Exhibit 10.1
EXECUTION VERSION
AMENDED AND RESTATED EXCLUSIVITY SERVICES
AGREEMENT
AMENDED AND RESTATED EXCLUSIVITY
SERVICES AGREEMENT, dated as of December 31, 2006 (this
“Agreement”), between LEXINGTON REALTY TRUST, a
Maryland real estate investment trust (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 (currently known as Winthrop Realty Trust)
(“First Union”), and Ashner, as amended by Amendment
No. 1 to Exclusivity Services Agreement (as amended, 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 November 7, 2005, between Newkirk
Realty Trust, Inc., a Maryland corporation (“Newkirk”),
and First Union (the “Acquisition Agreement”), First
Union assigned to Newkirk 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, in connection with the
transactions contemplated by the Acquisition Agreement, Newkirk and
Ashner entered into that certain Exclusivity Services Agreement
dated November 7, 2005 (the “Newkirk Exclusivity
Agreement”) pursuant to which, among other things, Ashner
agreed upon the termination of the Acquisition Agreement due to the
termination of the First Union Agreement that any Net Lease
Business Opportunity offered to him during the Exclusivity Period
(as such terms are defined in the Newkirk Exclusivity Agreement)
was to be offered to Newkirk and Ashner has agreed to offer the
same to the Company;
WHEREAS, simultaneously herewith
Newkirk is merging into the Company (the “Merger”) with
the Company being the surviving entity and the Company has assumed
all of the rights and obligations of Newkirk under the Newkirk
Exclusivity Agreement;
WHEREAS, the parties hereto desire
to amended and restate in its entirety the Newkirk Exclusivity
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. Notwithstanding Section 3.6 of this Agreement,
Ashner hereby consents to the assignment to the Company of all of
the rights of Newkirk, and the assumption by the Company of all of
Newkirk’s obligations, under the Newkirk Exclusivity
Agreement by entering into this Agreement from and after the
effective time of the Merger.
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 to the Company 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
[Reserved]
Section
1.4
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; and
(iv) The
consent of Winthrop Realty Trust or any other party other than
Ashner was not required, or was previously obtained (or is being
obtained concurrently herewith), in connection with the assignment
provided for in the Acquisition Agreement or the execution of this
Agreement.
Article II
Net Lease Business
Opportunities
2
Section
2.1 Net
Lease Business Opportunity . If the First Union Agreement is
terminated, Ashner covenants and agrees that from and after such
date, any Net Lease Business Opportunity offered to him or
generated by 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
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