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