, dated as of August 11, 1998 (this ""
or this "Agreement"), by and between Kimco Realty Corporation (the "Company")
and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"). WHEREAS, the Company proposes to issue $100,000,000 aggregate
principal amount of Remarketed Reset Notes Due August 18, 2008 (the "Notes"),
such Notes to be issued under an Indenture dated as of September 1, 1993, as
amended by the First Supplemental Indenture dated as of August 4, 1994, the
Second Supplemental Indenture dated as of April 7, 1995 and as further amended
or supplemented from time to time (the "Indenture"), by and between the Company
and IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "Trustee"); and WHEREAS,
the Notes are to be initially offered to the public through Xxxxxxx Xxxxx; and
WHEREAS, the Company has requested that Xxxxxxx Xxxxx act as Rate Agent (as
defined in Section 2(a) hereof) and as Remarketing Agent (as defined in Section
2(a) hereof) in connection with the Notes and as such to perform the services
described herein; and WHEREAS, Xxxxxxx Xxxxx is willing to act as Rate Agent and
as Remarketing Agent in connection with the Notes and as such to perform such
duties on the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Definitions. Capitalized terms used and not defined in this Agreement shall have
the respective meanings assigned to them in the Notes or, if not defined
therein, in the Indenture relating to the Notes.
Appointment and Obligations of Xxxxxxx Xxxxx. The Company hereby appoints
Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx hereby accepts such appointment, (i) as the
rate agent (the "Rate Agent") of the Company for the Notes to determine (1)
LIBOR and the interest rate on the Notes for any Quarterly Period, and/or (2)
the yield to maturity on the applicable United States Treasury security that is
used in connection with the determination of the applicable Fixed Rate, and the
ensuing applicable Fixed Rate and (ii) as the exclusive remarketing agent (the
"Remarketing Agent") for the purpose of (x) recommending to the Company the
Spread for each Subsequent Spread Period that, in the opinion of the Remarketing
Agent, will enable the Remarketing Agent to remarket, for delivery on the Tender
Date, tendered Notes at 100% of the principal amount thereof, (y) if the Company
and the Remarketing Agent agree on the Spread referred to in (x) above, entering
into a remarketing agency agreement (each, a "Remarketing Agency Agreement")
with the Company, substantially in the form attached hereto as Exhibit A,
pursuant to which the Remarketing Agent will attempt, on a reasonable best
efforts basis, to remarket the Notes tendered by the beneficial owners thereof
(the "Beneficial Owners") (each such attempted and/or completed remarketing
being hereinafter referred to as a "Remarketing"), and (z) performing such other
duties as are assigned to the Remarketing Agent in the Notes and/or the
Indenture and/or the applicable Remarketing Agency Agreement, in each case
subject to the conditions
set forth herein and therein. The Remarketing Agent shall also have the option,
but not the obligation, to purchase any tendered Notes at a price equal to 100%
of the principal amount thereof.
The Rate Agent hereby agrees to determine LIBOR on each LIBOR Determination Date
in accordance with the following provisions and the other relevant provisions of
the Notes: LIBOR shall be determined on the basis of the offered rates for
three-month deposits in U.S. dollars commencing on the second London Business
Day immediately following the applicable LIBOR Determination Date, which appears
on Telerate Page 3750 as of approximately 11:00 a.m., London time, on such LIBOR
Determination Date. If no rate appears on Telerate Page 3750, LIBOR for the
applicable LIBOR Determination Date will be determined in accordance with the
provisions of paragraph (ii) below.
With respect to a LIBOR Determination Date on which no rate appears on Telerate
Page 3750 as of approximately 11:00 a.m., London time, on the applicable LIBOR
Determination Date, the Rate Agent shall select four major reference banks in
the London interbank market and shall request the principal London offices of
each such bank to provide it with a quotation of the rate at which three-month
deposits in U.S. dollars, commencing on the second London Business Day
immediately following such LIBOR Determination Date, are offered by it to prime
banks in the London interbank market as of approximately 11:00 a.m., London
time, on such LIBOR Determination Date and in a principal amount equal to an
amount of not less than U.S. $1,000,000 that is representative for a single
transaction in such market at such time. If at least two such quotations are
provided, LIBOR for the applicable LIBOR Determination Date will be the
arithmetic mean of such quotations as calculated by the Rate Agent. If fewer
than two quotations are provided, the Rate Agent, after consultation with the
Company, shall select three major banks in The City of New York and shall
request each such bank to provide it with the rates quoted by such bank as of
approximately 11:00 a.m., New York City time, on such LIBOR Determination Date
for loans in U.S. dollars to leading European banks, having a three-month
maturity, commencing on the second London Business Day immediately following
such LIBOR Determination Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative for a single transaction in
such market at such time, and LIBOR for such LIBOR Determination Date shall be
the arithmetic mean of such rates; provided, however, that if the banks selected
as aforesaid by the Rate Agent are not quoting as mentioned in this sentence,
LIBOR for such LIBOR Determination Date will be the LIBOR determined with
respect to the immediately preceding LIBOR Determination Date, or in the case of
the first LIBOR Determination Date, LIBOR for the Initial Quarterly Period.
