Exhibit 10.14


 


HLP revisions 10/6/05 to
PHK Draft of 10/5/05


 


SECURITIES PURCHASE AGREEMENT


THIS SECURITIES PURCHASE AGREEMENT, dated as of                                        , 2005
(this “Agreement”), is by and between Newkirk Realty Trust, Inc., a
Maryland corporation (the “Company”) and First Union Real Estate Equity
and Mortgage Investments, an Ohio business trust (the “Investor”).


RECITALS:


                WHEREAS, the
Company has filed a registration statement on Form S-11 (as the same may be
amended from time to time, the “Registration Statement”) with the Securities
and Exchange Commission (the “Commission”) pursuant to which the Company is
making an initial public offering of its common stock, par value $0.01 per
share (the “Common Stock”);


 


                WHEREAS, the
Company and the Investor are executing and delivering this Agreement in
reliance upon the exemptions from registration provided by Regulation D (“Regulation
D”) promulgated by the Commission under the Securities Act of 1933, as amended
(the “Securities Act”), and/or Section 4(2) of the Securities Act; and


 


                WHEREAS, the
Investor wishes to purchase, and the Company wishes to issue and sell, shares of
Common Stock having a value of $50,000,000, based on a purchase price per share
equal to the initial public offering price of the Common Stock sold to the
public pursuant to the Registration Statement, upon the terms and conditions of
this Agreement;


 


NOW, THEREFORE, in consideration of the foregoing and
of the respective covenants and undertakings hereunder and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, intending to be legally bound, the parties hereto do hereby agree
as follows:


ARTICLE I

DEFINITIONS


Section 1.01.          Definitions.  As used in this Agreement, the following
terms have the meanings set forth below.


“Acquisition Agreement” shall mean that certain
Acquisition Agreement, dated of even date herewith, between the Company and the
Investor with respect to the assignment by the Investor to the Company of
certain of Investor’s rights under the Exclusivity Services Agreement, dated as
of December 31, 2003, between the Investor and Michael Ashner.


“Affiliate” shall mean (a) with respect to an
individual, any member of such individual’s family residing in the same
household; (b) with respect to an entity: (i) any executive officer, director,
partner or Person that owns ten percent (10%) or more of the outstanding
beneficial  interest of or in such
entity, or (ii) any brother, sister, brother-in-law, sister-in-law, lineal
descendant or ancestor of any executive officer, director, partner or Person
that owns ten percent (10%) or more of the outstanding beneficial  interest of or in such entity; and (c) with
respect to a Person, any Person which directly or indirectly, through one or
more intermediaries, controls, is


 





















 


controlled by, or is
under common control with such Person or entity; provided, however, that for
purposes of the definition of “Affiliate,” no Investor shall be deemed an “Affiliate”
of the Company.


“Agreement” shall have the meaning set forth in
the preamble.


“Basket” shall have the meaning set forth in
Section 9.03.


“Business Day” shall mean any day other than
(i) a Saturday, (ii) a Sunday or (iii) any other day on which banks in the City
of New York are authorized or required to close.


“By-Laws” shall mean, when used with
respect to a specified Person, the by-laws of a Person, as the same may
be amended from time to time.


“Capital Stock” shall mean, with respect to any
Person, any and all shares, shares of beneficial interest, interests,
participations, rights in or other equivalents (however designated and whether
voting or non-voting) of such Person’s capital stock or any form of membership,
ownership or participation  interests, as
applicable, including partnership interests, whether now outstanding or
hereafter issued and any and all securities, debt instruments, rights, warrants
or options exercisable or exchangeable for or convertible into such capital
stock.


“Closing” shall have the meaning set forth in
Section 2.02(a).


“Closing Date” shall have the meaning set forth
in Section 2.02(a).


“Commission Filings” shall have the meaning set
forth in Section 3.08.


“Common Stock” shall mean the common shares, $0.01
par value per share, of the Company.


“Company” shall have the meaning set forth in
the preamble.


“Company Subsidiaries” and “Company
Subsidiary” shall mean all of the subsidiaries of the Company as set forth
on Exhibit 21 of the Registration Statement.


“Consents” shall mean all governmental and
third party consents, approvals, authorizations, qualifications and waivers
necessary to be received by a Person for the consummation of the transaction
contemplated by the Agreement.


“Contract” shall mean any legally binding
contract, agreement, mortgage, deed of trust, bond, loan, indenture, lease,
license, note, option, warrant, right, instrument, commitment or other similar
document, arrangement or agreement, whether written or oral.


“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.


“GAAP” shall mean generally accepted accounting
principles applied on a consistent basis as used in the United States of
America.


 


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“Governmental Body” shall mean any government
or governmental or quasi-governmental authority including, without
limitation, any federal, state, territorial, county, municipal or other
governmental or quasi-governmental agency, board, branch, bureau,
commission, court, arbitral body (public or private), department or other
instrumentality or political unit or subdivision, whether located in the United
States or abroad, the National Association of Securities Dealers, Inc., the New
York Stock Exchange, the Nasdaq National Market, the Nasdaq SmallCap Market or
the American Stock Exchange.


“Indemnitee” shall have the meaning set forth
in Section 9.01.


“Indemnitor” shall have the meaning set forth
in Section 9.01.


“Investor” shall have the meaning set forth in
the preamble.


“Law” shall mean any treaty, statute,
ordinance, code, rule, regulation, Order or other legal requirement enacted,
adopted, promulgated, applied or followed by any Governmental Body.


“Legal Proceeding” shall mean any judicial,
administrative or arbitral actions, suits, proceedings (public or private) or
governmental proceedings.


