EXECUTION COPY
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INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is entered into as
of the 28th day of March 2005, by and among Atlantic Realty Trust ("Seller") and
Kimco Realty Corporation ("Buyer").
RECITALS
A. Buyer and Seller have entered into exclusive good faith
negotiations of a Purchase and Sale Agreement ("Purchase and Sale Agreement"),
in connection with that certain property commonly known as Hylan Plaza Shopping
Center located in Staten Island, New York (collectively with the land and
improvements thereon, the "Property").
B. Buyer desires to conduct the Property Diligence (as defined
below) on the terms and conditions provided herein.
C. Seller is willing to permit Buyer to do the Property Diligence
on the terms and conditions provided herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
PROPERTY DILIGENCE. Seller hereby agrees to permit Buyer and
its representatives to enter onto the Property to conduct due diligence on the
Property including, without limitation, inspecting and performing tests upon the
Property (including, without limitation, environmental, including "Phase II"
environmental testing, structural, engineering and other tests) (collectively,
the "Property Diligence"). Buyer shall be exclusively responsible for all of its
and its representative's costs and fees associated with its investigation and
review of the Property. Buyer shall conduct and shall cause its representatives
to conduct any inspections and reviews in a commercially reasonable, prudent and
professional manner and in compliance with all applicable laws. A representative
of Seller may, at its option, be present during any inspections or reviews of
the property. Buyer agrees to repair promptly any damage or disturbance Buyer or
its representatives shall cause to the Property. Nothing in this Agreement shall
preclude Buyer or its representatives from complying with any express legal
obligation to report environmental violations or other circumstances existing at
the Property to any governmental authority (to the extent that Buyer can prove
that such an obligation exists) and such compliance alone shall not be the basis
for any liability to Buyer hereunder.
BUYER'S INDEMNIFICATION OF SELLER. Buyer shall indemnify,
defend and hold Seller harmless from any and all claims, damages, costs and
liability resulting directly from Buyer or its representatives conducting the
Property Diligence in a manner that does not comply with the requirements of
Section 1 above, except to the extent the same is caused by Seller's gross
negligence or willful misconduct; provided, that in no event shall Buyer be
liable for consequential, punitive, or special damages. Buyer shall exercise
commercially reasonable efforts to minimize disruption to the tenants of the
Property in connection with the Property Diligence and
Buyer's or its representative's activities. No consent by Seller to any such
activity shall be deemed to constitute a waiver by Seller or the assumption of
liability or risk by Seller.
NO LIENS CREATED BY BUYER. Buyer shall not permit any
mechanic's or materialman's liens or any other liens to attach to the Property
by reason of the performance of the Property Diligence or the purchase of any
materials by Buyer or Buyer's representatives in connection with the Property
Diligence.
CONFIDENTIALITY. Buyer agrees to treat any information
concerning the Property furnished by the Seller or obtained by the Buyer in the
course of its diligence activities pursuant to Section 1 (the "Confidential
Material") strictly confidential. Except as required by law, neither Buyer nor
any of it employees, officers, directors, agents, advisors or representatives
("Representatives") shall disclose any Confidential Material to any other
person. The term "Confidential Material" does not include information which (i)
is already in Buyer's possession, provided that such information is not subject
to another confidentiality agreement with or other obligation of secrecy to the
Seller, (ii) becomes generally available to the public other than as a result of
a disclosure, directly or indirectly, by Buyer or its Representatives, or (iii)
becomes available to Buyer on a non-confidential basis from a source other than
the Seller or its Representatives, provided that such source is not bound by a
confidentiality agreement with or other obligation of secrecy to the Seller.
NOTICES. All notices, demands, requests and other
communications required pursuant to the provisions of this Agreement ("Notice")
shall be in writing and shall be delivered to the addresses set forth on the
signature pages hereto.
EXCLUSIVE NEGOTIATIONS. During the period commencing on the
date hereof and ending forty five days after the date hereof (such period, the
"Exclusivity Period"), Seller will not, directly or through its officers,
directors, employees, affiliates, brokers, investment bankers, attorneys and
other agents and representatives (collectively, "Representatives"), solicit,
encourage, engage in negotiations or discussions with, or furnish any
confidential information or data to, any third party (other than Buyer) relating
to a potential or actual proposal to acquire any of the capital stock or assets
of the Seller, including the Property (an "Acquisition Proposal") and will cease
and instruct its Representatives to immediately cease any such activities.
Seller will promptly provide Buyer with any written Acquisition Proposals, and
promptly inform Buyer of the material terms of any oral Acquisition Proposals,
received by Seller or its Representatives during the Exclusivity Period.
BINDING EFFECT; NO OBLIGATION. This Agreement shall be binding
upon and inure to the benefit of Seller and Buyer, and their respective heirs,
personal representatives, successors and permitted assigns. Neither the
execution of this Agreement nor any of the terms or conditions set forth herein
shall create any obligation for Buyer to do any or all of the Property
Diligence. Unless and until a definitive agreement between Seller and Buyer
concerning the purchase and sale of the Property, Buyer will not be under any
legal obligation of any kind whatsoever with respect to such a transaction by
virtue of this or any written or oral expression with respect to such a
transaction by any of its directors, officers, employees, agents or any other
representatives or its advisors, and has no obligation to continue to pursue
such a transaction.
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GOVERNING LAW AND VENUE. The laws of the state of New York
shall govern the validity, construction, enforcement, and interpretation of this
Agreement with respect to the Property, except for the conflict of law
provisions thereof which would result in the application of the laws of another
jurisdiction. All claims, disputes and other matters in question with respect to
the Property arising out of or relating to this Agreement, or the breach
thereof, shall be decided by proceedings instituted and litigated in a state or
federal court for the district in which the Property is situated, and the
parties hereto expressly consent to the venue and jurisdiction of such court.
MULTIPLE COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts. If so executed, each of such counterparts is
to be deemed an original for all purposes and all such counterparts shall,
collectively, constitute one Agreement. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one such
counterparts.
CONSTRUCTION. No provision of this Agreement shall be
construed in favor of, or against, any particular party by reason of any
presumption with respect to the drafting of this Agreement; both parties, being
represented by counsel, having fully participated in the negotiation of this
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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NOW WHEREFORE, the parties hereto have executed this Agreement as of
the date first set forth above.
SELLER:
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ATLANTIC REALTY TRUST
By: /s/ Edwin R. Frankel
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Name: Edwin R. Frankel
Title: Chief Financial Officer
Address for notices:
Atlantic Realty Trust
747 3rd Avenue
New York, New York 10017
Attention: Joel Pashcow
With a copy to (which shall not consti-
tute notice):
Proskauer Rose LLP
1585 Broadway
New York, New York 10036-8200
Attention: Peter M. Fass, Esq.
[Signature Page to Indemnification Agreement]
BUYER:
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KIMCO REALTY CORPORATION
By: /s/ Bruce M. Kauderer
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Name: BRUCE M. KAUDERER
Title: VICE PRESIDENT
Address for notices:
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
Attention: General Counsel
With a copy to (which shall not consti-
tute notice):
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Adam O. Emmerich, Esq.
[Signature Page to Indemnification Agreement]