203) 719-4210 (CALL COLLECT)
(888) 722-9555 EXT. 4210 (TOLL FREE)
ATTN: LIABILITY MANAGEMENT GROUP
Any questions concerning the terms of this Solicitation may be directed
to the Solicitation Agent.
THE INFORMATION AND TABULATION AGENT FOR THIS SOLICITATION IS:
GLOBAL BONDHOLDER SERVICES CORPORATION
65 BROADWAY, SUITE 723
NEW YORK, NY 10006
ATTENTION: CORPORATE ACTIONS
(212) 430-3774 (CALL COLLECT)
(866) 470-3700
BY FACSIMILE TRANSMISSION: BY HAND DELIVERY, MAIL OR OVERNIGHT COURIER:
212-430-3775 GLOBAL BONDHOLDER SERVICES CORPORATION
65 BROADWAY--SUITE 723
NEW YORK, NY 10006
THE TRUSTEE UNDER THE INDENTURE IS:
THE BANK OF NEW YORK
ALL CONSENTS AND REVOCATIONS OF CONSENTS SHOULD BE SENT TO THE INFORMATION AND
TABULATION AGENT AT THE ADDRESS SPECIFIED ABOVE. REQUESTS FOR ASSISTANCE IN
COMPLETING AND DELIVERING CONSENTS, OR FOR ADDITIONAL COPIES OF THE CONSENT OR
THIS CONSENT SOLICITATION STATEMENT, SHOULD BE DIRECTED TO THE INFORMATION AND
TABULATION AGENT. QUESTIONS CONCERNING THE TERMS OF THE SOLICITATION SHOULD BE
DIRECTED TO THE SOLICITATION AGENT.