Exhibit 10.24


 


EXCLUSIVITY SERVICES
AGREEMENT


 


 


EXCLUSIVITY SERVICES
AGREEMENT, dated as of __________  ___,
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;


 


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(ii)                            passive investments in real estate
entities where the investment does not represent the greater of a 10% equity
interest in the entity or $1,500,000; and


 


(iii)                         investments which
relate to assets that are then currently held by entities set forth on Schedule
1 hereto (such entities being hereinafter referred to as “Ashner
Entities”).


 


(iv)                        investments in assets directly or
indirectly owned or controlled by an Ashner Entity.


Article
III


General Provisions


Section 3.1             Termination.  Except as contemplated by Section 2.1 hereof,
this Agreement shall automatically terminate upon the termination of the
Exclusivity Assignment.  This Agreement
shall terminate at such time as the Exclusivity Period terminates.  The Company may terminate this Agreement at
any time upon 10 days prior notice.


Section 3.2             Amendment.  This Agreement may not be amended except by
an instrument in writing signed by the parties hereto, which in the case of the
Company shall require the majority vote of its independent directors (as defined
in the Rules and Regulations of the New York Stock Exchange).


Section 3.3             Notices.  All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
telecopy or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 3.3):


if to Ashner:


 


Two Jericho Plaza


Wing A — Suite 111


Jericho, NY  11753


Telephone: (516) 822-0022


Fax No.:    (516) 433-2777


 


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if to the Company:


 


Newkirk Realty Trust,
Inc.


7 Bulfinch Place


Suite 500


Boston, MA 02114


Telephone No: (617)
570-4600


Telecopier No: (617)
742-4643


Attention: Carolyn
Tiffany


 


Section 3.4             Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the agreements contained herein are not affected in any
manner materially adverse to any party. 
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the agreements contained herein be consummated as originally contemplated to
the fullest extent possible.


Section 3.5             Specific
Performance.  The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement is not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.


Section 3.6             Entire
Agreement; Assignment.  This
Agreement constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof and thereof.  This
Agreement shall not be assigned by operation of law or otherwise.


Section 3.7             Waiver.  No purported extension or waiver by any party
shall be valid unless set forth in an instrument in writing signed by the party
or parties to be bound thereby.


Section 3.8             Parties
in Interest.  This Agreement shall be
binding upon and inure to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.


Section 3.9             Governing
Law.  This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts executed in and to be performed in that
State.  All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined
exclusively in any New York state or federal court.  The parties hereto hereby (a) submit to the
exclusive jurisdiction of the courts of the State of New York for the purpose
of any Action arising out of or relating to this Agreement brought by any party
hereto, and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or


 


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otherwise,
in any such Action, any claim that it is not subject personally to the
jurisdiction of the above-named court, that its property is exempt or immune
from attachment or execution, that the Action is brought in an inconvenient
forum, that the venue of the Action is improper, or that this Agreement or the
Transactions may not be enforced in or by the above-named court.


Section 3.10   Waiver of Jury Trial.   EACH OF THE PARTIES HERETO HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. 
EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.10.


Section 3.11   Headings.  The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.


Section 3.12   Counterparts.  This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.


IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed as of the date first written
above.


	
   

  	
  NEWKIRK REALTY TRUST, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Michael L. Ashner

  
				



 


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Schedule
1


 


 


 


600 Grant AS GP L.P.


AP-PCC III, L.P.


AP-WEM USR LLC


Exeter Capital
Corporation (family management company with less than $100,000 in assets)


First Union Real Estate
Equity and Mortgage Investments


First Winthrop
Corporation


FUR Holdings LLC


FUR Advisors LLC


FUR Investors LLC


Kestrel Management Corp.


Kestrel Management, L.P.


MAQ/JV Associates LLC


MAQ/Pines Limited
Partnership


Newkirk NL Holdings LLC


Newkirk RE Holdings LLC


U.S. Realty Advisors LLC


WEM-Brynmawr Associates
LLC


Winthrop Financial
Associates, A Limited Partnership


Winthrop Management, L.P.


 


 


and (i) all other single
asset entities in which Michael Ashner holds an investment as of the date of this
Agreement, and (ii) other entities in which Michael Ashner holds a
non-controlling interest as of the date of this Agreement.


 


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