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;
2
(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).