<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)
Atlantic Realty Trust
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(Name of Issuer)
Common Shares of Beneficial Interest, par value $0.01 per share
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(Title of Class of Securities)
048798-10-2
(CUSIP Number)
Milton Cooper
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, NY 11042-0020
(516) 869-9000
with a copy to:
Raymond Y. Lin, Esq.
Erica H. Steinberger, Esq.
Latham & Watkins
885 Third Avenue
New York, New York 10022
(212) 906-1200
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
August 10, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition that is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(e),
13d-1(f) or 13d-1(g), check the following box .
(Continued on following pages)
(Page 1 of 22 pages)
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-------------------------------- 13D --------------------
CUSIP No. 048798-10-2 Page 2 of 22
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities only)
Kimco Realty Corporation
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT / /
TO ITEMS 2(d) or 2(e)
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Maryland
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SOLE VOTING POWER
7 345,498
NUMBER OF ------------------------------------------------------------
SHARES SHARED VOTING POWER
BENEFICIALLY 8 None
OWNED
BY EACH ------------------------------------------------------------
REPORTING SOLE DISPOSITIVE POWER
PERSON
WITH 9 345,498
------------------------------------------------------------
SHARED DISPOSITIVE POWER
10 None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
345,498
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE>
-------------------------------- 13D --------------------
CUSIP No. 048798-10-2 Page 3 of 22
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities only)
Kimco Realty Services, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT / /
TO ITEMS 2(d) or 2(e)
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
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SOLE VOTING POWER
7
None
NUMBER OF
SHARES ------------------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
OWNED 8 511,228
BY EACH
REPORTING ------------------------------------------------------------
PERSON SOLE DISPOSITIVE POWER
WITH
9 None
------------------------------------------------------------
SHARED DISPOSITIVE POWER
10 511,228
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
511,228
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
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13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.4%
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14 TYPE OF REPORTING PERSON
CO
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<PAGE>
-------------------------------- 13D --------------------
CUSIP No. 048798-10-2 Page 4 of 22
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1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities only)
Milton Cooper
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT / /
TO ITEMS 2(d) or 2(e)
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
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SOLE VOTING POWER
7
29,824
NUMBER OF
SHARES -----------------------------------------------------------
BENEFICIALLY SHARED VOTING POWER
OWNED 8
BY EACH 514,355
REPORTING
PERSON -----------------------------------------------------------
WITH SOLE DISPOSITIVE POWER
9
29,824
-----------------------------------------------------------
SHARED DISPOSITIVE POWER
10
514,355
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
544,179
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/
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13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.3%
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14 TYPE OF REPORTING PERSON
IN
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<PAGE>
Page 5 of 22 pages
This Amendment No. 6 amends and supplements the Schedule 13D filed on May
24, 1996, and amended on July 3, 1996, by Kimco Realty Corporation, a Maryland
corporation ("Kimco"), and Milton Cooper and further amended on May 15, 1997,
June 10, 1997, April 30, 1998, and September 20, 1999 by Kimco, Milton Cooper
and Kimco Realty Services, Inc., a Delaware corporation ("Services"), 60% of the
voting common stock of which is owned by Mr. Cooper (as amended, the "Schedule
13D"), relating to the common shares of beneficial interest, par value $.01 per
share (the "Shares"), of Atlantic Realty Trust, a Maryland corporation (the
"Company"). Unless otherwise indicated, all capitalized terms used herein shall
have the meanings given to them in the Schedule 13D, and unless amended or
supplemented hereby, all information previously filed remains in effect.
Item 4. Purpose of Transaction.
