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;


 


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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:

  	
  /s/ Michael L. Ashner

  	
   

  
	
   

  	
  Name:

  	
  Michael L. Ashner

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael
  L. Ashner

  	
   

  
	
   

  	
  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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