SERVICES AND NON-COMPETE AGREEMENT
Exhibit
10.1
Services
And Non Compete Agreement (this “Agreement”),
dated as of March 20, 2008, by and among Lexington Realty Trust, a Maryland real
estate investment trust (together with its subsidiaries and affiliates, “Company”),
FUR Advisors LLC, a Delaware limited liability company (“FUR”),
and Xxxxxxx X. Xxxxxx, an individual. (“Xxxxxx”) Company,
FUR and Xxxxxx are each referred to herein as a “Party”
and collectively as the “Parties.”
FUR and Xxxxxx are sometimes referred to herein as the “Xxxxxx
Parties.”
Recitals
Whereas, Company desires to obtain
certain services from the Xxxxxx Parties for the purpose of enabling Company to
manage the operation of the properties and businesses owned and conducted by The
Lexington Master Limited Partnership (the “MLP”) and
certain strategic transactions previously entered into by the Company (“Strategic
Transactions”); and
Whereas, Xxxxxx is the Chairman and
Chief Executive Officer of each of FUR and Winthrop Realty Trust, an
unincorporated association in the form of an Ohio business trust (“Winthrop”);
and
Whereas, FUR is the external advisor
to Winthrop.
Now,
Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Company and FUR hereby agree as
follows:
Agreement
1. Scope of Agreement. In
accordance with the terms and conditions of this Agreement, (i) FUR hereby
agrees to provide certain asset management support services to Company, the
nature and scope of which are described in Section 4 of this Agreement; and (ii)
the Xxxxxx Parties and Winthrop, as applicable, hereby agree to (a) the
standstill provisions set forth in Section 6, and (b) the continuation of the
exclusivity and non-compete provisions currently in effect in favor of the
Company.
2. Consideration. In
exchange for providing the Services (defined below) and the other obligations to
be undertaken pursuant to this Agreement, Company shall pay to FUR $1,500,000,
as follows:
|
Payment
Date
|
Payment
Amount
|
|
4/1/08
|
$166,666
|
|
5/1/08
|
$166,666
|
|
6/2/08
|
$166,666
|
|
7/1/08
|
$166,667
|
|
8/1/08
|
$166,667
|
|
9/2/08
|
$166,667
|
|
10/1/08
|
$166,667
|
|
11/3/08
|
$166,667
|
|
12/1/08
|
$166,667
|
3. Term. The
term of this Agreement (the “Term”) shall
commence on the date hereof and shall end on December 31, 2008 (the “Termination
Date”).
4. Services to be Provided by
FUR. Until
the Termination Date, FUR shall provide Company with support of the asset
management functions of Company relating to MLP’s assets and the Strategic
Transactions (the “Services”).
5. Level of
Services. FUR will use the same degree of care in rendering
the Services under this Agreement as it utilizes in rendering such Services for
its own operations and its other clients. Company shall cooperate
with FUR to permit FUR to perform its duties and obligations under this
Agreement in a timely manner (including, without limitation, providing to FUR
any reports or other information required by FUR to discharge its duties
hereunder).
6. Standstill. Each of the Xxxxxx
Parties agrees that until the Termination Date, unless such shall have been
specifically invited in writing by Company, neither the Xxxxxx Parties nor any
of their respective controlled affiliates (as such term is defined under the
rules and regulations promulgated under the Securities Exchange Act of 1934, as
amended (collectively, the “1934
Act”)), including, without limitation, Winthrop, will in any manner,
directly or indirectly, (a) effect or seek, offer or propose (whether publicly
or otherwise) to effect, or cause or participate in or in any way assist any
other person to effect or seek, offer or propose (whether publicly or otherwise)
to effect or participate in, (i) any acquisition of securities (or beneficial
ownership thereof) or assets (unless such assets are otherwise being marketed by
Company) of Company or any of its subsidiaries, affiliates or divisions; (ii)
any tender or exchange offer, merger or other business combination involving
Company or any of its subsidiaries, affiliates or divisions; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to Company or any of its subsidiaries, affiliates or
divisions; or (iv) any “solicitation” of “proxies” (as such terms are used in
the proxy rules of the Securities and Exchange Commission) or consents to vote
any voting securities of Company; (b) form, join or in any way participate in a
“group” (as defined under the 1934 Act); (c) otherwise act, alone or in concert
with others, to seek to control or influence the management, Board of Directors
or Trustees or policies of Company or any of its subsidiaries, affiliates or
divisions; (d) take any action which might force Company to make a public
announcement regarding any of the types of matters set forth in (a) above; (e)
request Company, directly or indirectly, to amend or waive any provision of this
Section 6; or (f) enter into any discussions or arrangements with any third
party with respect to any of the foregoing. Notwithstanding anything herein to
the contrary, the obligations of this Section 6 shall immediately terminate at
such time, if at all, in the event there is a public announcement by Company
that a third party or group has made an offer to acquire (in any manner),
directly or indirectly, (i) control of Company or its Board of Trustees
(including, without limitation, through a solicitation of proxies); (ii) control
of any voting securities of Company; or (iii) all or substantially all of the
businesses or assets of Company.
