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AMENDED AND RESTATED
STANDSTILL AGREEMENT
This AMENDED AND RESTATED STANDSTILL AGREEMENT, dated as of July 21,
2000, by and among Atlantic Realty Trust, a Maryland real estate investment
trust ("ART") on the one hand and Kimco Realty Corporation, a Maryland
corporation ("KRC"), Kimco Realty Services, Inc., a Delaware corporation
("KRS"), and Xxxxxx Xxxxxx ("Xxxxxx") on the other hand (each of KRC, KRS and
Xxxxxx, are referred to herein, collectively, as "Kimco") (the "Standstill
Agreement").
RECITALS:
--------
WHEREAS, Kimco has filed a Schedule 13D, as amended, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") with the
Securities and Exchange Commission, indicating Kimco's ownership of common
shares of beneficial interest, par value $.01 per share, of ART (the "Shares");
WHEREAS, ART's charter limits the number of Shares that may be owned,
actually or constructively pursuant to the attribution rules set forth in
Section 544 of the Internal Revenue Code of 1986, as amended (the "Code"), as
such rules are modified by Section 856(h) of the Code or in Section 318(a) of
the Code as such rules are modified by Section 856(d)(5) of the Code
(constructive ownership of stock pursuant to such attribution rules is
hereinafter referred to as "Constructive Ownership," and the terms
"Constructively Own" and "Constructive Owner" shall have the correlative
meanings) by any person to 9.8% of the total number of Shares that are issued
and outstanding (the "Excess Share Provisions"). All Shares Constructively Owned
by any of KRC, KRS or Xxxxxx in excess of 9.8% of the total number of Shares
that are issued and outstanding are referred to herein as "Excess Shares";
WHEREAS, under the Charter, the Excess Shares are automatically
transferred to a charitable trust to be held for sale unless ART's board of
trustees, in accordance with the Excess Share Provisions, grants an exception to
such ownership limit provisions with respect to the Excess Shares (a "Waiver");
WHEREAS, Kimco previously requested that ART, acting through its Board
of Trustees, grant Kimco a Waiver;
WHEREAS, ART, acting through its Board of Trustees, agreed to grant
Kimco a Waiver and in connection therewith ART and Kimco entered into a
Standstill Agreement dated April 30, 1998 (the "Original Standstill Agreement")
pursuant to which Kimco and certain affiliates, agreed, among other things, not
to acquire more than 25% of the issued and outstanding shares of ART;
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WHEREAS, on June 21, 2000 Kimco requested that ART amend the Original
Standstill Agreement in order to permit Kimco and certain of its affiliates to
own up to 30% of the issued and outstanding shares of ART and, accordingly,
increase the size of the Excess Shares Waiver; and
WHEREAS, ART, acting through its Board of Trustees, has agreed to
increase the size of the Waiver on the condition that Kimco enter into this
Amended and Restated Standstill Agreement and Kimco has agreed to comply with
this condition.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Standstill.
----------
(a) General Standstill.
------------------ Kimco hereby agrees that they shall not, and
they shall cause their Affiliated Persons (as defined below) not to directly or
indirectly through an Affiliated Person, unless specifically requested in
writing in advance by the ART board of trustees:
(i) acquire, agree to acquire, or make a public offer or
proposal to acquire, in any manner, directly or indirectly
through an Affiliated Person, ownership or control of
(A) any securities of ART ("Restricted Securities") in
excess of 30%of the total number of shares that are
issued and outstanding, or
(B) any subsidiary or any assets or properties of ART or
any subsidiary or division thereof, including by way of
any fundamental transaction with ART, such as a tender
offer, business combination, merger or other
consolidation,
(ii) make any "solicitation" of "proxies" (as such terms are used
in the proxy rules of the Securities and Exchange
Commission) to vote any voting securities of ART,
(iii) form or join a "group" (as defined in Section 13(d)(3) of
the Exchange Act) in connection with any of the provisions
of this Section 1, other than a group consisting solely of
two or more of KRC, KRS, Xxxxxx and any Affiliated Persons,
and
(iv) disclose any intention, plan or arrangement inconsistent
with the provisions of this Section 1.
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The provisions of this Section 1 are referred to in this Standstill Agreement,
collectively, as "Restricted Activities". Notwithstanding the foregoing, nothing
in this Section 1 shall prohibit Kimco or its Affiliated Persons from making a
proposal to acquire any asset or property that ART announces an intention to
sell or is soliciting acquisition proposals from third parties.
(b) Voting Rights.
------------- Subject to the terms of this Standstill Agreement,
Kimco may vote its shareholdings of ART in its sole and absolute discretion;
provided, however, Kimco shall vote any Excess Shares in accordance with the
recommendation of the ART board of trustees.
