AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED ADVISORY AGREEMENT
AMENDMENT
NO. 2 TO SECOND AMENDED AND RESTATED ADVISORY AGREEMENT
THIS AMENDMENT NO. 2 TO SECOND
AMENDED AND RESTATATED ADVISORY AGREEMENT, made as of January 26, 2010,
between WINTHROP REALTY TRUST, an Ohio business
trust corporation (the “Trust”), WRT REALTY, L.P., a Delaware
limited partnership (the “Operating Partnership”, and together with the Trust,
the “Company”), and FUR
ADVISORS LLC (the “Advisor”).
WHEREAS, the Trust, the
Operating Partnership and the Advisor are party to that certain Second Amended
and Restated Advisory Agreement dated March 5, 2009, as amended by Amendment No.
1 thereto dated as of May 11, 2009 (the “Advisory Agreement”) pursuant to which
the Advisor was retained to provide advisory services to the
Company;
WHEREAS, the Trust and the
Advisor desire to amend the Advisory Agreement as hereinafter
provided;
NOW, THEREFORE, in
consideration of the premises and of the mutual agreements herein set forth, the
parties hereto agree as follows:
1. Capitalized
Terms. Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed thereto in the Advisory Agreement.
2. Amendments to Advisory
Agreement. The Advisory Agreement is hereby amended by
deleting the definition of “Issuance Price” from Section 4.1 thereof in its
entirety and inserting the following in lieu thereof:
“Issuance Price” – means, the issuance
price of the Equity Security (other than Common Shares issued in connection with
the conversion of the Series B-1 Cumulative Convertible Redeemable Preferred
Shares for which no value will be attributed) after deducting any underwriting
discounts and commissions and other expenses and costs relating to the
issuance.
3. Effectiveness of
Amendment. This Amendment shall be effective as of January 1,
2010; provided, however, that to the extent the Base Fee determined after giving
effect to the Amendment exceeds the Base Fee prior to giving effect to the
amendment, in each case excluding any issuances of Equity Securities from and
after January 1, 2010, the Company shall only be required to pay (i) 4% of such
increase with respect to the payment required for the first quarter of 2010,
(ii) 10% of such increase with respect to the payment required for the second
quarter of 2010, (iii) 17% of such increase with respect to the payment required
for the third quarter of 2010, (iv) 23% of such increase with respect to the
payment required for the fourth quarter of 2010; and (v) 100% of such increase
commencing with the payment required for the first quarter of 2011 and
thereafter.
4. Miscellaneous. (a) Except
as modified hereby, the Advisory Agreement remains in full force and effect and
the provisions thereof are hereby ratified and confirmed.
(b) All
references in the Advisory Agreement to “this Agreement”, “hereunder”, “hereto”
or similar references, and all references in all other documents to the Advisory
Agreement shall hereinafter be deemed references to the Advisory Agreement as
amended hereby.
(c) This
Amendment may be executed in one or more counterparts, all of which together
shall for all purposes constitute one amendment, binding on all parties hereto,
notwithstanding that the parties have not signed the same
counterparts.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
WINTHROP REALTY TRUST | |||
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By:
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/s/ Xxxxxxx Xxxxxxx | |
Xxxxxxx
Xxxxxxx
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President
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WRT REALTY, L.P. | ||||
By: | Winthrop Realty Trust | |||
General Partner | ||||
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By:
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/s/ Xxxxxxx Xxxxxxx | ||
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Xxxxxxx
Xxxxxxx
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President
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FUR ADVISORS LLC | |||||
By: | FUR Holdings LLC | ||||
Member | |||||
By: | WEM-FUR Investors LLC | ||||
Managing Member | |||||
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By:
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/s/ Xxxxxxx X. Xxxxxx | |||
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Xxxxxxx
X. Xxxxxx
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Managing
Member
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