The Rate Agent hereby agrees to determine the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate, in accordance with this Section 2(c). If the Notes are to be reset to the
Fixed Rate Mode, as agreed to by the Company and the Remarketing Agent on a
Duration/Mode Determination Date, then the applicable Fixed Rate for the
corresponding Subsequent Spread Period will be determined by 1:00 p.m., New York
City time, on the third Business Day prior to the Commencement Date for the
Subsequent Spread Period (the "Fixed Rate Determination Date"). The Fixed Rate
will be a per annum rate and will be determined by
2
adding (i) the applicable Spread (as agreed to by the Company and the
Remarketing Agent on the preceding Spread Determination Date) to (ii) the yield
to maturity determined by 1:00 p.m., New York City time, on the Fixed Rate
Determination Date (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the applicable
United States Treasury security, selected by the Rate Agent after consultation
with the Remarketing Agent, as having a maturity comparable to the duration
selected for the following Subsequent Spread Period, which would be used in
accordance with customary financial practice in pricing new issues of corporate
debt securities of comparable maturity to the duration selected for the
following Subsequent Spread Period.
Fees and Expenses. The obligations of the Company to pay to the Remarketing
Agent on each Tender Date the fees set forth in the applicable Remarketing
Agency Agreement shall survive the termination of this Agreement and remain in
full force and effect until all such payments shall have been made in full. The
Company will pay all expenses of the Remarketing Agent in connection with the
Remarketing Agency Agreement, including: (a) the preparation, filing, printing
and delivery of the prospectus, if any, and any amendments or supplements
thereto and any Remarketing Memorandum (as defined in the Remarketing Agency
Agreement) in connection with the Remarketing of the Notes; (b) the preparation
and delivery of this Agreement, the Remarketing Agency Agreement, the Indenture
and such other documents as may be required in connection with the Remarketing
of the Notes; (c) the fees and disbursements of the Company's accountants,
counsel and other advisors or agents (including any calculation agent or
exchange rate agent) and of the fees and disbursements of the Trustee; and (d)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Notes.
Removal of the Rate Agent and Remarketing Agent. With respect to any Subsequent
Spread Period, the Company may, in its absolute discretion, remove the Rate
Agent and Remarketing Agent by giving notice to the Rate Agent and Remarketing
Agent prior to 3:00 p.m., New York City time, on the Duration/Mode Determination
Date applicable thereto, such removal to be effective upon the Company's
appointment of a successor Rate Agent and Remarketing Agent. In such case, the
Company will use its best efforts to appoint a successor Rate Agent and
Remarketing Agent and enter into such a with such persons
as soon as reasonably practicable.
Dealing in the Notes. Subject to its compliance with applicable laws and
regulations, Xxxxxxx Xxxxx, when acting as a Rate Agent and Remarketing Agent or
in its individual or any other capacity, may buy, sell, hold and deal in any of
the Notes. Xxxxxxx Xxxxx may exercise any vote or join in any action which any
Beneficial Owner of Notes may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any capacity hereunder.
Xxxxxxx Xxxxx, in its individual capacity, either as principal or agent, may
also engage in or
3
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
Current Prospectus. If Xxxxxxx Xxxxx determines, based upon advice of counsel,
that changes in applicable law, regulations or interpretations of the Securities
and Exchange Commission (the "Commission") make it necessary or advisable to
file a new registration statement with the Commission and/or deliver a current
prospectus in connection with a Remarketing, the Company shall file a new
registration statement with the Commission, in a form reasonably acceptable to
Xxxxxxx Xxxxx and its counsel, and furnish a current prospectus to be used by
the Remarketing Agent in such Remarketing, as applicable.