(c) "Affiliated Person" shall mean, for the purposes of this
Standstill Agreement, (i) any corporation, limited liability company or
partnership of which Kimco Realty, Kimco Services or Xx. Xxxxxx, individually or
in the aggregate, own a majority of the voting securities (or, in the case of a
limited liability company or partnership, a majority of the economic interest or
limited partnership interests, respectively) or serve as a managing member or
general partner and (ii) Xx. Xxxxxx'x spouse, and any relative of Xx. Xxxxxx or
his spouse who has the same home as Xx. Xxxxxx and any trust in which Xx. Xxxxxx
or his spouse has a substantial beneficial interest or as to which Xx. Xxxxxx
serves as trustee or in a similar fiduciary capacity.
2. Release.
-------
(a) Kimco, on behalf of themselves and for each of their heirs,
executors, administrators, successors, and/or assigns (collectively, the "Kimco
Releasor"), hereby remises, releases, and forever discharges each of ART, their
direct and indirect subsidiaries, shareholders, affiliates, subdivisions,
predecessors, successors or assigns, and their present and former directors,
officers, employees, agents and attorneys and their heirs, executors,
administrators, successors, and assignees (collectively, the "ART Releasees"),
and each of them, of and from any and all claims, demands, or causes of action
whatsoever from the beginning of the world to the date present, whether
individual, class or derivative in nature, at law or in equity, whether based on
any federal, state, or foreign law or right of action, foreseen or unforeseen
matured or unmatured, know or unknown, accrued or not accrued, which the Kimco
Releasor has, had or have or can, shall, or may hereafter have against the ART
Releasees, or any of them, alleged or which could have been alleged or arising
out of or relating to the decision by ART's Board of Directors to approve, and
ART's execution and delivery of, the tax agreement dated May 10, 1996 by and
between Ramco-Xxxxxxxxxx Properties Trust (together with its subsidiaries,
"RPT") or any amounts paid by ART to RPT or to the Internal Revenue Service
pursuant to its obligations under such agreement; provided, however, that this
release shall be ineffective with respect to each ART Releasee if any person
whose vote was required to approve such decision received or stands to receive,
directly or indirectly, any benefit as a result thereof other than his or her
pro rata benefit as a securityholder of RPT. Kimco hereby
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acknowledges that all amounts paid to Xxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxxx, the
members of the Special Acquisition Committee and Wolf Block (as such terms are
defined below) in connection with the acquisition of substantially all the
property and assets of Ramco-Xxxxxxxxxx, Inc. and its affiliates by RPS Realty
Trust ("RPS") as described in RPS's Proxy Statement dated March 29, 1996 (the
"Proxy Statement") shall not be deemed to be a benefit for this purpose.
Capitalized terms used but not otherwise defined in this Section 2 shall have
the meanings set forth in the Proxy Statement.
3. Waiver.
------ Kimco acknowledges its understanding that, as set forth in
the Recitals to this Standstill Agreement, ownership of the Shares is subject to
the Excess Share Provisions. Subject to the terms and conditions of this
Standstill Agreement, ART grants to Kimco a Waiver with respect to the Excess
Shares, but only with respect to Excess Shares that do not exceed 20.2% of the
total number of Shares that are currently issued and outstanding. Kimco
understands and agrees that ART's grant to Kimco of the Waiver is conditioned
upon the continuing accuracy of the representations and warranties set forth in
Section 4 of this Standstill Agreement and upon such Waiver otherwise not
causing ART to fail to qualify as a REIT for income tax purposes, and Kimco
further understands and agrees that, subject to the Waiver, if any such Excess
Share Provisions are hereafter violated by it or if any of such representations
and warranties cease to be true, the Excess Shares may be automatically
transferred to a trust for the benefit of a charitable beneficiary (as set forth
in the Excess Share Provisions) and that, if so transferred, the applicable
shareholder's ownership rights in such Excess Shares will be terminated. ART
agrees that the remedies provided in its charter shall be the sole remedies
available to ART in the event that any of the representations and warranties of
Kimco set forth in Section 4 of this Standstill Agreement ceased to be true or
the ownership of Shares by Kimco otherwise would violate any of the restrictions
set forth in the ART's charter.
4. Representations and Warranties of Kimco.
--------------------------------------- Kimco hereby jointly and
severally represents and warrants to, and agrees with, ART as follows:
(a) Capacity; Enforceability.
----------------------- Each of the Kimco persons executing this
Standstill Agreement has full capacity and authority, and corporate authority
and capacity, as the case may be, to execute and deliver this Standstill
Agreement. This Standstill Agreement has been duly and validly executed and
delivered by and on behalf of each of them and constitutes a valid obligation of
each of them, enforceable in accordance with its terms, except to the extent
such enforceability may be limited by applicable insolvency, bankruptcy,
reorganization or similar laws affecting the enforcement of creditors' rights
generally and by general equity principles.
