BOARD OBSERVER AGREEMENT
Exhibit 10.1
This Board Observer Agreement (this “Agreement”), dated as of June 30, 2020, is made by and between New York REIT Liquidating LLC, a Delaware limited liability company (the “Company”), and Xxxxxx Xxxxxxx (“Xx. Xxxxxxx”).
RECITALS
WHEREAS, the Company is appointing Xx. Xxxxxxx to attend, in a non-voting observer capacity, meetings of the board of managers of the Company (the “Board”); and
WHEREAS, in connection with Xx. Xxxxxxx’x appointment, the parties hereto have agreed to certain other matters, as provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants made herein and the mutual benefits to be derived herefrom, the parties agree as follows:
Section 1.1. Appointment of Board Observer.
(a) Subject to the terms and conditions set forth in this Agreement, the Company hereby appoints Xx. Xxxxxxx to attend, in a non-voting observer capacity, all meetings of the Board, for a term of one year, which shall renew automatically for successive one-year terms unless either party provides the other written notice of its intent not to renew this Agreement at least 30 days prior to the end of the then-current term, or until Xx. Xxxxxxx’x earlier death or resignation. Xx. Xxxxxxx shall have the right to be heard at any such meeting, but in no event shall he: (i) be deemed to be a member of the Board, (ii) have the right to vote on any matter under consideration by the Board or otherwise have any power to cause the Company to take, or not to take, any action or (iii) have, or be deemed to have, or otherwise be subject to, any fiduciary duties to the Company or its unitholders applicable to the managers of the Company. For the avoidance of doubt, Xx. Xxxxxxx’x presence shall not be necessary to establish a quorum at any meeting of the Board.
(b) For so long as Xx. Xxxxxxx serves as a Board observer, subject to Section 1.1(c) below, he shall be provided copies of all notices, minutes, consents, and other written materials that are provided to its managers at substantially the same time and in substantially the same manner as such materials are delivered to the Company’s managers in their roles as members of the Board.
(c) Notwithstanding the foregoing, the Company may withhold any information and exclude Xx. Xxxxxxx from any meeting (or portion thereof) if the Board determines that (i) access to such information or attendance at such meeting (or portion thereof) could adversely affect the attorney-client privilege between the Company and its counsel, (ii) access to such information or attendance at such meeting could result in an actual or potential conflict between the Company and Xx. Xxxxxxx or his affiliates, including if the Board or any Board committee plans to discuss (x) non-public, tenant-level information relating to Worldwide Plaza (“WWP”) or (y) non-public information relating to the sale of WWP or the Company’s ownership interst in WWP, or (iii) such exclusion from information or attendance is necessary or advisable (on the advice of the counsel) to satisfy Board members’ fiduciary duties as managers of the Company to all holders of the Company’s units.
Section 1.2. Confidential Treatment of Company Confidential Information.
(a) Confidential Information. Except as otherwise provided in this Agreement, Xx. Xxxxxxx agrees to hold in strict confidence all non-public, proprietary or confidential information (written, oral, electronic or otherwise) of the Company or its affiliates that is disclosed to him by or on behalf of the Company (collectively, “Confidential Information”). Without the prior written consent of the Board, Xx. Xxxxxxx will not, directly or indirectly, use (other than to provide advice to the Board) or disclose any Confidential Information to any other person or entity. “Confidential Information” does not include information (i) that is or becomes available to the public other than as a result of an act or omission by Xx. Xxxxxxx or one of his affiliates, (ii) that Xx. Xxxxxxx receives or has received on a non-confidential basis from a source who is not, to Xx. Xxxxxxx’x knowledge, subject to a contractual, legal, fiduciary or other obligation of confidentiality with respect to such information or (iii) that Xx. Xxxxxxx or one of his affiliates or representatives develops independently of and without any reference to any Confidential Information disclosed to Xx. Xxxxxxx. Xx. Xxxxxxx understands and agrees that, by virtue of this Agreement or receiving Confidential Information, he shall not obtain any title to, or any other ownership interest in, any Confidential Information. The Company acknowledges and agrees that nothing in this Agreement (including Section 1.2(a)) shall limit, restrict or prohibit Xx. Xxxxxxx from participating in any sale of, submitting an offer or bid for, or otherwise seeking to acquire, the Company’s ownership interest in WWP.
