AMENDMENT NO. 3 TO TERM LOAN AGREEMENT
Dated as of September 3, 2024
among
KIMCO REALTY OP, LLC,
The Several Lenders
from time to time party hereto,
TORONTO DOMINION (TEXAS) LLC,
as Administrative Agent,
ROYAL BANK OF CANADA,
and
U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agents
BNP PARIBAS
and
SCOTIA FINANCING (USA) LLC,
as Documentation Agents
REGIONS BANK,
as Senior Managing Agent
TD SECURITIES (USA) LLC
as Sole Bookrunner and Joint Lead Arranger
and
ROYAL BANK OF CANADA
and
U.S. BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers
AMENDMENT NO. 3 TO TERM LOAN AGREEMENT
This AMENDMENT
NO. 3 TO TERM LOAN AGREEMENT(this “Amendment No.
3”), dated as of September 3, 2024 (such date, the “Amendment
Effective Date”), is by and among KIMCO REALTY OP, LLC, a Delaware limited liability company (the “Borrower”), each of the Lenders party
hereto, TORONTO DOMINION (TEXAS) LLC, as administrative agent for the Lenders defined below (the “Administrative Agent”), and Regions Bank (the “New Term Lender”). Reference is made to that certain Term Loan Agreement dated as of January 2, 2024, as amended by Amendment No. 1 to Term Loan Agreement
dated as of May 3, 2024 and Amendment No. 2 to Term Loan Agreement dated as of July 17, 2024 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”) among the Borrower, the several banks, financial institutions and other entities from time to time party thereto (collectively, the “Lenders”),
and Toronto Dominion (Texas) LLC, as administrative agent. Capitalized terms used herein without definition shall have the same meanings as set forth in the Credit Agreement, as amended hereby.
RECITALS
WHEREAS,
the Borrower has requested, and the New Term Lender has agreed, to make an additional term loan under the Credit Agreement in the principal amount of $50,000,000, which is the same tranche as and governed by the same terms as the Term Loans;
WHEREAS, pursuant to Section 10.1 of the Credit Agreement, the Required Lenders (as defined in the Credit
Agreement prior to giving effect to this Amendment No. 3 (the “Existing Credit Agreement”) party to this Amendment No. 3 consent to the amendments set
forth herein;
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT. As of the Amendment Effective Date, the Credit Agreement is hereby amended in
accordance with Section 10.1 of the Credit Agreement as follows:
SECTION 1.01. Amendments to Credit Agreement.
(a) The definition of “Commitment” in Section 1.1 is restated in its entirety to read as follows:
“Commitment”: for each Lender,
(a) the obligation of such Lender to make a Term Loan to Borrower on the Effective Date on the terms and conditions set forth herein not exceeding the amount set forth for such lender on Schedule 1.1A as such Lender’s “Initial Commitment Amount” (the
“Initial Commitment”), (b) the obligation of such Lender to make a Term Loan to the Borrower on the Incremental Effective Date on the terms and conditions set forth herein not exceeding the amount set forth for such Lender on Schedule 1.1A as such
Lender’s “Incremental Commitment Amount” (the “Incremental Commitment”), and (c) the obligation of such Lender to make a Term Loan to the Borrower on the Second Incremental Effective Date on the terms and conditions set forth herein not exceeding the
amount set forth for such Lender on Schedule 1.1A as such Lender’s “Second Incremental Commitment Amount” (the “Second Incremental Commitment”). The aggregate amount of the Initial Commitments on the Effective Date was $200,000,000, and the
aggregate amount of the Incremental Commitments on the Incremental Effective Date was $300,000,000, and the aggregate amount of the Second Incremental Commitment on the Second Incremental Effective Date is $50,000,000 .
(b) The following definitions are added to Section 1.1 after the definition of “Second Extension Option”:
“Second Incremental Commitment”:
as defined in the definition of “Commitment”.
“Second Incremental Commitment Amount”:
as defined in the definition of “Commitment”.
“Second Incremental Effective Date”:
the “Amendment Effective Date” as defined in the Third Amendment.
(c) The following definition is added to Section 1.1 after the definition of “Test Period”:
“Third Amendment”: Amendment No.
3 to Term Loan Agreement dated as of September 3, 2024 among the Borrower, the Administrative Agent and the Lenders party thereto.
