**Exhibit 10.41**

 

NON-COMPETITION AND CONFIDENTIALITY AGREEMENT

 

THISNON-COMPETITION AND CONFIDENTIALITY AGREEMENT (“Agreement”) is made and enteredinto effective this 2nd day of July, 2007 (the “Effective Date”) byand between Centro NP LLC (“Centro”) and John B. Roche (“Roche”), the EffectiveDate being Roche’s last day of employment with Centro.

 

WHEREAS,Roche previously served as Executive Vice President and Chief Financial Officerof New Plan Excel Realty Trust, Inc. (“New Plan”) pursuant to that certainEmployment Agreement entered into with New Plan dated as of April 14, 2000(as amended, the “Employment Agreement”) and as such has unique knowledge aboutthe business, assets, operations, and affairs of New Plan;

 

WHERAS,on February 27, 2007, New Plan and Excel Realty Partners, L.P. enteredinto an Agreement and Plan of Merger with Centro, Super MergerSub Inc. and SuperDownREIT MergerSub LLC (the “Buyer Parties”) (the “Merger Agreement”);

 

WHERAS,on April 20, 2007, New Plan and the Buyer Parties completed the transactionscontemplated by the Merger Agreement (the “Merger”) and following the completionof these transactions, New Plan dissolved into Centro (together with its affiliatesand subsidiaries, “Centro”);

 

WHEREAS,Centro is engaged in the businesses of owning, operating, investing in,constructing, managing, developing, re-developing, and leasing shopping centerand other retail properties;

 

WHEREAS,in connection with the Merger, Roche has provided notice under the EmploymentAgreement of his termination of employment for “Good Reason” (per the terms ofthe Employment Agreement) and as such will be terminating as of July 2, 2007 (the “Termination Date”) all positions he holds with Centro (assuccessor to New Plan) and its subsidiaries and affiliates; and

 

WHEREAS,in an effort to protect the legitimate business interests of Centro in view ofRoche’s unique knowledge about the business, assets, operations and affairs of Centro,Centro desires that Roche enter into this Agreement;

 

NOW,THEREFORE, in consideration of the foregoing and other good and valuableconsideration, the receipt and sufficiency of which hereby are acknowledged,the parties hereto severally agree as follows:

 

1.          Payment. Inconsideration of Roche’s agreement to enter into and be bound by the terms ofthis Agreement, Centro shall pay Roche (subject (to the extent applicable) toincome tax and employment tax withholdings at the applicable rates) $1,367,500U.S. on the first business day following the six month anniversary of the TerminationDate which payment shall (before such withholdings) be in full satisfaction of thepayment obligations of Centro to Roche under this Agreement and the Employment Agreement.To the extent that Roche has any remaining unused and accrued vacation time

 

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as of the Termination Date,said amount shall be paid to Roche per Centro policy. In addition, Roche shallbe entitled to keep the laptop computer currently being used by Roche. Asadditional consideration for and as a pre-condition to payment of the amountset forth in this Section 1, Roche shall have executed and delivered (andnot revoked or rescinded) a Waiver and Release Agreement in the form attachedhereto as Exhibit A (withno modifications thereto unless agreed to by Centro in its sole discretion). Inthe event that Roche fails to so execute and deliver the foregoing Waiver andRelease as so provided, then the obligation of Centro to make the paymentprovided for in this Section 1 shall terminate and be null and void and ofno further force or effect.

 

2.             Non-competition.

 

(a)           Definitions. For purposesof this Agreement, the “Restricted Period shall be the one year period whichstarts on the Effective Date. For purposes of this Agreement, the “RestrictedArea” shall be any metropolitan area in which Centro owns shopping centerassets.

 

(b)           Non-Compete. During theRestricted Period, Roche shall not serve as an officer or as a director of anyreal estate investment trust or real estate company (either public or private)which in the Restricted Area is primarily engaged in the business of owning,operating, investing in, constructing, managing, developing, re-developing, orleasing neighborhood and/or community strip shopping center properties.