Representations and Warranties of the Company. The Company represents and
warrants to Xxxxxxx Xxxxx as of the date hereof, and as of each Tender Date, as
follows:
The Company has made all filings with the Commission that it is required to make
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations thereunder (the "1934 Act Regulations") (collectively,
the"1934 Act Documents"). Each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations, and
each 1934 Act Document did not, at the time of filing with the Commission, and
will not, as of each Tender Date, as modified or superseded by any subsequently
filed 1934 Act Document on or prior to such Tender Date, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
As of the date hereof and at each Tender Date, any prospectus and any
Remarketing Memorandum relating to the Notes and any amendments and supplements
thereto did not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The accountants who certified the financial statements, financial statement
schedules and historical summaries of revenue and certain operating expenses for
the properties related thereto included or incorporated by reference in the 1934
Act Documents are independent public accountants as required by the Securities
Act of 1933, as amended (the"1933 Act"), and the rules and regulations
thereunder (the "1933 Act Regulations").
The historical financial statements included or incorporated by reference in the
1934 Act Documents present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as may otherwise be stated in the
1934 Act Documents, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis; and
the financial statement schedules and other financial information and data
included or incorporated by reference in the 1934 Act Documents present fairly
the information required to be stated therein.
(a) The historical summaries of revenue and certain operating expenses included
or incorporated by reference in the 1934 Act Documents, if any, present fairly
the revenue and those operating expenses included in such summaries for the
periods specified in conformity
4
with generally accepted accounting principles; the pro forma condensed
consolidated financial statements included or incorporated by reference in the
1934 Act Documents, if any, present fairly the pro forma financial position of
the Company and its consolidated subsidiaries as of the dates indicated and the
pro forma results of their operations for the periods specified; and the pro
forma condensed consolidated financial statements, if any, have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis, the assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, such pro forma
financial statements have been prepared, and the pro forma adjustments set forth
therein have been applied, in accordance with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations, and such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements. Since the respective dates as of which
information is given in the 1934 Act Documents, except as may otherwise be
stated therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, (B)
there have been no transactions or acquisitions entered into by the Company or
any of its subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly dividends on
the Company's common stock, or dividends declared, paid or made in accordance
with the terms of any series of the Company's preferred stock, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
The Company has been duly incorporated and is validly existing as a corporation
under the laws of Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland with corporate power and authority to own,
lease and operate its properties and to conduct its business as contemplated
under this , the Remarketing Agency Agreement and the other
agreements to which it is a party; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise. Each
significant subsidiary (as defined in Rule 1-02 of Regulation S-X promulgated
under the 0000 Xxx) of the Company (each, a "Significant Subsidiary") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the 1934 Act Documents, and to enter into and perform its
obligations under any agreements to which it is a party, and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each Significant Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
5
or equity, except for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and referred to in the 1934 Act
Documents.
The outstanding capital stock of the Company has been duly authorized and
validly issued and is fully paid and non-assessable and is not subject to
preemptive or other similar rights.
The Company has full corporate power and authority to enter into this
and the Remarketing Agency Agreement, and this and the Remarketing Agency Agreement have been duly authorized,
executed and delivered by the Company.
The Indenture (A) has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity and except the effect on enforceability of (x) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (y) federal or state law limiting, delaying or prohibiting the
making of payments outside the United States; and (B) conforms in all material
respects to the description thereof in the Prospectus relating to the initial
issuance of the Notes.
The Notes have been duly authorized by the Company for offer, sale, issuance and
delivery pursuant to the Distribution Agreement dated as of November 4, 1997
among the Company and Xxxxxxx Xxxxx, Xxxxx Securities Inc., First Chicago
Capital Markets, Inc., Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities Inc. and
Xxxxxx Xxxxxxx & Co. Incorporated (the "Distribution Agreement"), and the
Pricing Supplement dated August 11, 1998 to the Prospectus dated November 4,
1997, the Terms Agreement dated August 11, 1998 between the Company and Xxxxxxx
Xxxxx (the "Terms Agreement") and the Prospectus Supplement dated November 4,
1997 relating to the Notes for the Company, and when issued and authenticated in
the manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in the Pricing Supplement, will constitute
valid and legally binding obligations of the Company, entitled to the benefits
of the Indenture enforceable against the Company in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transferor or similar laws affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity and except the effect on
enforceability of federal or state law limiting, delaying or prohibiting the
making of payments outside the United States. Such Notes will be in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the applicable Indenture. Such Notes rank and will rank on a parity with all
unsecured and unsubordinated indebtedness of the Company that is outstanding on
the date hereof and on each Tender Date as herein contemplated or that may be
incurred thereafter, except that such Notes will be effectively subordinated to
the prior claims of each secured mortgage lender to any specific Property which
secures such lender's mortgage.