The Company's charter contains a provision limiting 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, as
modified by Section 856(h), or in Section 318(a) as modified by Section
856(d)(5) (constructive ownership pursuant to such attribution rules,
"Constructive Ownership"), by any person to 9.8% of the total number of Shares
issued and outstanding. The Reporting Persons and the Company have entered into
a Standstill Agreement, dated as of April 30, 1998 (the "Standstill Agreement"),
pursuant to which the Company granted the Reporting Persons an exception from
such charter provision with respect to Shares Constructively Owned by any of the
Reporting Persons in excess of 9.8% of the issued and outstanding Shares (the
"Excess Shares"), and the Reporting Persons agreed, unless specifically
requested by the Company's board of trustees, not to, among other things, (i)
acquire or agree or publicly offer or propose to acquire ownership or control of
(A) any securities of the Company in excess of 25% of the issued and outstanding
Shares or (B) any subsidiary or assets or properties of the Company or any of
its subsidiaries or divisions, including by way of tender offer, business
combination, merger or other consolidation (provided that nothing shall prohibit
the Reporting Persons from proposing to acquire assets which the Company has
announced an intention to sell or for which it is soliciting bids) or (ii) make
any "solicitation" of "proxies" (as such terms are used in the proxy rules of
the Securities and Exchange Commission), and further agreed to vote any Excess
Shares in accordance with the recommendation of the Company's board of trustees.
The above description of the Standstill Agreement is qualified in its entirety
by reference to the full text of such agreement, which is being filed as Exhibit
3 hereto and is incorporated herein by reference.
On August 10, 2000, the Company entered into an amended and restated
standstill agreement with Kimco, Kimco Realty Services, Inc., and Milton Cooper
(the "Amended and Restated Standstill Agreement".) The Amended and Restated
Standstill Agreement, which is being filed as Exhibit 4 hereto, amends the
Standstill whereby Kimco agrees that they shall not, and they shall cause their
Affiliated Persons not to directly or indirectly through an Affiliated Person,
unless specifically requested in writing in advance by the Company's board of
trustees: (i) acquire or agree or publicly offer or propose to acquire ownership
or control of (A) any securities of the Company in excess of 30% of the issued
and outstanding Shares or (B) any subsidiary or assets or properties of the
Company or any of its subsidiaries or divisions, including by way of tender
offer, business combination, merger or other consolidation (provided that
nothing shall prohibit the Reporting Persons from proposing to acquire assets
which the Company has announced an intention to sell or for which it is
soliciting bids) or (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 the Company, (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 Section 1 of the Amended and Restated Standstill Agreement, other than a
group consisting solely of two or more of Kimco, Kimco Realty Services, Inc.,
and Mr. Cooper and any Affiliated Persons, and (iv) disclose any intention, plan
or arrangement inconsistent with the provisions of Section 1.
<PAGE>
Page 6 of 22 pages
Item 5. Interest in Securities of the Issuer.
(a) Kimco beneficially owns an aggregate of 345,498 Shares, or
approximately 9.7% of the outstanding Shares, and Services beneficially owns an
aggregate of 511,228 Shares, or approximately 14.4% of the outstanding Shares
(based on 3,561,553 Shares reported by the Company to be outstanding as of
August 4, 2000, in the Company's Quarterly Report on Form 10-Q for the Period
Ended June 30, 2000).
Mr. Cooper beneficially owns 544,179 Shares (which includes all of
the Shares owned by Services, 60.0% of whose voting common stock is owned by Mr.
Cooper), or approximately 15.3% of the outstanding Shares, of which 2,012 Shares
are held through IRA accounts, and 3,127 Shares are held by a trust for Adam
Kimmel, the son of Martin S. Kimmel (the "Kimmel Trust"), for which Mr. Cooper
serves as a trustee. Such holdings do not include an aggregate of 6,050 Shares
held by Mr. Cooper's adult children or their spouses, an aggregate of 2,979
Shares held by nine trusts for the benefit of Mr. Cooper's grandchildren, for
which certain of such adult children serve as trustees, or 3,750 Shares held by
CLS General Partnership Corporation (a Delaware corporation which serves as the
general partner of Power Test Investors Limited Partnership, a New York limited
partnership), of which Mr. Cooper is a stockholder and serves as secretary and a
director, as to all of which Shares Mr. Cooper disclaims beneficial ownership.