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7. Amended and Restated Exclusivity
Services Agreement and Acquisition Agreement and Assignment and
Assumption. Notwithstanding anything to the contrary contained
herein, in the Amended and Restated Exclusivity Services Agreement, dated as of
December 31, 2006, between Company and Xxxxxx (the “Exclusivity
Agreement”), or in the Acquisition Agreement, dated as of November 7,
2005, as amended by the Amendment to Acquisition Agreement, Assignment and
Assumption on December 31, 2006, between Xxxxxxx Realty Trust, Inc., Winthrop
and Company (collectively, as amended, the “Acquisition
Agreement”), (a) the Exclusivity Agreement and Acquisition Agreement
shall remain in full force and effect, (b) the Exclusivity Period (as defined in
the Exclusivity Agreement) shall end on the Termination Date, and (c) the
Reversion Date (as defined in the Acquisition Agreement) shall be the
Termination Date.
8. Miscellaneous.
8.1 Amendment and
Modification. This Agreement may not be amended, modified or
supplemented in any manner, whether by course of conduct or otherwise, except by
an instrument in writing signed on behalf of each Party and otherwise as
expressly set forth herein.
8.2 Waiver. No failure
or delay of any Party in exercising any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such right or
power, or any course of conduct, preclude any other or further exercise thereof
or the exercise of any other right or power. The rights and remedies
of the Parties hereunder are cumulative and are not exclusive of any rights or
remedies which they would otherwise have hereunder. Any agreement on
the part of any Party to any such waiver shall be valid only if set forth in a
written instrument executed and delivered by a duly authorized officer on behalf
of such Party.
8.3 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed duly given (a) on the date of delivery if delivered personally, or if by
facsimile, upon written confirmation of receipt by facsimile, e-mail or
otherwise, (b) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service or (c) on the earlier of
confirmed receipt or the fifth business day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered to the addresses
set forth below, or pursuant to such other instructions as may be designated in
writing by the Party to receive such notice:
if
to Winthrop, FUR or Xxxxxx, to:
FUR
Realty Trust
0
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxxx
with copies (which shall not constitute notice) to:
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Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Fax
No: (000) 000-0000
Attention:
Xxxx X. Xxxxxx, Esq.
if
to Company, to:
Xxx Xxxx
Xxxxx
Xxxxx
0000
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attention:
X. Xxxxxx Xxxxx
Xxxxxx
X. Xxxxxxxxx
with a copy (which shall not constitute notice) to:
Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Fax
No.: (000) 000-0000
Attention:
Xxxx Xxxxxxxxxxx, Esq.
8.4 Interpretation. The
headings contained in this Agreement or in any Exhibit are for convenience of
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All words used in this Agreement
will be construed to be of such gender or number as the circumstances
require. Any capitalized terms used in any Exhibit but not otherwise
defined therein shall have the meaning as defined in this
Agreement. The word “including” and words of similar import when used
in this Agreement will mean “including, without limitation”, unless otherwise
specified.
8.5 Entire
Agreement. Other than the Separation Agreement and General
Release between Company and Xxxxxx of even date herewith, this Agreement
constitutes the entire agreement, and supersedes all prior written agreements,
arrangements, communications and understandings and all prior and
contemporaneous oral agreements, arrangements, communications and understandings
among the Parties with respect to the subject matter of this
Agreement. Notwithstanding any oral agreement of the Parties or their
representatives to the contrary, no Party to this Agreement shall be under any
legal obligation to enter into or complete the transactions contemplated hereby
unless and until this Agreement shall have been executed and delivered by each
of the Parties.
8.6 No Third Party
Beneficiaries. This Agreement shall be binding upon and inure
solely to the benefit of each Party and their respective successors and assigns,
and nothing in this
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Agreement,
express or implied, is intended to or shall confer upon any other person any
legal or equitable right, benefit or remedy of any nature under or by reason of
this Agreement.
