-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Mq9Ax9k+bsWApRbd23cyUcWrwlvd1CrTLWYUC26rhEuujtWdMc+ZPjRox4l9E41S sllLsloPOhc7X1A8gY1IdA== 0001125282-06-003105.txt : 20060530 0001125282-06-003105.hdr.sgml : 20060529 20060530164208 ACCESSION NUMBER: 0001125282-06-003105 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20060530 ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060530 DATE AS OF CHANGE: 20060530 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KIMCO REALTY CORP CENTRAL INDEX KEY: 0000879101 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 132744380 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-10899 FILM NUMBER: 06874446 BUSINESS ADDRESS: STREET 1: 3333 NEW HYDE PARK RD STREET 2: PO BOX 5020 CITY: NEW HYDE PARK STATE: NY ZIP: 11042 BUSINESS PHONE: 5168699000 MAIL ADDRESS: STREET 1: 3333 NEW HYDE PARK ROAD STREET 2: PO BOX 5020 CITY: NEW HYDE PARKQ STATE: NY ZIP: 11042 8-K 1 b413516_8k.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): May 30, 2006 Kimco Realty Corporation (Exact Name of Registrant as Specified in Charter) Maryland 1-10899 13-2744380 - ---------------------------- -------------- ------------------ (State or Other Jurisdiction (Commission (I.R.S. Employer of Incorporation) File Number) Identification No.) 3333 New Hyde Park Road New Hyde Park, New York 11042-0020 (Address of Principal Executive Offices) -------------------- (516) 869-9000 (Registrant's telephone number, including area code) (Former name of former address if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. Below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR240.14d-2b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) TABLE OF CONTENTS ITEM 7.01 REGULATION FD DISCLOSURE ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS SIGNATURES ITEM 7.01. REGULATION FD DISCLOSURE. On May 30, 2006, Kimco Realty Corporation ("Kimco Realty") announced that it is amending certain of the terms of the previously announced consent solicitation (the "Consent Solicitation") that it commenced on May 16, 2006 relating to its Medium-Term Notes and Senior Notes in the aggregate principal amount outstanding of $1,922,000,000. A copy of the press release announcing the amendments to the Consent Solicitation and the Canadian Consent Solicitation is furnished as Exhibit 99.1 to this report. The amendments to the terms and conditions of the Consent Solicitation are described in a Consent Solicitation Statement Supplement dated May 30, 2006, which is furnished as Exhibit 99.2 to this report. Concurrently with the amendments to the terms of the Consent Solicitation, on May 30, 2006, Kimco North Trust III ("Kimco North"), a wholly-owned entity of Kimco Realty, announced that it is amending certain of the terms of the previously announced consent solicitation (the "Canadian Consent Solicitation") that Kimco North commenced on May 16, 2006 relating to its 4.45% Canadian Debentures due 2010 in the aggregate principal amount outstanding of C$150,000,000. The amendments to the terms and conditions of the Canadian Consent Solicitation are described in a Consent Solicitation Statement Supplement dated May 30, 2006, which is furnished as Exhibit 99.3 to this report. The information in this report, being furnished pursuant to Item 7.01 of Form 8-K, shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, and is not incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing. ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (a) Not applicable. (b) Not applicable. (c) Not applicable. (d) Exhibits. The following are furnished as Exhibits to this Report. 99.1 Press Release dated May 30, 2006. 99.2 Consent Solicitation Statement Supplement of Kimco Realty Corporation dated May 30, 2006. 99.3 Consent Solicitation Statement Supplement of Kimco North Trust III dated May 30, 2006. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: May 30, 2006 KIMCO REALTY CORPORATION (registrant) By: /s/ Michael V. Pappagallo --------------------------------- Name: Michael V. Pappagallo Its: Executive Vice President and Chief Financial Officer EX-99.1 2 b413516ex99_1.txt EXHIBIT 99.1 EXHIBIT 99.1 KIMCO REALTY AND KIMCO NORTH TRUST III ANNOUNCE AMENDMENTS TO CONSENT SOLICITATIONS NEW HYDE PARK, N.Y., May 30, 2006 - Kimco Realty Corporation (NYSE: KIM) ("Kimco Realty") today announced that it is amending certain of the terms of the previously announced consent solicitation that it commenced on May 16, 2006 relating to its Medium-Term Notes and Senior Notes in the aggregate principal amount outstanding of $1,922,000,000 (the "Notes"). Kimco Realty is seeking consents from the holders of the Notes to proposed amendments to the debt covenants in the indenture governing the Notes (the "Indenture"). The consent solicitation consists of the following: -- 6.930% Medium-Term Notes due 2006 (CUSIP No. 49446QAL5); -- Floating Rate Medium-Term Notes due 2006 (CUSIP No. 49446QAZ4); -- 7.460% Medium-Term Notes due 2007 (CUSIP No. 49446QAF8); -- 6.960% Medium-Term Notes due 2007 (CUSIP No. 49446QAH4); -- 7.860% Medium-Term Notes due 2007 (CUSIP No. 49446QAT8); -- 7.900% Medium-Term Notes due 2007 (CUSIP No. 49446QAQ4); -- 6.700% Medium-Term Notes due 2007 (CUSIP No. 49446QAD3); -- 3.950% Medium-Term Notes due 2008 (CUSIP No. 49446QAX9); -- 7.560% Medium-Term Notes due 2009 (CUSIP No. 49446QAG6); -- 7.060% Medium-Term Notes due 2009 (CUSIP No. 49446QAJ0); -- 4.620% Medium-Term Notes due 2010 (CUSIP No. 49446QAW1); -- 5.304% Medium-Term Notes due 2011 (CUSIP No. 49446QBE0); -- 4.820% Medium-Term Notes due 2011 (CUSIP No. 49446QBA8); -- 5.980% Medium-Term Notes due 2012 (CUSIP No. 49446QAV3); -- 5.190% Medium-Term Notes due 2013 (CUSIP No. 49446QAY7); -- 4.820% Medium-Term Notes due 2014 (CUSIP No. 49446QBC4); -- 4.904% Medium-Term Notes due 2015 (CUSIP No. 49446QBB6); -- 5.584% Medium-Term Notes due 2015 (CUSIP No. 49446QBD2); -- 5.783% Medium-Term Notes due 2016 (CUSIP No. 49446QBF7); -- 4.961% Senior Notes due 2007 (CUSIP No. 49446RAF6); -- 6.875% Senior Notes due 2009 (CUSIP No. 49446RAE9); and -- 6.00% Senior Notes due 2012 (CUSIP No. 49446RAG4). Pursuant to the amendments to the terms of the consent solicitation, Kimco Realty is now offering a consent fee of $2.50 per $1,000 principal amount to the holders of all series of Notes that have maturity dates of 2010 or later and timely consent to the proposed amendments at or prior to the Expiration Date (defined below) and $1.25 per $1,000 principal amount to the holders of all series of Notes that have maturity dates of 2009 or earlier and timely consent to the proposed amendments at or prior to the Expiration Date. In addition, the expiration date of the consent solicitation has now been extended until 5:00 p.m., New York City time, on Friday, June 2, 2006, unless further extended (the "Expiration Date"). Kimco Realty remains committed to the current ratings and to protecting its corporate credit investing constituency. As a result, pursuant to the amendments to the terms of the consent solicitation, Kimco Realty is also seeking to amend the maintenance of Unencumbered Total Asset Value covenant in the Indenture by increasing the requirement of the ratio of Unencumbered Total Asset Value to outstanding unsecured Debt from 1 to 1 to 1.5 to 1. Except as set forth above, all terms and conditions of the consent solicitation remain unchanged and in full force and effect. Holders of the Notes who have already properly delivered their consents with respect to any series of Notes do not need to deliver new consents. Consents (whether previously or hereafter delivered) may only be revoked in the manner described in the consent solicitation statement, as supplemented. The consent solicitation may be amended, extended or terminated, at the option of Kimco Realty. For a complete statement of the terms and conditions of the consent solicitation, holders of the Notes should refer to the consent solicitation statement, dated as of May 16, 2006, as supplemented by the consent solicitation statement supplement, dated as of May 30, 2006, which is being sent to all holders of the Notes as of the record date of May 15, 2006. Concurrently with the amendments to the terms of the consent solicitation, Kimco North Trust III ("Kimco North"), a wholly-owned entity of Kimco Realty, today announced that it is amending certain of the terms of the previously