All of such Shares were received by such persons in the Distribution by reason
of their ownership of RPS Shares.
Except as set forth herein, each of the Reporting Persons disclaims
beneficial ownership of any Shares beneficially owned by any other person
described in this Item 5(a) or on Schedule II hereto.
(b) Each Reporting Person has sole power to vote, or direct the
vote, and to dispose or direct the disposition of, all Shares reported as
beneficially owned by it or him, except that, (i) Mr. Cooper, by reason of his
ownership of 60% of Services' voting common stock, has the power to direct the
vote or the disposition of all Shares reported as beneficially owned by
Services, and (ii) with respect to the 3,127 Shares held by the Kimmel Trust,
Mr. Cooper shares such power with the other trustee.
(c) Schedule I attached hereto sets forth all transactions in Shares
effected by or for the account of Services since the last Amendment to Schedule
13D. Each such transaction was an open market purchase.
Schedule I
Date Acquired # of Shares Price Per Share
3/22/00 2,200 $7.050
3/23/00 2,800 $7.050
3/24/00 1,000 $7.050
(d) No person other than the Reporting Persons is known to the
Reporting Persons to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the Shares
beneficially owned by the Reporting Persons, except that, with respect to the
Shares owned by the Kimmel Trust, such Trust and the trustee thereof who shares
such power with Mr. Cooper.
(e) Not applicable.
<PAGE>
Page 7 of 22 pages
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
On August 10, 2000, the Company entered into the Amended and
Restated Standstill Agreement with Kimco, Kimco Realty Services, Inc. and Mr.
Cooper. See Item 4 for a description of the Amended and Restated Standstill
Agreement entered into by the Reporting Persons and the Company with respect to
Shares of the Company held by the Reporting Persons.
Item 7. Material to be Filed as Exhibits
Exhibit 4. Amended and Restated Standstill Agreement
<PAGE>
Page 8 of 22 pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
KIMCO REALTY CORPORATION
By: /s/ Milton Cooper
-----------------
Name: Milton Cooper
Title: Chairman and Chief Executive
Officer
KIMCO REALTY SERVICES, INC.
By: /s/ Milton Cooper
-----------------
Name: Milton Cooper
Title: President
By: /s/ Milton Cooper
-----------------
Milton Cooper
MILTON COOPER
Dated: August 10, 2000
<PAGE>
Page 9 of 22 pages
EXHIBIT INDEX
Exhibit Page Number
1. Joint Filing Agreement *
2. Joint Filing Agreement *
3. Standstill Agreement *
4. Amended Standstill Agreement 12
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* Previously filed
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Page 10 of 22 pages
SCHEDULE II
Set forth below is the name, principal business, business address and
beneficial ownership of Shares of each executive officer and director of Kimco
and Services, other than Milton Cooper, for whom such information is contained
in Items 2 and 5 of the Schedule 13D. Unless otherwise indicated, the current
business address of each person is c/o Kimco, 3333 New Hyde Park Road, Suite
100, New Hyde Park, NY 11041-0020. Each such person is a citizen of the United
States of America.
1. Executive Officers & Directors of Kimco.
Name Principal Occupation or Shares Beneficially
Employment Owned(1)
Martin S. Kimmel Director 10,487(2)
Richard G. Dooley Director of Kimco; Consultant -0-
c/o Massachusetts Mutual to Massachusetts Mutual Life
Life Insurance Company Insurance Company
1295 State Street
Springfield, Mass. 01111
Michael J. Flynn Vice Chairman of the Board of -0-
Directors, President and Chief
Operating Officer of Kimco
Frank Lourenso Director of Kimco; Executive -0-
c/o The Chase Manhattan Vice President of The Chase
Bank Manhattan Bank
270 Park Avenue
New York, NY 10017
Joe Grills Director of Kimco; Chief -0-
11479 Twin Mountains Road Investment Officer for the IBM
Clifton, VI 22733 Retirement Funds, 1986-1993
Joseph K. Kornwasser Director of Kimco, Senior -0-
Executive Vice President
Alex Weiss Vice President--MIS of Kimco 1,250
Michael V. Pappagallo Chief Financial Officer of -0-
Kimco
Bruce M. Kauderer Vice President, Legal and -0-
Secretary of Kimco
Jerald Friedman Executive Vice President -0-
Joseph V. Denis Vice President, Construction -0-
of Kimco
Glenn G. Cohen Vice President and Treasurer -0-
of Kimco
Robert Nadler President -- Midwest Division -0-
of Kimco
Joel Yarmak Vice President -- Financial -0-
Operations of Kimco
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Page 11 of 22 pages
----------------
1 All of such Shares were received in the Distribution and no
consideration was paid therefor.