(b) Disclosure of Confidential Information. In the event that Xx. Xxxxxxx is requested or required, in connection with any proceeding by or before a governmental authority, to disclose any Confidential Information, he will give the Company prompt written notice of such request or requirement so that the Company may seek, at its sole expense, an appropriate order or other remedy protecting the Confidential Information from disclosure, and Xx. Xxxxxxx will reasonably cooperate with the Company to obtain such protective order or other remedy. In the event that a protective order or other remedy is not obtained or the Company waives its right to seek such an order or other remedy, Xx. Xxxxxxx may, without liability under this Agreement, furnish only that portion of the Confidential Information which, on the advice of counsel, Xx. Xxxxxxx is legally required to disclose in connection with such proceeding; provided that Xx. Xxxxxxx gives the Company written notice of the information to be disclosed as far in advance of its disclosure as practicable and use commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.
(c) Return or Destruction of Confidential Information. At such time as Xx. Xxxxxxx is no longer a Board observer, Xx. Xxxxxxx will promptly: (i) return to the Company (or destroy) all physical materials containing or consisting of Confidential Information and all hard copies thereof and (ii) destroy all electronically stored Confidential Information in Xx. Xxxxxxx’x possession or control. Xx. Xxxxxxx will be permitted to retain one copy of the Confidential Information for regulatory or compliance purposes and electronic copies of Confidential Information automatically generated through back-up and/or archiving systems. Any Confidential Information that is not returned or destroyed, including any oral Confidential Information, and all notes, analyses, compilations, studies or other documents prepared by or for the benefit of Xx. Xxxxxxx from such information, will remain subject to the obligations set forth in this Section 1.2 for so long as such Confidential Information is retained.
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Section 1.3. Specific Performance; Governing Law. The parties acknowledge and agree that if for any reason any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy. Accordingly, each party agrees that in addition to other remedies the other party shall be entitled to at law or equity, the other party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in the Court of Chancery of the State of Delaware or, if just court declines jurisdiction, the federal courts of the State of Delaware or, if such courts decline jusrisdiction, the state courts of the State of Delaware. In the event that any action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law. Furthermore, each of the parties hereto (a) consents to submit itself or himself to the exclusive personal jurisdiction of the aforementioned courts in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (b) agrees that it or he shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it or he shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than the aforementioned courts as provided above, (d) irrevocably waives any right to trial by jury, (e) agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief and (f) irrevocably consents to service of process by a reputable overnight mail delivery service, signature requested, to the address set forth in Section 1.6 (if applicable), the address of such party’s principal place of business (if the address of such party is not set forth in Section 1.6) or such party’s address as determined pursuant to applicable law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
Section 1.4. No Waiver. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
Section 1.5. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof.
Section 1.6. Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email address set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal business hours at the address specified in this subsection:
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| If to the Company: | ||||
| New York REIT Liquidating LLC | ||||
| 0 Xxxxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: | Xxxxxxxx X. Read | |||
| Email: | xxxxxx@xxxxx.xxx | |||
| With a copy (which shall not constitute notice) to: | ||||
| Debevoise & Xxxxxxxx LLP | ||||
| 000 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attention: | Xxxxxxx X. Xxxxxx | |||
| Email: | xxxxxxxx@xxxxxxxxx.xxx | |||
| If to Xx. Xxxxxxx: | ||||
| 0 Xxxxxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 1001 | ||||
| Attention: | Xxxxxx Xxxxxxx | |||
| Email: | xxxxxx@xxxxxxxxxxxx.xxx | |||
Section 1.7. Amendments. This Agreement may only be amended pursuant to a written agreement executed by Xx. Xxxxxxx and the Company.
Section 1.8. Severability. If at any time subsequent to the date of this Agreement, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.
Section 1.9. Counterparts. This Agreement may be executed (including by facismile or PDF) in two or more counterparts which together shall constitute a single agreement.
Section 1.10. Successors and Assigns. This Agreement shall not be assignable by any of the parties to this Agreement. This Agreement, however, shall be binding on successors of the parties hereto.
Section 1.11. Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.
Section 1.12. Interpretation and Construction. Each party acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same with the advice of said independent counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this
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Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each party hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting or preparation. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The term “including” shall be deemed to mean “including without limitation” in all instances.
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IN WITNESS WHEREOF, each party hereto has executed this Agreement as of the date first above written.
| NEW YORK REIT LIQUIDATING LLC | ||
| By: | /s/ Xxxxxxxx X. Read | |
| Name: Xxxxxxxx X. Read | ||
| Title: Chairman | ||
[Signature Page to Board Observer Agreement]
| /s/ Xxxxxx Xxxxxxx |
| Xxxxxx Xxxxxxx |
[Signature Page to Board Observer Agreement]