(d) Section 2.2(a)(i) is restated in its entirety to read as follows:
(i) Generally. On the Funding Date, TD Bank, N.A.
made a term loan to the Borrower in the amount of $200,000,000. On the Incremental Effective Date, Royal Bank of Canada, U.S. Bank National Association, BNP Paribas and Scotia Financing (USA) LLC made a term loan to the Borrower in the amount of
$300,000,000. Subject to the terms and conditions hereof and the Third Amendment, the New Term Lender agrees to make an additional term loan to the Borrower in Dollars on the Second Incremental Effective Date in the amount requested by the
Borrower, which shall not exceed such Lender’s Second Incremental Commitment.
(e) Schedule 1.1A of the Credit Agreement is restated in its entirety by the Schedule 1.1A attached hereto.
SECTION 1.02. Making of the New Term Loan. On the Amendment Effective Date, the New Term Lender agrees to make a term loan (a “New Term Loan”) to the Borrower pursuant to Section 2.2(a)(i) of the Credit Agreement. Such New Term Loan shall be subject to the same terms (including,
without limitation, the same Maturity Date) and shall be considered the same tranche as and pari passu with the existing Loans under
the Credit Agreement. From and after the Amendment Effective Date, each reference to the Loans and Term Loans in the Credit Agreement (including, without limitation, in the definition of “Required Lenders”) shall be deemed to include the New Term
Loan made by the New Term Lender. Notwithstanding anything to the contrary provided in the Credit Agreement or otherwise, the New Term Loan shall be made as a Term Benchmark Loan with an initial Interest Period ending on the same date as the
Interest Period then-outstanding with respect to Loans made on the Funding Date. From and after the making of the New Term Loan on the Amendment Effective Date, the Lenders and the outstanding principal amount of the Loans shall be as set forth on
Schedule 2 attached hereto.
SECTION 1.03. New Term Lender. From and after the Amendment Effective Date, the New Term Lender shall be deemed to be a Lender for all
purposes of the Credit Agreement, and each reference to the Lenders in the Credit Agreement (including, without limitation, in the definition of “Required Lenders”) shall be deemed to include the New Term Lender. Without limiting the generality
of the foregoing, the New Term Lender confirms its consent to the appointment of Toronto Dominion (Texas) LLC, as the Administrative Agent in accordance with Article IX of the Credit Agreement.
SECTION 1.04. Representations, Warranties and Agreements of New Term Lender. The New Term Lender (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and deliver this Amendment No. 3 and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the
requirements, if any, specified in the Credit Agreement and under applicable law that are required to be satisfied by it in order to become a Lender, (iii) from and after the Amendment Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of its Second Incremental Commitment and New Term Loan, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.1 of the Credit Agreement, and such other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Amendment No. 3, and (v) it has, independently and without reliance upon the Administrative Agent, the Lead Arranger or any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Amendment No. 3; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, the Lead Arranger or any other Lender and their Related Parties, and based on
such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 3, the Borrower
represents and warrants to the New Term Lender and the Administrative Agent as follows:
(i) The Borrower has the corporate power and authority, and the legal right, to make, deliver and perform each of this Amendment
No. 3, the Credit Agreement, as amended by this Amendment No. 3 (the “Amended Credit Agreement”) and the Note described in Section 3D below
(collectively, the “Amendment Documents”) and, to borrow the New Term Loan hereunder, and the Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance of each Amendment Document and the borrowings of the New Term Loan on the terms and conditions of this Amendment No. 3. Each Amendment Document has been duly executed and delivered on behalf of the
Borrower;
(ii) Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents are true and correct in
all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) on
and as of the date hereof and will be true on and as of the Amendment Effective Date (after giving effect to the inclusion of this Amendment No. 3 as a “Loan Document’) as if made on and as of such date except for representations and warranties
expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date; and
(iii) No Default or Event of Default has occurred and is continuing, or will occur after giving effect to this Amendment No. 3.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment No. 3 shall become effective on the Amendment Effective Date only upon the satisfaction of the
following conditions precedent:
A. The Borrower, the Administrative Agent, the New Term Lender and Required Lenders (as defined in the Existing Credit Agreement) shall have indicated their consent hereto by the execution and delivery of the signature pages
hereof to the Administrative Agent.