8.7 Governing Law. This
Agreement and all disputes or controversies arising out of or relating to this
Agreement or the transactions contemplated hereby shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without regard to the laws of any other jurisdiction that might be applied
because of the conflicts of laws principles of the State of New York other than
Section 5-1401 of the New York General Obligations Law.
8.8 Submission to
Jurisdiction. Each of the Parties irrevocably agrees that any
legal action or proceeding arising out of or relating to this Agreement or for
recognition and enforcement of any judgment in respect hereof brought by any
other Party or its successors or assigns may be brought and determined in any
New York State or federal court sitting in New York, New York (or, if such court
lacks subject matter jurisdiction, in any appropriate New York State or federal
court), and each of the Parties hereby irrevocably submits to the jurisdiction
of the aforesaid courts for itself and with respect to its property, generally
and unconditionally, with regard to any such action or proceeding arising out of
or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any action, suit or proceeding relating thereto except in
such courts). Each of the Parties further agrees to accept service of
process in any manner permitted by such courts. Each of the Parties
hereby irrevocably and unconditionally waives, and agrees not to assert, by way
of motion or as a defense, counterclaim or otherwise, in any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, (a) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure
lawfully to serve process, (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) to the fullest extent permitted by law, that (i) the suit, action or
proceeding in any such court is brought in an inconvenient forum, (ii) the venue
of such suit, action or proceeding is improper or (iii) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
8.9 Assignment. No
Party shall be permitted to assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of each other
Party; except that (i) Company may, without such consent, assign all such rights
to any affiliate(s) of Company or to any Person providing financing to Company
as collateral security for such financing; provided that no such
assignment shall relieve Company of any of its obligations hereunder; and (ii)
FUR may, without such consent, assign all such rights to (A) any affiliate
controlling FUR; provided that no such assignment shall relieve FUR of any of
its obligations hereunder or (B) any person that acquires, directly or
indirectly, all or any substantial portion of the assets or securities of
FUR. Any unauthorized assignment or transfer shall be null and
void. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
8.10 Enforcement. The
Parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, each of the
Parties shall be entitled to
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specific
performance of the terms hereof, including an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any New York State or federal court sitting in
New York, New York (or, if such court lacks subject matter jurisdiction, in any
appropriate New York State or federal court), this being in addition to any
other remedy to which they are entitled at law or in equity. Each of
the Parties further hereby waives (a) any defense in any action for specific
performance that a remedy at law would be adequate and (b) any requirement under
any law to post security as a prerequisite to obtaining equitable
relief.
8.11 Severability. Whenever
possible, each provision or portion of any provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable Law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
8.12 Waiver of Jury
Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
8.13 Counterparts. This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same instrument and shall become effective when one or
more counterparts have been signed by each of the Parties and delivered to the
other Parties.
8.14 Facsimile
Signature. This Agreement may be executed by facsimile
signature and a facsimile signature shall constitute an original for all
purposes.
8.15 No Agency. Nothing
in this Agreement shall constitute or be deemed to constitute a partnership or
joint venture between or among the Parties or constitute or be deemed to
constitute any Party the agent or employee of any other Party for any purpose
whatsoever and no Party shall have authority or power to bind any other Party or
to contract in the name of, or create a liability against, the other in any way
or for any purpose.
8.16 Information. Subject
to any applicable laws and privileges, each Party covenants and agrees to
provide each other Party with all information regarding itself and the
transactions under this Agreement that each other Party reasonably believes is
required to comply with all applicable federal, state, county, and local laws,
ordinances, regulations, and codes, and to satisfy the requesting Party’s obligations
hereunder.
[SIGNATURE
PAGE FOLLOWS]
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In Witness
Whereof, the Parties have caused this Agreement to be executed as of the
date first written above.
| Lexington Realty Trust | |||
|
By:
|
/s/ X. Xxxxxx Eglin | ||
|
Name:
|
X. Xxxxxx Eglin | ||
|
Title:
|
Chief Executive Officer | ||
| /s/ Xxxxxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxx | ||
AGREED
AND CONSENTED TO
FOR
PURPOSES OF SECTION 7 ONLY
| Winthrop Realty Trust | |
|
By:
|
/s/ Xxxxx Xxxxxxxxx |
| Xxxxx Xxxxxxxxx | |
| President | |