 

3.             Non-Solicitation.

 

(a)           Customers. During theRestricted Period, Roche shall not solicit any now existing tenant of Centro(or any entity through which Centro may conduct business during the RestrictedPeriod) for the purpose of inducing or otherwise intending to cause such tenantto cease being a tenant ofCentro or any entity through which Centro may conduct business in the future).

 

(b)           Employees. During theRestricted Period, Roche shall not solicit any employee of Centro (or anyentity through which Centro may conduct business in the future)(including anyemployee formerly employed by New Plan) for the purpose of causing suchemployee to leave the employment of Centro (or any entity through which Centromay conduct business in the future).

 

4.             Nondisclosure ofConfidential Information. Roche hereby agrees not to use or disclose,directly or indirectly, during the Restricted Period any Confidential Information(as defined below) that Roche may have acquired during the term of his employmentwith New Plan or thereafter for so long as such information remains confidentialduring the Restricted Period. The term “Confidential Information” as used in thisAgreement shall mean non-public information of Centro (including New Plan), including,but not limited to, tenant and leasing information and policies, property developmentplans (including zoning matters), proprietary information, financial data,

 

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financial plans, lists ofactual or potential customers or suppliers, rent rolls, property informationand/or any other information which is generally not known to the public, whetheror not protected by patents, trademarks, or copyrights.

 

5.             Reasonable andNecessary Restrictions. Roche acknowledges that the restrictions,prohibitions, and other provisions hereof, including, without limitation, the RestrictedArea and the Restricted Period, are reasonable, fair, and equitable in terms ofduration, scope, and geographic area, are necessary to protect the legitimatebusiness interests of Centro (including the goodwill of the New Plan acquiredin the Merger), and were a material inducement to enter into this Agreement andto make the payments to Roche described in Section 1 hereof.

 

6.             Specific Performance. Rocheacknowledges that the obligations undertaken pursuant to this Agreement areunique and that Centro will have no adequate remedy at law if Roche violatesthe restrictions set forth herein. Roche therefore confirms that the right ofCentro to specific performance of the terms of this Agreement is essential toprotect the rights and interests of Centro. Accordingly, in addition to anyother remedies that Centro may have at law or in equity, Centro shall have theright to have all obligations, covenants, agreements, and other provisions ofthis Agreement specifically performed by Roche, and Centro shall have the rightto obtain preliminary and permanent injunctive relief to secure specificperformance and to prevent a breach or contemplated breach of this Agreement byRoche. Further, Roche submits to the jurisdiction of the courts of the State describedin Section 7(f) forthis purpose. Further, Roche agrees to indemnify and hold harmless Centro fromand against any reasonable costs and expenses incurred by Centro as a result ofany breach of this Agreement by Roche, and in enforcing and preserving Centro’srights under this Agreement, including, but not limited to, Centro’s reasonableattorneys’ fees.

 

7.             Miscellaneous Provisions.

 

(a)           Binding Effect. Subject toany provisions hereof restricting assignment, all covenants and agreements inthis Agreement by or on behalf of any of the parties hereto shall bind andinure to the benefit of their respective successors, assigns, heirs, andpersonal representatives.

 

(b)           Assignment. None of theparties hereto may assign any of his or its rights under this Agreement orattempt to have any other person or entity assume any of his or its obligationshereunder, except that the Centro may assign any of their rights, interests,and obligations under this Agreement to any affiliate or to any successor personor entity to Centro.

 

(c)           Integration; Amendment. This Agreement constitutesthe entire agreement between the parties hereto with respect to the matters setforth herein and supersedes and renders of no force and effect all prior oralor written agreements, commitments and understandings between the parties withrespect to the matters set forth

 

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herein (including, as toamounts unpaid as of the Effective Date, the terms of the EmploymentAgreement). Except as otherwise expressly provided in this Agreement, no amendment,modification, or discharge of this Agreement shall be valid or binding unless setforth in writing and duly executed by each of the parties hereto.Notwithstanding the foregoing, Section 11 of the Employment Agreement shall continue to apply and bebinding upon the parties hereto. 

