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 c
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