Neither the Company nor any of its subsidiaries is in violation of its charter
or by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its
6
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, except for any such violation or default that would not have a material
adverse effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and performance of
this , the Remarketing Agency Agreement, the Terms
Agreement and the Indenture and the execution and delivery of the Notes and the
consummation of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action, and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
charter or by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
The Company has operated and intends to continue to operate in such a manner as
to qualify to be taxed as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code").
Neither the Company nor any of its subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
There is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the 1934 Act Documents (other than as
disclosed therein), or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties or
assets thereof or which might materially and adversely affect the consummation
of this , the Remarketing Agency Agreement, the Terms
Agreement, the Indenture, the Notes or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of its property or assets is
the subject which are not described in the 1934 Act Documents, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
or any of its subsidiaries which are required to be filed as exhibits to the
1934 Act Documents which have not been so filed.
Neither the Company nor any of its subsidiaries is required to own or possess
any trademarks, service marks, trade names or copyrights in order to conduct the
business now operated by it, other than those the failure to possess or own
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
The Company and its subsidiaries possess such certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, other than
those the failure to possess or own would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its subsidiaries has received any
notice of proceedings
7
relating to the revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
Except as otherwise disclosed in the 1934 Act Documents and except as would not
have a material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise: (i) all properties and assets
described in the 1934 Act Documents are owned with good and marketable title by
the Company, its subsidiaries and/or a joint venture or partnership in which any
such party is a participant (a "Related Entity"); (ii) all of the leases under
which any of the Company, its subsidiaries or, to the knowledge of the Company,
Related Entities holds or uses real properties or assets as a lessee are in full
force and effect, and neither the Company, nor any of its subsidiaries or, to
the knowledge of the Company, Related Entities is in material default in respect
of any of the terms or provisions of any of such leases and no claim has been
asserted by anyone adverse to any such party's rights as lessee under any of
such leases, or affecting or questioning any such party's right to the continued
possession or use of the leased property or assets under any such leases; (iii)
all liens, charges, encumbrances, claims or restrictions on or affecting the
properties and assets of any of the Company, its subsidiaries or Related
Entities which are required to be disclosed in the 1934 Act Documents are
disclosed therein; (iv) neither the Company, nor any of its subsidiaries or, to
the knowledge of the Company, Related Entities nor any lessee of any portion of
any such party's properties is in default under any of the leases pursuant to
which any of the Company, its subsidiaries or, to the knowledge of the Company,
Related Entities leases its properties and neither the Company, nor any of its
subsidiaries or Related Entities knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default under any
of such leases; (v) no tenant under any of the leases pursuant to which any of
the Company, or its subsidiaries or, to the knowledge of the Company, Related
Entities leases its properties has an option or right of first refusal to
purchase the premises demised under such lease; (vi) each of the properties of
any of the Company or, to the knowledge of the Company, its subsidiaries or
Related Entities complies with all applicable codes and zoning laws and
regulations; and (vii) neither the Company nor any of its subsidiaries has
knowledge of any pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on, or access to the properties of any of the
Company, or its subsidiaries or Related Entities. Title insurance in favor of
the mortgagee or the Company, its subsidiaries and/or their Related Entities is
maintained with respect to each shopping center property owned by any such
entity in an amount at least equal to (a) the cost of acquisition of such
property or (b) the cost of construction of such property (measured at the time
of such construction), except, in each case, where the failure to maintain such
title insurance would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
The mortgages and deeds of trust encumbering the properties and assets described
in the 1934 Act Documents are not convertible nor does any of the Company, or
its subsidiaries hold a participating interest therein.
Each of the partnership and joint venture agreements to which the Company or any
of its subsidiaries is a party, and which relates to real property described in
the Prospectus, has been duly authorized, executed and delivered by such
applicable party and constitutes the valid
8
agreement thereof, enforceable in accordance with its terms, except as limited
by (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought, and
the execution, delivery and performance of any of such agreements did not, at
the time of execution and delivery, and does not constitute a breach of, or
default under, the charter or by-laws of such party or any material contract,
lease or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or administrative
or court order or decree.