2 Does not include 14,135 Shares beneficially owned by Mr. Kimmel's wife or
3,127 by a trust for the benefit of Mr. Kimmel's son, for which Mr. Cooper
serves as trustee, as to which Mr. Kimmel disclaims beneficial interest.
Such Shares were received in the Distribution and no consideration was
paid therefor.
2. Executive Officers & Directors of Services.
Name Principal Occupation or Employment Shares Beneficially
Owned
Arthur Friedman Director and Secretary of Services; -0-
Certified Public Accountant
Sol Denbaum Director of Services; Vice -0-
President - Maintenance (retired)
of Kimco
Michael V. Pappagallo Chief Financial Officer of Kimco -0-
and Services
Milton Cooper Director and President of Kimco 544,179
Realty Services
Martin Kimmel Director of Kimco Realty Services 10,487
<PAGE>
Page 12 of 22 pages
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 Milton Cooper ("Cooper") on the other hand (each of
KRC, KRS and Cooper, 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 Cooper 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;
<PAGE>
Page 13 of 22 pages
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, Cooper and any Affiliated Persons, and
<PAGE>
Page 14 of 22 pages
(iv) disclose any intention, plan or arrangement
inconsistent with the provisions of this Section
1.
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 Mr. Cooper, 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) Mr. Cooper's spouse, and any relative of Mr. Cooper or
his spouse who has the same home as Mr. Cooper and any trust in which Mr. Cooper
or his spouse has a substantial beneficial interest or as to which Mr. Cooper
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- Gershenson 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
<PAGE>
Page 15 of 22 pages
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 acknowledges that all amounts paid to Joel M. Pashcow,
Herbert Liechtung, 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-Gershenson, 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
<PAGE>
Page 16 of 22 pages
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 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
<PAGE>
Page 17 of 22 pages
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 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
<PAGE>
Page 18 of 22 pages
(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:
-------------------------
Mr. Milton Cooper
Kimco Realty Corporation
333 New Hyde Park Road
New Hyde Park, NY 11042-0020
With a copy to:
---------------
Erica H. Steinberger, Esq.
Latham & Watkins
885 Third Avenue
New York, New York 90022-4802
If to ART addressed to:
-----------------------
Mr. Joel M. Pashcow
Atlantic Realty Trust
747 Third Avenue,
New York, New York 10017
With a copy to:
---------------
Steven L. Lichtenfeld, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(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.
<PAGE>
Page 19 of 22 pages
(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.
(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.
<PAGE>
Page 20 of 22 pages
(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 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.
<PAGE>
Page 21 of 22 pages
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.
<PAGE>
Page 22 of 22 pages
IN WITNESS WHEREOF, the undersigned have executed this
Standstill Agreement, on the date first written above.
KIMCO REALTY CORPORATION
By /s/ Milton Cooper
-------------------
Name: Milton Cooper
Title: Chairman of the Board
KIMCO REALTY SERVICES
By /s/ Milton Cooper
-------------------
Name: Milton Cooper
Title: President
/s/ Milton Cooper
------------------
MILTON COOPER
ATLANTIC REALTY TRUST
By /s/ Edwin R. Frankel
--------------------
Name: Edwin R. Frankel
Title: Executive V.P.
