EXECUTION COPY
INDEMNIFICATION AGREEMENT
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
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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:
ATLANTIC REALTY TRUST
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
Address for notices:
Atlantic Realty Trust
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
With a copy to (which shall not
constitute notice):
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxx, Esq.
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BUYER:
KIMCO REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Address for notices:
Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
With a copy to (which shall not
constitute notice):
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
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