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Exhibit 10.10
EXCLUSIVITY SERVICES AGREEMENT
EXCLUSIVITY SERVICES AGREEMENT, dated as of November 7, 2005 (this “Agreement”), between NEWKIRK REALTY TRUST, INC., a Maryland corporation (the “Company”) and MICHAEL L. ASHNER (“Ashner”), an individual.
RECITALS
WHEREAS, pursuant to that certain Exclusivity Services Agreement, dated as of December 31, 2003, between First Union Real Estate Equity and Mortgage Investments, an Ohio business trust (“First Union”), and Ashner (the “First Union Agreement”), Ashner agreed, subject to certain conditions, to offer to First Union all Business Opportunities (as defined in the First Union Agreement) offered to him during the period that he is serving either as an executive officer of First Union or as a member of the Board of Trustees of First Union;
WHEREAS, pursuant to that certain Acquisition Agreement, dated of even date herewith, between the Company and First Union (the “Acquisition Agreement”), simultaneously herewith First Union is assigning to the Company all of its right, title and interest under the First Union Agreement solely with respect to Business Opportunities related to Net Lease Assets (as defined in the Acquisition Agreement);
WHEREAS, it is a condition to the Company entering into the Acquisition Agreement that Ashner confirm the assignment provided for in the Acquisition Agreement and enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and mutual provisions and agreements contained herein, the parties hereto agree as follows:
Article I
Confirmation of Assignment
Section 1.1 Confirmation of Assignment. Ashner hereby consents to the assignment provided for in the Acquisition Agreement and agrees to be bound by the terms of the First Union Agreement as in effect on the date hereof.
Section 1.2 No Modification. Ashner covenants and agrees that he will not consent to any amendment or modification of the First Union Agreement to the extent such amendment or modification would relieve Ashner of his obligations to offer all Business Opportunities as they relate to Net Lease Assets in accordance with the terms of the First Union Agreement without the prior written consent of the Company.
Section 1.3 Representations and Warranties. Ashner represents and warrants to the Company that:
(i)
He had the full power
and authority to enter into the First Union Agreement and to consummate the
transaction contemplated thereby and has the full
power and authority to enter into this Agreement and consummate the transactions contemplated hereby;
(ii)
The First Union
Agreement was, and this Agreement has been, duly executed and delivered by
Ashner and each such agreement constitutes the legal, valid and binding
obligation of Ashner, enforceable in accordance with its terms, except as such
enforceability may be subject to the effects of any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors’ rights generally and subject to the effects of
general equitable principles;
(iii)
The rights granted by
Ashner to First Union pursuant to the First Union Agreement were granted free
and clear of any lien or other encumbrance.
Article II
Net Lease Business Opportunities
Section 2.1 Net Lease Business Opportunity. If the Acquisition Agreement is terminated solely as a result of the termination of the First Union Agreement, Ashner covenants and agrees that from and after such date, any Net Lease Business Opportunity offered to him during the Exclusivity Period shall be offered to the Company. ”Net Lease Business Opportunity” shall mean any investment in real property or assets related thereto other than a Permitted Investment (as defined in Section 2.2) and which relate solely to (i) a property that is either (a) triple net leased or (b) where a tenant leases at least 85% of the rentable square footage of the property and, in addition to base rent, the tenant is required to pay some or all of the operating expenses for the property, and, in both (a) and (b) the lease has a remaining term, exclusive of all unexercised renewal terms, of more than 18 months, (ii) management agreements and master leases with terms of greater than three years where a manager or master lessee bears all operating expenses of the property and pays the owner a fixed return, (iii) securities of companies including, without limitation, corporations, partnerships and limited liability companies, whether or not publicly traded, that are primarily invested in assets that meet the requirements of clauses (i) and (ii), and (iv) all retenanting and redevelopment associated with such properties, agreements and leases, and all activities incidental thereto. “Exclusivity Period” means all times during which Ashner: (i) serves as an executive officer of the Company; (ii) serves as a member of the Company’s board of directors; or (iii) is the controlling equityholder, directly or indirectly, of the external advisor to the Company.
Section 2.2 Permitted Investments. Notwithstanding anything herein to the contrary, none of the following shall be deemed a Net Lease Business Opportunity (each, a “Permitted Investment”):
(i)
investments in equity securities of
publicly traded real estate entities in an amount not to exceed two percent
(2%) of the outstanding equity securities of such entity;
2
(ii)