(b) No Conflict.
------------ The performance of this Standstill Agreement and the
consummation of the transactions contemplated hereby will not result in a breach
or violation of any of the terms or provisions of, or constitute a default
under:
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(i) the certificate of incorporation of KRC or KRS,
(ii) the by-laws of KRC or KRS,
(iii) any contract or other agreement or instrument to which
Kimco is a party or by which Kimco is bound, the breach of which
would have a material adverse effect on ART or Kimco, or
(iv) any law, order, rule, regulation, writ, injunction or decree
applicable to Kimco.
(c) Governmental Approvals.
---------------------- No consent, authorization or approval of,
exemption by, or filing with, any domestic governmental or administrative
authority, or any court, is required to be obtained or made by Kimco in
connection with the execution, delivery and performance of this Standstill
Agreement or the consummation of the transactions contemplated hereby.
(d) Excess Ownership.
---------------- KRC and KRS are corporations and, to the best of
Kimco's knowledge (after due investigation), no person or entity which would be
treated as an individual for purposes of Section 542(a)(2) of the Code, as
modified by Section 856(h) of the Code, Constructively Owns in excess of 9.8% of
the value of the outstanding equity interest in KRC or KRS.
(e) Update of Representations.
------------------------- At the reasonable request of ART from
time to time, Kimco will update its representations to ART set forth in Section
5(d).
(f) Related Tenants Rent.
-------------------- ART has provided to Kimco an accurate list of
its and its subsidiaries current tenants and, to the knowledge of Kimco, the
amount of annualized rents payable to ART or to its subsidiaries by all such
tenants of ART or its subsidiaries in which Kimco owns 10 percent or more of the
stock or other ownership interest computed in accordance with the attribution
rules of Code Section 318(a), as modified by Code Section 856(d)(5) ("Related
Tenants") (such as to exclude such rents from the term "rents from real
property" by reason of Section 856(d)(2)(B) of the Code) do not exceed $25,000.
At the reasonable request of ART from time to time and upon receipt by Kimco of
a current list of ART's and its subsidiaries tenants, Kimco will update its
representation with respect to its then ownership interests (if any) in such
tenants of ART or its subsidiaries and provide ART with such information
concerning rents payable by Related Tenants as ART may reasonably request in
connection with maintaining ART's status as a REIT.
5. Representations and Warranties of ART.
------------------------------------- ART hereby represents and
warrants to, and agrees with, Kimco as follows:
(a) Capacity; Enforceability.
------------------------ ART has full trust authority and capacity
to execute and deliver this Standstill Agreement. This Standstill Agreement has
been duly
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and validly executed and delivered by and on behalf of ART and constitutes a
valid obligation of ART, enforceable in accordance with its terms, except to the
extent such enforceability may be limited by applicable insolvency, bankruptcy,
reorganization or similar laws affecting the enforcement of creditors' rights
generally and by general equity principles.
(b) No Conflict.
----------- The performance of this Standstill Agreement and the
consummation of the transactions contemplated hereby will not result in a breach
or violation of any of the terms or provisions of, or constitute a default
under:
(i) the declaration of trust of ART,
(ii) the by-laws of ART,
(iii) any contract or other agreement or instrument to which ART
is a party or by which ART is bound, the breach of which
would have a material adverse effect on ART or Kimco, or
(iv) any law, order, rule, regulation, writ, injunction or decree
applicable to ART.
(c) Governmental Approvals.
----------------------- No consent, authorization or approval of,
exemption by, or filing with, any domestic governmental or administrative
authority, or any court, is required to be obtained or made by ART in connection
with the execution, delivery and performance of this Standstill Agreement or the
consummation of the transactions contemplated hereby.
6. Miscellaneous Provisions.
------------------------
(a) Notices.
-------- Any notice, request, instruction or other document to be
given hereunder by any party hereto to another party hereto shall be in writing,
shall be deemed to have been duly given or delivered
(i) the day following dispatch to an overnight courier service
(such as Federal Express or UPS) or
(ii) five (5) days after dispatch by certified or registered
first class mail, postage prepaid, return receipt requested,
to the party to whom the same is so given or made:
If to Kimco addressed to:
-------------------------
Xx. Xxxxxx Xxxxxx
Kimco Realty Corporation
000 Xxx Xxxx Xxxx Xxxx
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New Hyde Park, NY 11042-0020
With a copy to:
--------------
Xxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to ART addressed to:
-----------------------
Xx. Xxxx X. Xxxxxxx
Atlantic Realty Trust
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
---------------
Xxxxxx X. Xxxxxxxxxxx, Esq.