B. The Administrative Agent shall have received a secretary’s certificate from the Borrower (i) either confirming that there have been no changes to its organizational documents since January 2, 2024, or if there have been
changes to the Borrower’s organizational documents since such date, certifying as to such changes, and (ii) certifying as to authorization of this Amendment No. 3, good standing of the Borrower and incumbency of officers with respect to this
Amendment No. 3 and the transactions contemplated hereby;
C. The Administrative Agent shall have received all reasonable and documented out-of-pocket costs and expenses for which the Borrower is responsible pursuant to Section 10.5 of the Credit Agreement and for which invoices have
been presented (including the reasonable fees and expenses of legal counsel to the Administrative Agent for which the Borrower agrees it is responsible pursuant to Section 10.5 of the Credit Agreement), incurred in connection with this Amendment
No. 3;
D. Execution and delivery to the Administrative Agent by the Borrower in favor of the New Term Lender, if requested by the New Term Lender, of a Term Loan Note in an amount equal to its Second Incremental Commitment
hereunder;
E. Delivery to the Administrative Agent by Wachtell, Lipton, Rosen & Katz and Venable LLP, as counsel to the Borrower, of an opinion addressed to the New Term Lender and the Administrative Agent in form and substance
reasonably satisfactory to the Administrative Agent;
F. Payment by the Borrower of any agreed upon compensation to the New Term Lender and the Administrative Agent due and payable on the Amendment Effective Date in respect of the Second Incremental Commitment as set forth in a
separate fee letter;
G. Each of the representations and warranties made by the Borrower in or pursuant to the Loan Documents are true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to
“materiality,” “Material Adverse Effect” or similar language, true and correct (after giving effect to any qualification therein) in all respects) on and as of the Amendment Effective Date as if made on and as of such date except for
representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date;
H. (i) No Default or Event of Default has occurred and is continuing on the Amendment Effective Date or after giving effect thereto and (ii) the Administrative Agent shall have received a certificate of the Borrower
demonstrating compliance with each financial covenant set forth in paragraphs (a) through (f) of Section 7.1 of the Credit Agreement as if the ratio or amount referred to therein were to be calculated as of the most recent Test Period as to which a
compliance certificate has been delivered pursuant to Section 6.2(b) of the Credit Agreement after giving pro forma effect to the incurrence of Indebtedness under the New Term Loan on the Amendment Effective Date, and the use of proceeds thereof;
and
I.
The Administrative Agent and the New Term Lender shall have received all documentation and other information regarding the Borrower reasonably requested by them of the Borrower in writing at least 10 Business Days prior to the Amendment Effective
Date that is required in order to comply with their ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Upon satisfaction of the foregoing condition, the Administrative Agent shall deliver written notice to the
Borrower and the New Term Lender of the Amendment Effective Date.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT OF THE GUARANTOR
The Ultimate Parent (for purposes of this Amendment No. 3, the “Guarantor”) has read this Amendment No. 3 and consents to the terms hereof and further hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment No. 3, the
obligations of the Guarantor under the Parent Guarantee dated as of January 2, 2024 (the “Guaranty”) and each of the other Loan Documents to which the
Guarantor is a party shall not be impaired by this Amendment No. 3, and each of the Guaranty and the other Loan Documents to which the Guarantor is a party is, and shall continue to be, in full force and effect immediately after giving effect to this
Amendment No. 3 and is hereby confirmed and ratified in all respects.
Each of the Guarantor and the Borrower hereby acknowledges and agrees that the Obligations guaranteed under
the Guaranty will include all Obligations under, and as defined in, the Credit Agreement as amended by this Amendment No. 3.
SECTION 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan Documents.
(i) On and after the effective date of this Amendment No. 3, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement
shall mean and be a reference to the Amended Credit Agreement. This Amendment No. 3 shall be deemed to be a “Loan Document” under the Credit Agreement.
(ii) Except as specifically amended by this Amendment No. 3, the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment No. 3 shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any of the other Loan Documents.
B. Headings. Section and subsection headings in this Amendment No. 3 are included herein for convenience of
reference only and shall not constitute a part of this Amendment No. 3 for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT NO. 3 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
D. Counterparts; Effectiveness. This Amendment No. 3 may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Delivery of an executed counterpart of a signature page to this Amendment No. 3 by telecopy or other
electronic means in accordance with Section 10.12 of the Credit Agreement shall be effective as delivery of a manually executed counterpart of this Amendment No. 3.
