PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of August
3, 2004, is between First Union Real Estate Equity and Mortgage Investments, an
Ohio Business Trust ("FUR"), and Kimco Realty Services, Inc., a Delaware
corporation ("Kimco").
WHEREAS, FUR is the beneficial owner of 183,085 shares of beneficial
interest, $.01 par value per share (the "ATLRS Shares"), of Atlantic Realty
Trust, a Maryland real estate investment trust ("ATLRS");
WHEREAS, FUR desires to sell and Kimco desires to purchase the ATLRS
Shares subject to the terms described herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and warranties herein contained, and for other good and
valuable consideration, and intending to be legally bound, the parties hereto
agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions herein set forth,
Kimco agrees to purchase and FUR agrees to sell at the Closing (as
hereinafter defined) the ATLRS Shares, free and clear of all liens,
encumbrances, claims and security interests, in exchange for the delivery
by Kimco to FUR of $3,112,445 in cash, free and clear of all liens,
encumbrances, claims and security interests.
2. REPRESENTATIONS AND WARRANTIES OF FUR. FUR hereby represents and warrant to
Kimco as follows:
(a) DUE ORGANIZATION. FUR is duly organized, validly existing and in good
standing under the laws of the State of Ohio.
(b) AUTHORIZATION. FUR has the requisite power to enter into this
Agreement and the transactions and agreements contemplated hereby and to
carry out its obligations hereunder and thereunder. This Agreement has
been duly authorized, and this Agreement has been duly executed and
delivered by FUR and constitutes a valid and binding agreement
enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement, the consummation of the transactions and
agreements contemplated hereby, nor compliance with the terms, conditions
or provisions of this Agreement will be a violation of any of the terms,
conditions or provisions of FUR's Declaration of Trust or bylaws or of
any material agreement or instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or its
or their material properties may be bound, or constitute a default or
create a right of termination or acceleration thereunder.
(c) TITLE. FUR beneficially owns the ATLRS shares and will at Closing
convey the ATLRS Shares free and clear of all liens, encumbrances, claims
and security interests.
3. REPRESENTATIONS AND WARRANTIES OF KIMCO. Kimco hereby represents and
warrants to FUR as follows:
(a) DUE ORGANIZATION. Kimco is duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) AUTHORIZATION. Kimco has the requisite power to enter into this
Agreement and the transactions and agreements contemplated hereby and to
carry out its obligations hereunder and thereunder. This Agreement has
been duly authorized, executed and delivered by Kimco and constitutes a
valid and binding agreement of Kimco enforceable in accordance with its
terms. Neither the execution and delivery of this Agreement, consummation
of the transactions and agreements contemplated hereby, nor compliance
with the terms, conditions or provisions of this Agreement, will be a
violation of any of the terms, conditions or provisions of Kimco's
charter or bylaws; or of any material agreement or instrument to which
Kimco is a party or by which Kimco or any of its material properties may
be bound, or constitute a default or create a right of termination or
acceleration thereunder.
(c) KNOWLEDGE OF RISKS. Kimco is acquiring the ATLRS Shares for
investment and not with a view toward or for sale in connection with any
distribution thereof. Kimco agrees that the ATLRS Shares may not be sold,
transferred, offered for sale, pledged, hypothecated or otherwise
disposed of without registration under the Securities Act of 1933, except
pursuant to an exemption from such registration available under such Act,
and without compliance with foreign securities laws, in each case, to the
extent applicable. Kimco has knowledge and experience in financial and
business matters such that it is capable of evaluating the risks of the
investment in the ATLRS Shares.
4. ACCESS TO INFORMATION. FUR hereby acknowledges that (i) Kimco may be in
possession of material, nonpublic information regarding ATLRS, its
financial condition, results of operation, business, properties, assets,
liabilities, management, projections, appraisals, and plans, proposals and
prospects, including information that may have been provided in connection
with ATLRS' solicitation of offers for the Hylan Shopping Center and
consideration of proposals with respect to a transaction involving the
entire company; (ii) such information may be materially adverse to FUR's
interests; and (iii) if FUR were in possession of some or all of such
information FUR might not be willing to sell any or all of the ATLRS Shares
on the terms set forth herein, or at all, or would have a materially
different view of the benefits of the transaction. FUR also acknowledges
and agrees that Kimco shall have no obligation to disclose to FUR any of
the information referred to in the preceding sentence. FUR hereby, on its
own behalf and on behalf of its affiliates and its and their respective
successors and assigns, irrevocably waives and renounces any and all claims
of any nature whatsoever it may have or acquire against Kimco, its
directors, officers, employees, representatives, or any of their respective
affiliates and their respective heirs, successors and assigns, based on
non-disclosure, deceptive trade practices, other laws or otherwise, and
acknowledges that neither Kimco nor any of its directors, officers,
employees, representatives or any of their respective affiliates have made
any representation or warranty, whether express or implied, of any kind or
character in respect of or in connection with
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the ATLRS Shares or the transactions contemplated by this agreement, except
as set forth in Section 3 hereof.