None of the Company, or any of its subsidiaries has any knowledge of (a) the
unlawful presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on any of
the properties owned by it or the Related Entities, or (b) any unlawful spills,
releases, discharges or disposal, of Hazardous Materials that have occurred or
are presently occurring off such properties as a result of any construction on
or operation and use of such properties which presence or occurrence would have
a material adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and in connection with the
construction on or operation and use of the properties owned by the Company, its
subsidiaries and Related-Entities, each of the Company, and its subsidiaries
represents that it has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and disposal of any Hazardous
Materials.
The Notes are rated A3 by Xxxxx'x Investors Service, Inc. and A- by Standard &
Poor's Ratings Services.
Any certificate signed by any officer of the Company and delivered to you or to
counsel for the Remarketing Agent in connection with the remarketing of the
Notes shall be deemed a representation and warranty by the Company to the
Remarketing Agent as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each Tender
Date subsequent thereto.
References in the foregoing representations and warranties to the 1934 Act
Documents shall be deemed to refer to the registration statement and prospectus,
if any, in each case including the documents incorporated by reference therein,
if any of such documents are required pursuant to Section 6 hereof.
9
Conditions to the Remarketing Agent's Obligations. The obligations of the
Remarketing Agent to purchase and remarket the Notes shall be subject to (a) the
terms and conditions of the applicable Remarketing Agency Agreement, (b) the due
performance in all material respects by the Company of its obligations and
agreements as set forth in this and the accuracy of the
representations and warranties in this Remarketing Agreement and any certificate
delivered pursuant hereto, and (c) the further condition that none of the
following events shall exist at any time during which the Remarketing Agent
would otherwise be obligated to take any action under this Remarketing
Agreement:
(1) all of the Notes for which the Remarketing Agent is
responsible hereunder shall have been called for redemption or tendered
for repurchase by the Company; or
(2) without the prior written consent of the Remarketing
Agent, the Indenture or the Notes shall have been amended in any
manner, or otherwise contained any provisions not contained therein as
of the date hereof, that in either case in the reasonable opinion of
the Remarketing Agent materially changes the nature of the Notes or the
remarketing procedures (it being understood that notwithstanding the
provisions of this clause (2) the Company shall not be prohibited from
amending such documents).
Indemnification.
Indemnification. The Company agrees to indemnify and hold harmless the
Remarketing Agent and each person, if any, who controls the Remarketing Agent
within the meaning of Section 20 of the 1934 Act and any director, officer,
employee or affiliate thereof, as follows: against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of (A) the
failure to have an effective registration statement under the 1933 Act, relating
to the Notes, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Agent with a prospectus for delivery, or (B) any untrue statement or
alleged untrue statement of a material fact contained in the 1934 Act Documents,
the registration statement and prospectus, if any are required pursuant to
Section 6 of this Agreement, or the Remarketing Memorandum, if any, or any
amendment thereto (including in each case any documents incorporated by
reference therein), or (C) the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or (D) any violation by the Company of, or any failure by the
Company to perform any of its obligations under, this Agreement or (E) the acts
or omissions of the Rate Agent in connection with its duties and obligations
hereunder except those that are finally judicially determined to be due to its
gross negligence or willful misconduct; against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
10
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever arising out of, or based upon, any of items (A) through (E) of
clause (i) above; provided that (subject to Section 9(d) hereof) any such
settlement is effected with the written consent of the Company, which consent
shall not be unreasonably withheld; and against any and all expense whatsoever,
as incurred (including the fees and disbursements of counsel chosen by the
Remarketing Agent), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever arising out of,
or based upon, any of items (A) through (E) of clause (i) above to the extent
that any such expense is not paid under (i) or (ii) above; provided, however,
that this indemnity shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agent expressly
for use in the Remarketing Memorandum or registration statement (or any
amendment thereto), if applicable.
Indemnification of Company, Directors and Officers. The Remarketing Agent agrees
to indemnify and hold harmless the Company, its directors and each of its
officers, if any, who sign the registration statement if such is required
pursuant to Section 6 hereof, and each person, if any, who controls the Company
within the meaning of Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 9(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Remarketing
Memorandum or registration statement (or any amendment thereto), if applicable,
in reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent expressly for use in such Remarketing
Memorandum or registration statement (or any amendment thereto).