announced Canadian consent solicitation that Kimco North commenced on May 16, 2006 relating to its 4.45% Canadian Debentures due 2010 in the aggregate principal amount outstanding of C$150,000,000 (the "Canadian Notes") to (i) extend the expiration date of the Canadian consent solicitation until 5:00 p.m., New York City time, on Friday, June 2, 2006, unless further extended; (ii) offer a consent fee of C$2.50 per C$1,000 principal amount to the holders of Canadian Notes that timely consent to the proposed amendments at or prior to the Expiration Date; and (iii) give effect to the increased ratio requirement of Unencumbered Total Asset Value to outstanding unsecured Debt from 1 to 1 to 1.5 to 1, which would govern the Canadian Notes. Except as set forth above, all terms and conditions of the Canadian consent solicitation remain unchanged and in full force and effect. Holders of the Canadian Notes who have already properly delivered their consents do not need to deliver new consents. Consents (whether previously or hereafter delivered) may only be revoked in the manner described in the Canadian consent solicitation statement, as supplemented. The Canadian consent solicitation may be amended, extended or terminated, at the option of Kimco North. For a complete statement of the terms and conditions of the Canadian consent solicitation, holders of the Canadian Notes should refer to the Canadian consent solicitation statement, dated as of May 16, 2006, as supplemented by the Canadian consent solicitation statement supplement, dated as of May 30, 2006, which is being sent to all holders of the Canadian Notes as of the record date of May 15, 2006. The Solicitation Agent in connection with the consent solicitation is UBS Securities LLC. Questions regarding the consent solicitation may be directed to UBS Securities LLC, Attention: Liability Management Group at (888) 722-9555 Ext. 4210 (toll free) or (203) 719-4210 (collect). Global Bondholder Services Corporation is serving as Information and Tabulation Agent in connection with the consent solicitation. Requests for assistance in delivering consents or for additional copies of the consent solicitation statement should be directed to the Information and Tabulation Agent at (866) 470-3700 (toll free) or (212) 430-3774 (collect). This announcement is not an offer to purchase, a solicitation of an offer to purchase, or a solicitation of consents with respect to any securities. The consent solicitation and the Canadian consent solicitation are being made solely by the consent solicitation statement (as supplemented) and the Canadian consent solicitation statement (as supplemented), respectively, and are subject to the terms and conditions stated therein. Kimco Realty and Kimco North reserve the right to modify the consent solicitation statement and the Canadian consent solicitation statement, respectively, or to terminate the consent solicitation or Canadian consent solicitation, respectively. Kimco, a publicly traded real estate investment trust, has specialized in shopping center acquisitions, development and management for more than 45 years, and owns and operates the nation's largest portfolio of neighborhood and community shopping centers with interests in 1,117 properties comprising approximately 143.2 million square feet of leasable space located throughout 45 states, Canada, Mexico and Puerto Rico. Please visit http://www.kimcorealty.com to learn more about Kimco. Safe Harbor Statement: The statements in this release state Kimco's and management's hopes, intentions, beliefs, expectations or projections of the future and are forward-looking statements. It is important to note that Kimco's actual results could differ materially from those projected in such forward-looking statements. Factors that could cause actual results to differ materially from current expectations include general economic conditions, local real estate conditions, increases in interest rates, increases in operating costs and real estate taxes. Additional information concerning factors that could cause actual results to differ materially from those forward-looking statements is contained from time to time in Kimco Realty's filings with the Securities and Exchange Commission, including but not limited to Kimco Realty's report on Form 10-K for the year ended December 31, 2005. Copies of each filing may be obtained from Kimco Realty or the SEC. Contact: Kimco Realty Corporation Scott Onufrey (516) 869-7190 sonufrey@kimcorealty.com EX-99.2 3 b413516ex99_2.txt EXHIBIT 99.2 EXHIBIT 99.2 CONSENT SOLICITATION STATEMENT SUPPLEMENT KIMCO REALTY CORPORATION SOLICITATION OF CONSENTS TO AMEND CERTAIN PROVISIONS OF THE INDENTURE GOVERNING THE FOLLOWING NOTES:
Outstanding Principal Consent Fee per $1,000 Notes CUSIP Number Amount Principal Amount ----- ------------ ------ ---------------- 6.930% Medium-Term Notes due 2006.............. 49446QAL5 $ 30,000,000 $ 1.25 Floating Rate Medium-Term Notes due 2006....... 49446QAZ4 $ 100,000,000 $ 1.25 7.460% Medium-Term Notes due 2007.............. 49446QAF8 $ 30,000,000 $ 1.25 6.960% Medium-Term Notes due 2007.............. 49446QAH4 $ 20,000,000 $ 1.25 7.860% Medium-Term Notes due 2007.............. 49446QAT8 $ 50,000,000 $ 1.25 7.900% Medium-Term Notes due 2007.............. 49446QAQ4 $ 50,000,000 $ 1.25 6.700% Medium-Term Notes due 2007.............. 49446QAD3 $ 10,000,000 $ 1.25 3.950% Medium-Term Notes due 2008.............. 49446QAX9 $ 100,000,000 $ 1.25 7.560% Medium-Term Notes due 2009.............. 49446QAG6 $ 20,000,000 $ 1.25 7.060% Medium-Term Notes due 2009.............. 49446QAJ0 $ 30,000,000 $ 1.25 4.620% Medium-Term Notes due 2010.............. 49446QAW1 $ 50,000,000 $ 2.50 5.304% Medium-Term Notes due 2011.............. 49446QBE0 $ 100,000,000 $ 2.50 4.820% Medium-Term Notes due 2011.............. 49446QBA8 $ 100,000,000 $ 2.50 5.980% Medium-Term Notes due 2012.............. 49446QAV3 $ 17,000,000 $ 2.50 5.190% Medium-Term Notes due 2013.............. 49446QAY7 $ 100,000,000 $ 2.50 4.820% Medium-Term Notes due 2014.............. 49446QBC4 $ 200,000,000 $ 2.50 4.904% Medium-Term Notes due 2015.............. 49446QBB6 $ 100,000,000 $ 2.50 5.584% Medium-Term Notes due 2015.............. 49446QBD2 $ 150,000,000 $ 2.50 5.783% Medium-Term Notes due 2016.............. 49446QBF7 $ 300,000,000 $ 2.50 4.961% Senior Notes due 2007................... 49446RAF6 $ 35,000,000 $ 1.25 6.875% Senior Notes due 2009................... 49446RAE9 $ 130,000,000 $ 1.25 6.00% Senior Notes due 2012.................... 49446RAG4 $ 200,000,000 $ 2.50 ----------------- $ 1,922,000,000 =================
This Supplement hereby amends, supplements, modifies and becomes a part of, as of the date hereof, the Consent Solicitation Statement, dated May 16, 2006 (the "Consent Solicitation Statement" and, as supplemented hereby, the "Supplemented Consent Solicitation Statement), relating to all series of the notes of Kimco Realty Corporation listed above. (Capitalized terms used, but not defined in the Supplement, have the meanings given in the Consent Solicitation Statement.) All references to any requirements regarding the Consent Solicitation Statement contained in any document used by or on behalf of the Company in connection with the consent solicitation shall be deemed to refer to the Supplemented Consent Solicitation Statement. The Solicitation Agent for the consent solicitation is: UBS Investment Bank This Consent Solicitation Statement Supplement is dated May 30, 2006. 1 The Consent Solicitation Statement is hereby supplemented, amended and modified as follows: Summary: The section of the Consent Solicitation Statement titled "Summary" is hereby amended by deleting the subsections titled "Purpose of the Consent Solicitation," "Consent Fee," and "Expiration Date" contained therein, and replacing such subsections with the following: 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. We remain committed to the current ratings and to protecting our corporate credit investing constituency. As a result, we are also seeking to change our maintenance of unencumbered total asset value covenant by increasing the ratio of Unencumbered Total Asset Value to outstanding unsecured Debt from 1 to 1 to 1.5 to 1. 