E. Jurisdictions; Waivers. The provisions of Section 10.16 and 10.18 of the Credit Agreement shall apply to this
Amendment No. 3 and are hereby incorporated by reference.
[Signature Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
BORROWER:
|
KIMCO REALTY OP, LLC
By:
Kimco Realty Corporation, its managing member
|
|
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By:
|
/s/ Glenn G. Cohen
|
|
|
Name:
Title:
|
Glenn G. Cohen
Executive Vice President and Chief Financial Officer
|
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GUARANTOR:
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KIMCO REALTY CORPORATION
|
|
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By:
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/s/ Glenn G. Cohen
|
|
|
Name:
Title:
|
Glenn G. Cohen
Executive Vice President and Chief Financial Officer
|
[Lender Signature Pages on File with Administrative Agent]
[Schedules on File with Administrative Agent]
News Release
Kimco Realty® Further Upsizes Term Loan Facility to $550 Million
JERICHO, New York, September 4, 2024 – Kimco Realty® (NYSE: KIM), a real estate investment trust (REIT)
and leading owner and operator of high-quality, open-air, grocery-anchored shopping centers and mixed-use properties in the United States, announced today that it has amended and upsized its unsecured term loan to $550 million from the prior amount
of $500 million.
The amendment added one bank with the terms, applicable spread, maturity date and credit covenants unchanged from the term loan agreement dated January 2, 2024
(as amended on May 3, 2024 and July 17, 2024 prior to the date hereof) with Toronto Dominion (Texas) LLC, as administrative agent, and certain lenders party thereto. Subsequently, the company entered into an interest rate swap agreement, fixing the
rate on the incremental term loan to a rate of 4.3175%. Proceeds will be used for general corporate purposes including managing debt maturities and investing opportunistically.
Toronto Dominion (Texas) LLC served as Administrative Agent, Royal Bank of Canada and U.S. Bank National Association served as Syndication Agents,
BNP Paribas and Scotia Financing (USA) LLC, served as Documentation Agents, and Regions Bank served as Senior Managing Agent, TD Securities (USA) LLC served as Sole Bookrunner and Joint Lead Arranger and Royal Bank of Canada and U.S. Bank National
Association, served as Joint Lead Arrangers on the upsized $550 million unsecured term loan.
About Kimco Realty®
Kimco Realty® (NYSE: KIM) is a real estate investment trust (REIT) and leading owner and operator of high-quality, open-air, grocery-anchored shopping centers and mixed-use properties in the
United States. The company’s portfolio is strategically concentrated in the first-ring suburbs of the top major metropolitan markets, including high-barrier-to-entry coastal markets and rapidly expanding Sun Belt cities. Its tenant mix is
focused on essential, necessity-based goods and services that drive multiple shopping trips per week. Publicly traded on the NYSE since 1991 and included in the S&P 500 Index, the company has specialized in shopping center ownership,
management, acquisitions, and value-enhancing redevelopment activities for more than 60 years. With a proven commitment to corporate responsibility, Kimco Realty is a recognized industry leader in this area. As of June 30, 2024, the company
owned interests in 567 U.S. shopping centers and mixed-use assets comprising 101 million square feet of gross leasable space.
The company announces material information to its investors using the company’s investor relations website (investors.kimcorealty.com), SEC filings, press releases, public conference calls, and webcasts. The company also uses social media to communicate with its investors and the public, and the
information the company posts on social media may be deemed material information. Therefore, the company encourages investors, the media, and others interested in the company to review the information that it posts on the social media channels,
including Facebook (www.facebook.com/kimcorealty), Twitter (www.twitter.com/kimcorealty) and
LinkedIn (www.linkedin.com/company/kimco-realty-corporation). The list of social media channels that the company uses may be updated on its investor relations
website from time to time.