Actions Against Parties; Notification. Each indemnified party shall give notice
as promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 9(a) above, counsel to the
indemnified parties shall be selected by the Remarketing Agent. In the case of
parties indemnified pursuant to Section 9(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any one local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or10 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section9(a)(ii) effected without its written consent if (i) such settlement is
11
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Continuation of Indemnification. The indemnity agreements contained in this
Section 9 shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing Agent, and shall survive
the termination or cancellation of this Agreement and the remarketing of any
Notes hereunder.
Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 9 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, in connection with any Remarketing the
Company, on the one hand, and the Remarketing Agent, on the other, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
the Remarketing Agent, as incurred, in such proportions that the Remarketing
Agent is responsible for that portion represented by the percentage that the
commissions and fees received by the Remarketing Agent in connection with such
Remarketing bears to the aggregate principal amount of such Notes outstanding at
the time of such remarketing, and the Company is responsible for the balance. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls the Remarketing Agent within the meaning of
Section 20 of the 1934 Act shall have the same rights to contribution as the
Remarketing Agent, and each director of the Company and each of its officers, if
any, who sign the registration statement, if any, and each person, if any, who
controls the Company within the meaning of Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
Termination of this Remarketing Agreement. Subject to Section 3 hereof relating
to the payment of fees and expenses, this Agreement (i) shall terminate as to
the Rate Agent on the effective date of the removal of such Rate Agent pursuant
to Section 4 hereof, and (ii) shall terminate as to the Remarketing Agent on the
effective date of the removal of such Remarketing Agent pursuant to Section 4
hereof.
Rate Agent's and Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Rate Agent and Remarketing Agent hereunder shall be
determined solely by the express provisions of this Remarketing Agreement and
the Notes and the Indenture and, in the case of the Remarketing Agent, the
applicable Remarketing Agency Agreement.
12
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE.
Term of Agreement. Unless otherwise terminated in accordance with the provisions
hereof, this Agreement shall remain in full force and effect from the date
hereof until the first day thereafter on which no Notes are outstanding.
Successors and Assigns. The rights and obligations of the Company hereunder may
not be assigned or delegated to any other person without the prior written
consent of Xxxxxxx Xxxxx. The rights and obligations of Xxxxxxx Xxxxx hereunder
may not be assigned or delegated to any other person without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company and Xxxxxxx Xxxxx and their respective successors and
assigns. The terms "successors" and "assigns" shall not include any purchaser of
any Notes merely because of such purchase.
Headings. Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any
provisions of this Agreement.
Severability. If any provision of this Agreement shall be held or deemed to be
or shall, in fact, be invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts with any
provision of any constitution, statute, rule or public policy or for any other
reason, such circumstances shall not have the effect of rendering the provision
in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Counterparts. This Agreement may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall constitute one and
the same document.
Amendments. This Agreement may be amended by any instrument in writing signed by
each of the parties hereto.
Notices. Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication or by telephone
and confirmed in writing. All written notices shall be deemed to be validly
given or made, if delivered by hand, when so delivered, or if mailed, when
mailed registered or certified mail, return receipt requested and postage
prepaid. All notices by telecommunication (including telephone) shall be deemed
to be validly given or made when received. All such notices, requests, consents
or other
13
communications shall be addressed as follows: if to the Company, to Kimco Realty
Corporation, 0000 Xxx Xxxx Xxxx Xxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxx Xxxxxx, Chairman of the Board, and if to Xxxxxxx Xxxxx, to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx World
Headquarters, World Financial Center, North Tower, New York, New York
10281- 1209, Attention: Debt Syndicate, or to such other address as either of
the above shall specify to the other in writing.
Benefit. Nothing in this Agreement, express or implied, is intended or shall be
construed to confer upon or given any person other than the parties hereto any
remedy or claim under or by reason of this Agreement or any term, covenant or
condition hereof, all of which shall be for the sole and exclusive benefit of
the parties.
14
IN WITNESS WHEREOF, each of the Company and Xxxxxxx Xxxxx has caused this
Agreement to be executed in its name and on its behalf by one of its duly
authorized officers as of the date first above written.
KIMCO REALTY CORPORATION
By:
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------------------
Authorized Signatory
15
REMARKETING AGENCY AGREEMENT
REMARKETING AGENCY AGREEMENT, dated as of _______________ __, ____, (this
"Agreement") by and between Kimco Realty Corporation (the "Company") and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Remarketing Agent"). The Remarketing Agent hereby agrees to attempt, on a best
efforts basis, to remarket the Notes described below (the "Notes") that have
been tendered by the holders thereof for sale on ______________ __, ____ (the
"Tender Date") at a price equal to 100% of the aggregate principal amount so
tendered.