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 of 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. If all conditions are satisfied, a consent fee of C$2.50 per C$1,000 principal amount of the CAD Notes will be paid to the holders of the CAD Notes that timely consent to the same proposed amendments under the CAD Notes at or prior to the Expiration Date. 2 CONSENT FEE Consent fees applicable to such series of Notes set forth on the first page of this Supplement (the "Consent Fee") 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. EXPIRATION DATE The Expiration Date is 5:00 p.m., New York City time, on Friday, June 2, 2006, unless extended. 3 Purpose of the Consent Solicitation: This section of the Consent Solicitation Statement titled "Purpose of the Consent Solicitation" is hereby amended and restated as follows: 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. As a result, we are also seeking to change our maintenance of unencumbered total asset value covenant by increasing the ratio of Unencumbered Total Asset Value to outstanding unsecured Debt from 1 to 1 to 1.5 to 1. 4 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 o Under Section 1004(a) of the Indenture, the will not incur any Debt, if, immediately after giving effect Company will not incur any Debt, if, immediately after to the incurrence of such additional Debt, the aggregate giving effect to the incurrence of such additional Debt, principal amount of all outstanding Debt of the Company and the aggregate principal amount of all outstanding Debt of its Subsidiaries on a consolidated basis determined in the Company and its Subsidiaries on a consolidated basis accordance with GAAP is greater than 65% of the sum of (i) determined in accordance with GAAP is greater than 65% of the Company's Undepreciated Real Estate Assets as of the end Total Assets as of the end of the calendar quarter covered of the calendar quarter covered in the Company's Annual in the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-K or Quarterly Report on Form 10-Q, as the Report on Form 10-Q, as the case may be, most recently case may be, most recently filed with the Commission (or, if filed with the Commission (or, if such filing is not such filing is not permitted under the Securities Exchange permitted under the Securities Exchange Act of 1934, with Act of 1934, with the Trustee) prior to the incurrence of the Trustee) prior to the incurrence of such additional such additional Debt and (ii) the purchase price of any real Debt. estate assets acquired by the Company or any Subsidiary since the end of such calendar quarter, including those The following additional defined term will be included in obtained in connection with the incurrence of such Section 1004(a). 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 o Under Section 1004(c) of the Indenture, the will not, incur any secured Debt if, immediately after Company will not incur any secured Debt if, immediately giving effect to the incurrence of such additional Debt, the after giving effect to the incurrence of such additional aggregate principal amount of all outstanding Debt of the Debt, the aggregate principal amount of all outstanding Company and its Subsidiaries which is secured is greater Debt of the Company and its Subsidiaries which is secured than 40% of the sum of (i) the Company's Undepreciated Real is greater than 40% of Total Assets as of the end of the Estate Assets as of the end of the calendar quarter covered calendar quarter covered in the Company's Annual Report on in the Company's Annual Report on Form 10-K or Quarterly Form 10-K or Quarterly Report on Form 10-Q, as the case Report on Form 10-Q, as the case may be, most recently filed may be, most recently filed with the Commission (or, if with the Commission (or, if such filing is not permitted such filing is not permitted under the Securities Exchange under the Securities Exchange Act of 1934, with the Trustee) Act of 1934, with the Trustee) prior to the incurrence of prior to the incurrence of such additional Debt and (ii) the such additional Debt. purchase price of any real estate assets acquired by the Company or any Subsidiary since the end of such calendar The following additional defined term will be included in quarter, including those obtained in connection with the Section 1004(c). 