BOARD OBSERVER AGREEMENT
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 Joseph Moinian (Mr. Moinian).
WHEREAS, the Company is appointing Mr. Moinian to attend, in a non-voting observer capacity, meetings of the board of managers of the Company (the Board); and
WHEREAS, in connection with Mr. Moinians 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 Mr. Moinian 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 Mr. Moinians earlier death or resignation. Mr. Moinian 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, Mr. Moinians presence shall not be necessary to establish a quorum at any meeting of the Board.
(b) For so long as Mr. Moinian 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 Companys managers in their roles as members of the Board.
(c) Notwithstanding the foregoing, the Company may withhold any information and exclude Mr. Moinian 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 Mr. Moinian 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 Companys 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 Companys units.