 

(d)           Waivers. No waiver bya party hereto shall be effective unless made in a written instrument dulyexecuted by the party against whom such waiver is sought to be enforced, andonly to the extent set forth in such instrument. Neither the waiver by eitherof the parties hereto of a breach or a default under any of the provisions of thisAgreement, nor the failure of any of the parties, on one or more occasions, toenforce any of the provisions of this Agreement or to exercise any right orprivilege hereunder, shall thereafter be construed as a waiver of anysubsequent breach or default of a similar nature, or as a waiver of any suchprovisions, rights or privileges hereunder.

 

(e)           Severability. The partiesagree that if fulfillment of any provision of this Agreement, at the time suchfulfillment shall be due, shall transcend the limit of validity prescribed bylaw, then the court making such determination of invalidity shall reduce suchprovision and shall enforce it to the maximum extent permitted by law. Theparties further agree that if any clause or provision contained in thisAgreement operates or would operate to invalidate this Agreement, in whole orin part, then such clause or provision only shall be held ineffective, asthough not herein contained, and the remainder of this Agreement shall remainoperative and in full force and effect. 

 

(f)            Governing Law; Jurisdiction. ThisAgreement, the rights and obligations of the parties hereto, and any claims ordisputes relating thereto, shall be governed by and construed in accordancewith the laws of the State of New York, but not including the choice-of-law rules thereof.Venue shall be in the courts in New York city. 

 

(g)           Headings. Section andsubsection headings contained in this Agreement are inserted for convenience ofreference only, shall not be deemed to be a part of this Agreement for anypurpose, and shall not in any way define or affect the meaning, construction,or scope of any of the provisions hereof. 

 

(h)           Pronouns. All pronounsand any variations thereof shall be deemed to refer to the masculine, feminine,neuter, singular, or plural, as the identity of the person or entity mayrequire. 

 

(i)            Execution in Counterparts. To facilitateexecution, this Agreement may be executed in as many counterparts as may berequired. It shall not be necessary that the signature of or on behalf of eachparty appears on each counterpart, but it shall be sufficient that thesignature of or on behalf of each party appears on one or more of thecounterparts. All counterpartsshall collectively constitute a single agreement. It shall not be necessary inany proof of this Agreement to produce or account for more than a number ofcounterparts containing the respective signatures of or on behalf of all of theparties. 

 

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(j)            Notices. All notices called for under thisAgreement shall be in writing and shall be deemed given upon receipt ifdelivered personally and followed promptly by mail, or if mailed by registeredor certified mail (return receipt requested), postage prepaid, or if sent byfacsimile and followed promptly by mail, to the parties at the followingaddresses: 

 

(A)          ifto Roche:

 
|   | 1180  Bridge Pointe Lane          |
|--------|-----------------------------------|
|   | Yorktown Heights, New York  10598 |

 

(B)           ifto Centro:

 
|   | 420  Lexington Avenue        |
|--------|------------------------------|
|   | New York, New York 10170     |
|   |                         |
|   | Attention: Steven F.  Siegel |
|   |                         | Executive Vice President |

 

or to any other address oraddressee as any party entitled to receive notice under this Agreement shalldesignate, from time to time, to othersin the manner provided in this Section 7(j) for the service of notices; provided, however,that notices of a change of address shall be effective only upon receiptthereof.

 

Anynotice delivered to the party hereto to whom it is addressed shall be deemed tohave been given and received on the day it was received; provided, however,that if such day is not a business day, then the notice shall be deemed to havebeen given and received on the business day next following such day. Any notice sent by facsimile transmissionshall be deemed to have been given and received on the business day next followingthe transmission. 

 

INWITNESS WHEREOF, each of theundersigned has executed this Agreement, or caused this Agreement to be dulyexecuted on its behalf, as of the date first set forth at the beginning of thisAgreement.

 
|   | John  Roche                      |
|--------|----------------------------------|
|   |                             |
|   | /s/  John Roche                  |
|   |                             |
|   | Centro  NP LLC                   |
|   |                             |
|   | By:  /s/ Steven F. Siegal        |
|   | Name:  Steven F. Siegal          |
|   | Title:  Executive Vice President |

 

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