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 1014 of the Indenture, the Company o Under Section 1014 of the Indenture, the Company will maintain an Unencumbered Total Asset Value in an amount will maintain an Unencumbered Total Asset Value in an not less than 100% of the aggregate principal amount of all amount not less than 150% of the aggregate principal outstanding Debt of the Company and its Subsidiaries that is amount of all outstanding Debt of the Company and its unsecured. Subsidiaries that is unsecured. - -------------------------------------------------------------- ------------------------------------------------------------
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). 5 The Consent Solicitation: The section of the Consent Solicitation Statement titled "The Consent Solicitation" is hereby amended by deleting the subsections titled "Consent Fee," and "Expiration Date, Extensions, Termination and Amendment" contained therein, and replacing such subsections with the following: Consent Fee We will pay each Registered Holder of the Notes whose Consents have been accepted in this Solicitation a consent fee applicable to such series of Notes set forth on the first page of this Supplement 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. Expiration Date, Extensions, Termination and Amendment The term "Expiration Date" means 5:00 p.m., New York City time, on Friday, June 2, 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. 6 Exhibit A: Exhibit A of the Consent Solicitation Statement is hereby amended and restated as follows: 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. SECTION 1014. Maintenance of Unencumbered Total Asset Value. The Company will at all times maintain an Unencumbered Total Asset Value in an amount of not less than one hundred percent (100%) of the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries that is unsecured; this covenant shall apply solely to the benefit of Holders of series of Securities created on or after April 7, 1995. A-1 The following defined terms are used in Section 1004 and 1014 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. "Unencumbered Total Asset Value" means, as of any date, the sum of the Company's Total Assets which are unencumbered by any mortgage, lien, charge, pledge or security interest that secures payment of any obligations under any Debt. "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. "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). A-2 Exhibit B: Exhibit B of the Consent Solicitation Statement is hereby amended and restated as follows: 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 1014. Maintenance of Unencumbered Total Asset Value. The Company will at all times maintain an Unencumbered Total Asset Value in an amount of not less than one hundred fifty percent (150%) of the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries that is unsecured; this covenant shall apply solely to the benefit of Holders of series of Securities created on or after April 7, 1995. B-1 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. EX-99.3 4 b413516ex99_3.txt EXHIBIT 99.3 EXHIBIT 99.3 CONSENT SOLICITATION STATEMENT SUPPLEMENT KIMCO NORTH TRUST III SOLICITATION OF CONSENTS TO AMEND CERTAIN PROVISIONS OF THE INDENTURE PROVIDING FOR THE ISSUANCE OF C$150,000,000 SERIES 1 4.45 % NOTES MATURING 2010 CUSIP NUMBER: 49446PAA1 ISIN CODE: CA49446PAA18 This Supplement hereby amends, supplements, modifies and becomes a part of, as of the date hereof, the Consent Solicitation Statement, dated May 16, 2006 (the "Consent Solicitation Statement" and, as supplemented hereby, the "Supplemented Consent Solicitation Statement), relating to all Series 1 4.45 % Notes Maturing 2010 of Kimco North Trust III. (Capitalized terms used, but not defined in this Supplement, have the meanings given in the Consent Solicitation Statement.) All references to any requirements regarding the Consent Solicitation Statement contained in any document used by or on behalf of the Issuer in connection with the Solicitation (including, without limitation, the Consent) shall be deemed to refer to the Supplemented