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) Amendment and Modification.
-------------------------- This Standstill Agreement may be
modified, amended or supplemented only by an instrument in writing signed by or
on behalf of all of the parties hereto.
(c) Waiver.
------- No party may waive any right hereunder except pursuant to
a written instrument signed by the party against whom such waiver is to be
enforced. No waiver of or delay in exercising any right hereunder shall operate
as a waiver of any right hereunder.
(d) Governing Law.
-------------- This Standstill Agreement shall be governed by the
laws of the State of New York, without regard to the conflicts of law principles
thereof. The parties hereby consent to personal jurisdiction in respect of any
action arising under or in connection with this Standstill Agreement instituted
in the United States District Court for the Southern District of New York or the
courts of the State of New York and to service of process upon them in the
manner set forth in subsection (a) above.
(e) Assignment.
----------- This Standstill Agreement and the rights and
obligations hereunder may not be assigned by any party hereto without the
written consent of all other parties hereto.
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(f) Counterparts.
------------ This Standstill Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Section Headings.
---------------- The section headings contained in this Standstill
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Standstill Agreement. All references in this Standstill Agreement to
Sections are to sections of this Standstill Agreement, unless otherwise
indicated.
(h) Entire Agreement.
-------------- This Standstill Agreement and the Exhibits which
are a part hereof and the other writings, documents, certificates, instruments
and agreements specifically identified herein contain the entire agreement
between the parties with respect to the transactions contemplated herein and
supersede all previous written and oral negotiations, commitments and
understandings by or among any of the parties hereto with respect to any of the
matters contemplated under this Standstill Agreement. There are no restrictions,
promises, inducements, representations, warranties, covenants, or undertakings,
other than those expressly set forth or referred to herein.
(i) Severability.
------------- If and to the extent that any court of competent
jurisdiction holds any provision (or any part thereof) of this Standstill
Agreement to be invalid or unenforceable, such holding shall in no way affect
the validity of the remainder of this Standstill Agreement, including any
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parities hereunder shall be enforceable to the fullest extent
permitted by law; provided, however, that if the Waiver is finally determined by
a court of appropriate jurisdiction to be invalid or unenforceable, this
Agreement shall terminate.
(j) Execution.
---------- Facsimiles of executed copies of this Standstill
Agreement shall constitute originals of this Standstill Agreement.
(k) No Third Party Beneficiaries.
---------------------------- Nothing contained in this Standstill
Agreement shall be deemed to confer rights on any person or to indicate that
this Standstill Agreement has been entered into for the benefit of any person,
other than the parties hereto.
(l) Binding Effects.
---------------- This Standstill Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
legal representatives and assigns.
(m) Waiver of Compliance.
-------------------- Any failure of any of the parties to comply
with any obligation, covenant, agreement, or condition herein may be waived by
the party or parties entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such a waiver or
failure to insist upon strict compliance
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with such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent other failure.
(n) Further Assurances.
------------------ The parties to this Standstill Agreement,
without further consideration, use all reasonable efforts to execute and deliver
such additional documents and take such other action as any party may reasonably
request to carry out the intent of this Standstill Agreement and the
transactions contemplated hereby.
(o) Equitable Principles.
--------------------- The parties acknowledge and agree that
irreparable damage would occur in the event any of the provisions of this
Standstill Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties shall be
entitled to seek an injunction to prevent any breach of the provisions of this
Standstill Agreement and to enforce specifically the terms and provisions hereof
in any court having jurisdiction, in addition to any other remedy to which they
may be entitled at law or in equity.
(p) Public Releases and Announcements.
--------------------------------- Kimco agrees that it shall
provide to ART advance copies of, or, in the case of oral announcements, advance
notice of, any public release or announcement concerning ART to be issued,
released or made by Kimco, in each case, at least one business day prior to such
release or announcement.
(q) Termination.
----------- This Agreement shall terminate upon the earlier of the
following:
(i) As set forth in Section 6(i); and
(ii) Upon reduction of Kimco's Constructive Ownership of Shares
to or below 9.8% of the total number of Shares issued and
outstanding.
7. Effect of Termination.
---------------------- In the event of the termination of this
Agreement as set forth in Section 6(q), Kimco shall then immediately become
subject to all rules and restrictions regarding the ownership of Shares,
including, without limitation, the limitations set forth in the organization
documents of ART.
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IN WITNESS WHEREOF, the undersigned have executed this Standstill
Agreement, on the date first written above.
KIMCO REALTY CORPORATION
By /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Chairman of the Board
KIMCO REALTY SERVICES
By /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
Title: President
/s/ Xxxxxx Xxxxxx
-----------------
XXXXXX XXXXXX
ATLANTIC REALTY TRUST
By /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive V.P.
