EXCLUSIVITY SERVICES AGREEMENT
Exhibit 10.24
EXCLUSIVITY SERVICES AGREEMENT
EXCLUSIVITY SERVICES AGREEMENT, dated as of __________ ___, 2005 (this “Agreement”), between ▇▇▇▇▇▇▇ REALTY TRUST, INC., a Maryland corporation (the “Company”) and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”), 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 ▇▇▇▇▇▇ (the “First Union Agreement”), ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ and each such agreement constitutes the legal, valid and binding obligation of ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇: (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 “▇▇▇▇▇▇ Entities”).
(iv) investments in assets directly or indirectly owned or controlled by an ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇:
Two Jericho Plaza
Wing A — ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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if to the Company:
▇▇▇▇▇▇▇ Realty Trust, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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.
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▇▇▇▇▇▇▇ REALTY TRUST, INC. |
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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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
▇▇▇▇▇▇▇ ▇▇ Holdings LLC
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ holds an investment as of the date of this Agreement, and (ii) other entities in which ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ holds a non-controlling interest as of the date of this Agreement.
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