The Remarketing Agent will attempt, on a reasonable best efforts basis, to
remarket the validly tendered Notes at a price equal to 100% of the aggregate
principal amount so tendered. There is no assurance that the Remarketing Agent
will be able to remarket the entire principal amount of Notes tendered in a
remarketing. The Remarketing Agent shall also have the option, but not the
obligation, to purchase any tendered Notes at such price. The obligation of the
Remarketing Agent to purchase tendered Notes from the tendering Noteholders will
be subject to certain conditions and termination events customary in the
Company's public offerings, including the termination events, as amended hereby,
incorporated into this Agreement by reference to the attached Distribution
Agreement, and to the conditions set forth in Section 8 of the Remarketing
Agreement.
IF NO NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE THE
FOLLOWING: It is acknowledged and agreed that the Notes need not be further
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
that, in connection with the remarketing of the Notes by the Remarketing Agent
in accordance with the terms of the Remarketing Agreement dated August 11, 1998
(the "Remarketing Agreement"), no prospectus meeting the requirements of Section
10 of the 1933 Act need be delivered or filed pursuant to Rule 424 under the
1933 Act.
It is understood that the Remarketing Agent may, in its discretion, deliver to
purchasers and prospective purchasers, in connection with the remarketing, one
or more forms of written communication describing the terms of the Notes (each,
a "Remarketing Memorandum"), the form of each of which shall be delivered to the
Company not less than two Business Days prior to its use. Such Remarketing
Memorandum shall be subject to the approval of the Company prior to its use by
the Remarketing Agent, which approval shall not be unreasonably withheld or
delayed.
The following hereby are incorporated into this Agreement in their entirety and
made applicable to the obligations of the Remarketing Agent to the extent
applicable to any remarketing of the Notes, except as explicitly amended hereby:
(A) Section 4(k) of the attached Distribution Agreement (which dates referred to
therein shall be the date of the Remarketing Agency Agreement and the
Representation Date for the relevant Tender Date);
(B) Sections 4(a) and 5(b) of the attached Distribution Agreement;
(C) The representations and warranties made pursuant to the above-referenced
Remarketing Agreement;
(D) Section 11 of the attached Distribution Agreement; and
(E) Section 12 of the attached Distribution Agreement (except that Section 12 is
amended to allow for the termination of this Agreement by the Remarketing Agent
if the Company's representations and warranties therein are not accurate and
correct).
7
All references contained in the attached Distribution Agreement to the "Agent"
or "Agents" shall be deemed to refer to the Remarketing Agent. All references to
the "Notes" shall be deemed to refer to the Notes described below. All
references to the "Representation Date" shall be deemed to refer to the Tender
Date. The terms "Registration Statement" and "Prospectus" shall be deemed to
refer to the 1934 Act Document and Remarketing Memorandum, if any, in each case
as amended or supplemented to the date hereof and the Tender Date, including the
documents included in or incorporated by reference into such documents.
IF A NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE THE
FOLLOWING: It is understood that a new registration statement or new prospectus
is being filed by the Company in connection with the remarketing of the Notes
(the "New Registration Statement" and/or "New Prospectus"). In connection
therewith and with the remarketing of the Notes, the attached Distribution
Agreement (including the requirements therein relating to delivery of legal
opinions, comfort letters and officers' certificates) hereby is incorporated
into this Agreement in its entirety (except as modified below) and the
Remarketing Agent shall be deemed to be acting as "Agent" thereunder. All
references in such Distribution Agreement to (i) the "Agent" or "Agents" shall
be deemed to refer to the Remarketing Agent, (ii) the Distribution Agreement
shall be deemed to refer to the Remarketing Agency Agreement and (iii) the
"Settlement Date" or the "Representation Date" shall be deemed to refer to the
Tender Date. To the extent the provisions of such Distribution Agreement refer
to the "Prospectus" or the "Registration Statement," such references shall be
deemed to refer to the New Registration Statement or the New Prospectus, as
applicable, including all documents incorporated by reference therein. Section
12 of the attached Distribution Agreement shall be amended to allow for the
termination of this Agreement by the Remarketing Agent if the Company's
representations and warranties therein are not accurate and correct in all
material respects. All capitalized terms not otherwise defined in this Agreement
have the respective meanings assigned thereto in the Notes, the form of which is
attached hereto.