Safe Harbor Statement
This communication contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company intends such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained
in the Private Securities Litigation Reform Act of 1995 and includes this statement for purposes of complying with the safe harbor provisions. Forward-looking statements, which are based on certain assumptions and describe the Company’s future
plans, strategies and expectations, are generally identifiable by use of the words “believe,” “expect,” “intend,” “commit,” “anticipate,” “estimate,” “project,” “will,” “target,” “plan,” “forecast” or similar expressions. You should not rely on
forward-looking statements since they involve known and unknown risks, uncertainties and other factors which, in some cases, are beyond the Company’s control and could materially affect actual results, performances or achievements. Factors which may
cause actual results to differ materially from current expectations include, but are not limited to, (i) general adverse economic and local real estate conditions, (ii) the impact of competition, including the availability of acquisition or
development opportunities and the costs associated with purchasing and maintaining assets; (iii) the inability of major tenants to continue paying their rent obligations due to bankruptcy, insolvency or a general downturn in their business, (iv) the
reduction in the Company’s income in the event of multiple lease terminations by tenants or a failure of multiple tenants to occupy their premises in a shopping center, (v) the potential impact of e-commerce and other changes in consumer buying
practices, and changing trends in the retail industry and perceptions by retailers or shoppers, including safety and convenience, (vi) the availability of suitable acquisition, disposition, development and redevelopment opportunities, and the costs
associated with purchasing and maintaining assets and risks related to acquisitions not performing in accordance with our expectations, (vii) the Company’s ability to raise capital by selling its assets, (viii) disruptions and increases in operating
costs due to inflation and supply chain disruptions, (ix) risks associated with the development of mixed-use commercial properties, including risks associated with the development, and ownership of non-retail real estate, (x) changes in governmental
laws and regulations, including, but not limited to, changes in data privacy, environmental (including climate change), safety and health laws, and management’s ability to estimate the impact of such changes, (xi) the Company’s failure to realize the
expected benefits of the merger with RPT Realty (the “RPT Merger”), (xii) significant transaction costs and/or unknown or inestimable liabilities related to the RPT Merger, (xiii) the risk of litigation, including shareholder litigation, in
connection with the RPT Merger, including any resulting expense, (xiv) the ability to successfully integrate the operations of the Company and RPT and the risk that such integration may be more difficult, time-consuming or costly than expected, (xv)
risks related to future opportunities and plans for the combined company, including the uncertainty of expected future financial performance and results of the combined company, (xvi) effects relating to the RPT Merger on relationships with tenants,
employees, joint venture partners and third parties, (xvii) the possibility that, if the Company does not achieve the perceived benefits of the RPT Merger as rapidly or to the extent anticipated by financial analysts or investors, the market price of
the Company’s common stock could decline, (xviii) valuation and risks related to the Company’s joint venture and preferred equity investments and other investments, (xix) collectability of mortgage and other financing receivables, (xx) impairment
charges, (xxi) criminal cybersecurity attacks, disruption, data loss or other security incidents and breaches, (xxii) risks related to artificial intelligence, (xxiii) impact of natural disasters and weather and climate-related events, (xxiv)
pandemics or other health crises, such as the coronavirus disease 2019 (“COVID-19”), (xxv) our ability to attract, retain and motivate key personnel, (xxvi) financing risks, such as the inability to obtain equity, debt or other sources of financing
or refinancing on favorable terms to the Company, (xxvii) the level and volatility of interest rates and management’s ability to estimate the impact thereof, (xxviii) changes in the dividend policy for the Company’s common and preferred stock and the
Company’s ability to pay dividends at current levels, (xxix) unanticipated changes in the Company’s intention or ability to prepay certain debt prior to maturity and/or hold certain securities until maturity, (xxx) the Company’s ability to continue
to maintain its status as a REIT for U.S. federal income tax purposes and potential risks and uncertainties in connection with its UPREIT structure, and (xxxi) other risks and uncertainties identified under Item 1A, “Risk Factors” in our Annual
Report on Form 10-K for the year ended December 31, 2023. Accordingly, there is no assurance that the Company’s expectations will be realized. The Company disclaims any intention or obligation to update the forward-looking statements, whether as a
result of new information, future events or otherwise. You are advised to refer to any further disclosures the Company makes in other filings with the Securities and Exchange Commission (“SEC”).
###
CONTACT:
David F. Bujnicki
Senior Vice President, Investor Relations and Strategy
Kimco Realty Corporation
1-833-800-4343
dbujnicki@kimcorealty.com