Consent Solicitation Statement. Concurrently with the amendment to the terms of the Solicitation, the Guarantor is amending certain of the terms of the Guarantor Consent Solicitation in order to (i) extend the expiration date of the Guarantor Consent Solicitation until 5:00 p.m., New York City time, on Friday, June 2, 2006, unless further extended, (ii) offer a consent fee of US$2.50 per $1,000 principal amount to the holders of all series of its notes that have maturity dates of 2010 or later and timely consent to the proposed amendments at or prior to the Expiration Date (defined below) and US$1.25 per $1,000 principal amount to the holders of all series of its notes that have maturity dates of 2009 or earlier and timely consent to the proposed amendments at or prior to the Expiration Date, and (iii) amend the maintenance of unencumbered total asset value covenant in the Guarantor Indenture by increasing the ratio of Unencumbered Total Asset Value to outstanding unsecured Debt from 1 to 1 to 1.5 to 1. See the Guarantor Consent Solicitation Statement Supplement of the Guarantor dated May 30, 2006, a copy of which is attached as Exhibit A hereto (the "Guarantor Consent Solicitation Statement Supplement") for a description of the proposed amendments. All other terms of the Guarantor Consent Solicitation remain unchanged. The purpose of this Supplement is to give effect, under the Solicitation, to the adoption of the amendments proposed under the Guarantor Consent Solicitation Statement Supplement. The Solicitation Agent for the consent solicitation is: UBS Investment Bank This Consent Solicitation Statement Supplement is dated May 30, 2006. The Consent Solicitation Statement is hereby supplemented, amended and modified as follows: The expiration date of the Solicitation is hereby extended until 5:00 p.m., New York City time, on Friday, June 2, 2006, unless further extended, and all references in the Consent Solicitation Statement to the "Expiration Date" shall be deemed modified accordingly. The consent fee payable to Registered Holders of the Notes that timely consent to the Proposed Amendments at or prior to the Expiration Date, in accordance with the terms and conditions of the Consent Solicitation Statement, shall be of C$2.50 per C$1,000 principal amount of the Notes and all references in the Consent Solicitation Statement to the "Consent Fee" shall be deemed modified accordingly. All references in the Consent Solicitation Statement to the "Guarantor Consent Solicitation Statement" shall be deemed to refer to such document as amended and supplemented by the Guarantor Consent Solicitation Statement Supplement. All references in the Consent Solicitation Statement to the Guarantor Indenture Amendments shall be deemed to include the additional proposed amendment to the Guarantor Indenture as set forth in the Guarantor Consent Solicitation Statement Supplement. The section of the Consent Solicitation Statement titled "Consent Solicitation" is hereby amended by deleting the subsections titled "Consent Fee" and "Expiration Date, Extensions, Termination and Amendment" contained therein, and replacing such subsections with the following: CONSENT FEE We will pay each Registered Holder of the Notes whose Consents have been accepted in this Solicitation a Consent Fee equal to C$2.50 for each C$1,000 principal amount of Notes as to which a Consent has been delivered by such Registered Holder. The Consent Fee will be paid promptly following the execution of the Amendment Documents. 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. EXPIRATION DATE, EXTENSIONS, TERMINATION AND AMENDMENT The term "Expiration Date" means 5:00 p.m., New York City time, on Friday, June 2, 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. -1- 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 Canadian 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. -2- EXHIBIT A GUARANTOR CONSENT SOLICITATION STATEMENT SUPPLEMENT (Attachment begins on next page.) 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 CANADIAN INDENTURE IS: BNY TRUST COMPANY OF CANADA 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. -----END PRIVACY-ENHANCED MESSAGE-----