Company: Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000
8
Remarketing Agent and Address: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center, Xxxxx
Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Title of Notes: Remarketed Reset Notes Due August 18, 2008
Principal Amount of Notes to
be Purchased:
Title of Indenture: Indenture dated as of September 1, 1993,
as amended by the First Supplemental
Indenture dated as of August 4, 1994, the
Second Supplemental Indenture dated as of
April 7, 1995 and as further amended or
supplemented from time to time by and
between the Company and the Trustee
Trustee: IBJ Xxxxxxxx Bank & Trust Company
Current Ratings:
Xxxxx'x Investors Service, Inc.:
Standard & Poor's Ratings Services:
CERTAIN TERMS OF THE NOTES
Stated Maturity: August 18, 2008
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Date:
Tender Date:
New Interest Rate: As determined by application of the
provisions set forth in the attached form
of the Notes on the LIBOR Determination
Date or the Fixed Rate Determination Date,
as applicable.
Spread:
Interest Payment Dates:
Subsequent Spread Period:
Redemption Provisions: Redeemable as set forth in the attached
Pricing Supplement dated August 11, 1998.
9
Beneficial Owner Tender Provisions: As set forth in the attached Pricing
Supplement dated August 11, 1998. In the
event that the Remarketing Agent fails to
purchase all Notes validly tendered for
purchase on the Tender Date, then the
Remarketing Agent shall promptly notify
the Company and the Trustee of such
failure.
Shorter Subsequent Spread Period: In the event that (A) the Remarketing
Agent fails to remarket all Notes validly
tendered for remarketing and (B) the
Company has not given notice of redemption
of all of the Notes then outstanding in
accordance with the provisions described
in the attached form of the Notes, then
the Subsequent Spread Period shall be a
period of one year, which Subsequent
Spread Period shall be deemed to have
commenced upon the Commencement Date that
coincides with the Tender Date.
Legal Opinion: If required to be delivered pursuant to
this Agreement, the opinion required to be
delivered pursuant to Section 5 of the
attached Distribution Agreement shall be
modified to read as follows "(iv) The
Notes have been duly authorized; a single
global Note registered in the name of CEDE
& Co., a nominee of The Depository Trust
Company ("DTC"), has been duly
authenticated in accordance with the
provisions of the Indenture, paid for and
delivered to DTC, and constitutes a valid
and binding obligation of the Company; and
the Agent will acquire the rights of a
bona fide purchaser (as such terms are
defined in the Uniform Commercial Code as
in effect in the State of New York (the
"UCC")) in any portion of the Notes
transferred to the Agent by a prior owner
thereof as recorded on the books of DTC,
provided that (i) the portion of the Notes
transferred is an authorized denomination
of the Notes, (ii) the transfer is
recorded on the books of DTC by a debit to
the transferor's account with DTC and a
credit to the Agent's account with DTC,
(iii) the Agent makes payment to such
transferor of value for such transfer and
(iv) the Agent purchases such interest in
good faith and without notice of any
adverse claim, within the meaning of the
UCC."
If required to be delivered pursuant to this Remarketing Agency
Agreement, the opinion required to be delivered pursuant to Section 5 of the
attached Distribution Agreement may be delivered by any counsel designated by
the Remarketing Agent and reasonably acceptable to the Company.
Form of Notes: Global certificate registered in the name
of the nominee, which currently is CEDE &
Co., of
10
the depository of the Notes, which is DTC.
The beneficial owners of the Notes
("Beneficial Owners") are not entitled to
receive definitive certificates
representing their Notes, except under
limited circumstances. A Beneficial
Owner's ownership of a Note currently is
recorded on or through the records of the
brokerage firm or other entity that is a
participant in DTC and that maintains such
Beneficial Owner's account.
Purchase Price: 100% of the principal amount of the Notes
Payable to DTC for the Beneficial Owners
of Tendered Notes.
11
Remarketing Fee: _____% of the principal amount of the
Notes outstanding on each Tender Date
multiplied by the number of years
remaining in the Stated Maturity, not to
exceed ____% for any one additional Spread
Period.
Closing: Xxxxx & Wood llp, Xxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000-0000, at 9:00
a.m., New York City time, on the Tender
Date.
The foregoing terms are hereby confirmed and agreed to as of this ___ day
of ____________.
KIMCO REALTY CORPORATION
By:
---------------------------------------
Name:
Title:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Authorized Signatory
12