5. CLOSING. Subject to the conditions set forth in Sections 6 and 7 hereof,
the purchase and sale of the ATLRS Shares (the "Closing") shall occur
August 3, 2004. The Closing shall take place at the offices of Wachtell,
Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, at which
time the parties shall make the deliveries described below. At the Closing,
in addition to any other documents required to be delivered under this
Agreement, the parties hereto shall deliver the documents described below:
(a) DELIVERIES BY FUR. At the Closing, FUR shall deliver or cause to be
delivered the following to Kimco:
(1) the ATLRS Shares, such shares to be delivered by DWAC to
an account specified by Kimco;
(2) a certificate, dated the date of the Closing, of an
executive officer of FUR, certifying that, as of such date, the
representations and warranties of FUR contained herein are accurate,
true and correct with the same force and effect as though made on and
as of such date; and
(b) DELIVERIES BY KIMCO. At the Closing, Kimco shall deliver or cause to
be delivered the following:
(1) $3,112,445 in cash in immediately available funds to an
account specified by FUR;
(2) a certificate, dated the date of Closing, of an executive
officer of Kimco, certifying that, as of such date, the
representations and warranties of Kimco contained herein are accurate,
true and correct with the same force and effect as though made on and
as of such date.
6. CONDITIONS TO THE OBLIGATIONS OF FUR. The obligations of FUR under this
Agreement are subject to the fulfillment of each of the following
conditions:
(a) PERFORMANCE. Kimco shall have performed and complied in all material
respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by it.
(b) INJUNCTIONS. No preliminary or permanent injunction or other final
order by any United States federal or state court shall have been issued
which prevents the consummation of the transactions contemplated hereby.
7. CONDITIONS TO THE OBLIGATIONS OF KIMCO. The obligations of Kimco under this
Agreement are subject to the fulfillment of each of the following
conditions:
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(a) PERFORMANCE. FUR shall have performed and complied in all material
respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by it.
(b) INJUNCTIONS. No preliminary or permanent injunction or other final
order by any United States federal or state court shall have been issued
which prevents the consummation of the transactions contemplated hereby.
8. SURVIVAL. The representations and warranties of the parties shall survive
the Closing.
9. FURTHER ASSURANCES. Each of the parties hereto shall execute such further
documents, agreements and instruments, and take all other actions as may be
reasonably necessary to carry out the purposes of this Agreement and the
transactions contemplated hereby.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective heirs, personal
representatives, successors, assigns and affiliates.
11. NOTICES. Any notice or other communication provided for herein or given
hereunder to a party hereto shall be in writing and shall be given by
delivery or by mail (registered or certified mail, postage prepaid, return
receipt requested) to the respective parties as follows:
If to FUR:
First Union Real Estate Equity and Mortgage Investments
0 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Secretary
with a copy to:
Post Xxxxxxx & Koffler, LLP
Two Jericho Plaza
Wing A
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
If to Kimco:
Kimco Realty Services, Inc.
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxx
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
or to such other address with respect to a party as such party shall notify the
other in writing.
12. WAIVER. No party may waive the preliminary and any of the terms or
conditions of this Agreement, nor may this Agreement be amended or
modified, except by a duly signed writing referring to the specific
provision to be waived, amended or modified.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and
oral, among the parties hereto and their affiliates.
14. EXPENSES. Except as otherwise expressly contemplated herein to the
contrary, regardless of whether the transactions contemplated hereby are
consummated, each party hereto shall pay its own expenses incident to
preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
15. CAPTIONS. The Section and Paragraph captions herein are for convenience of
reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
16. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which shall constitute
one and the same instrument.
17. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Maryland.
18. NO PRESUMPTION AGAINST DRAFTER. Each of the parties hereto has jointly
participated in the negotiation and drafting of this Agreement. In the
event of an ambiguity or a question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by each of the
parties hereto and no presumptions or burdens of proof shall arise favoring
any party by virtue of the authorship of any of the provisions of this
Agreement.
19. TERMINATION. If the closing of the transactions contemplated hereby has not
occurred on or prior to August 31, 2004, this Agreement shall terminate and
be of no further force or effect.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the day and year first executed.
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
KIMCO REALTY SERVICES, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Treasurer
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