“Legend” shall mean the Legend set forth in
Section 4.02(e).


“Lien” shall mean any mortgage, pledge, lien
(statutory or otherwise), security interest, hypothecation, conditional sale
agreement, encumbrance or similar restriction or agreement.


“Lock-up Agreement” shall mean an agreement in
substantially the form of Annex C hereto pursuant to which the Investor agrees
that its right to sell the Common Stock to be acquired by it hereunder and
pursuant to the Assignment Agreement shall be subject to restriction.


“Loss” shall have the meaning set forth in
Section 9.01.


“Material Adverse Effect” shall mean any event,
condition or contingency that has had, or is reasonably likely to have, a
material adverse effect on (i) the assets, business, condition (financial or
otherwise), results of operations, stockholders’ equity, properties or
prospects of the Company, the Operating Partnership, Newkirk REIT Advisor LLC,
a Delaware limited liability company (the “Manager”) and the Company
Subsidiaries, taken as a whole; (ii) the long-term debt or capital stock
of the Company, the Operating Partnership, the Manager or any Company
Subsidiary; or (iii) the offering contemplated by the Registration Statement or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement or the Prospectus.


“Notice” shall have the meaning set forth in
Section 9.02(a).


“NYSE” shall mean the New York Stock Exchange.


 


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“Offering” shall mean the offering
and sale of the Shares contemplated by the Registration Statement and
Prospectus that shall result in a minimum of gross proceeds of $___ million] to
the Company.


“Operating Partnership” shall mean The Newkirk
Master Limited Partnership, a Delaware limited partnership.


“Order” shall mean any order, injunction,
judgment, decree, ruling, writ, assessment or arbitration award.


“Ownership Waiver” shall have the meaning set
forth in Section 5.03.


“Person” shall mean any individual,
corporation, partnership, firm, limited liability company, joint venture,
trust, association, unincorporated organization, group, joint-stock
company, Governmental Body or other entity.


“Prospectus” shall mean the prospectus, in the
form in which it is to be filed with the SEC pursuant to Rule 424(b), or, if
the prospectus is not to be filed with the SEC pursuant to Rule 424(b), the
prospectus in the form included as part of the Registration Statement at the
time the Registration Statement becomes effective.


“Purchase Price” shall have the meaning set
forth in Section 2.01.


“Qualified Institutional Buyer” shall mean a
Person that is a “qualified institutional buyer” within the definition
contained in Rule 144A under the Securities Act.


“Registration Rights Agreement” shall mean that
certain Registration Rights Agreement, dated of even date herewith, between the
Company and the Investor.


“Registration Statement” shall have the meaning
set forth in the Recitals.


“SEC” shall mean the U.S. Securities and
Exchange Commission.


“Securities Act” shall mean the Securities Act
of 1933, as amended, and the rules and regulations of the SEC promulgated
thereunder.


“Shares” shall mean the shares of Common Stock
purchased by the Investor pursuant to the terms hereof.


“Subsidiary” shall mean, as to any Person, any
other Person more than 50% of the shares of the voting stock, voting interests,
membership interests or partnership interests of which are owned or controlled,
or the ability to select or elect more than 50% of the directors or similar managers
is held, directly or indirectly, by such first Person or one or more of its
Subsidiaries or by such first Person and one or more of its Subsidiaries.


Section 1.02.          Rules of Construction.  Unless the context otherwise requires:


 


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(a)           an
accounting term defined by GAAP that is not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;


(b)           “or”
is not exclusive;


(c)           words
in the singular include the plural, and words in the plural include the
singular;


(d)           the
words “include” and “including” shall be deemed to mean “include, without
limitation,” and “including, without limitation”;


(e)           “herein,”
“hereof,” “hereto,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular article, section, paragraph or
clause where such terms may appear;


(f)            references
to sections mean references to such section in this Agreement, unless stated
otherwise; and


(g)           the
use of any gender shall be applicable to all genders.


ARTICLE II

ISSUANCE, SALE AND PURCHASE OF THE SHARES.


Section 2.01.          Sale and Purchase of the Shares.  Upon the terms and subject to the conditions
of this Agreement, the Company will sell to the Investor, and the Investor will
purchase from the Company, shares of its Common Stock having a value of
$50,000,000, based on a purchase price per share equal to the initial public
offering price of the Common Stock sold to the public pursuant to the Registration
Statement for a purchase price of $50,000,000 (the “Purchase Price”).


Section 2.02.                       Closing.


(a)           Subject
to the satisfaction or waiver of the conditions set forth in this Agreement,
the closing of the transaction contemplated by Section 2.01 (the “Closing”)
shall take place simultaneously with the closing of the Company’s initial
public offering, or at such other time as may be mutually agreed upon by the Investor
and the Company (the “Closing Date”). 
The Closing shall occur on the Closing Date at the offices of Katten
Muchin Rosenman, 575 Madison Avenue, New York, New York.


(b)           At
the Closing: (i) the Company will deliver to the Investor (x) a certificate for
the Shares registered in the name of the Investor and (y) legal opinions of
counsel to the Company addressed to the Investor, satisfactory to counsel to
the Investor (the “Company Counsel Opinions”); (ii) the Investor, in full
payment for the Shares, will deliver to the Company the Purchase Price in
immediately available funds, by wire transfer to such account as the Company
shall specify, and (iii) each party shall take or cause to happen such other
actions, and shall execute and deliver such other instruments or documents, as
shall be required under Article VII.


 


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Section 2.03.        Use of Proceeds.  The Company shall use the proceeds from the
sale of the Shares for the purposes set forth in the Registration Statement.


ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY


The Company represents and warrants to the Investor as
follows:


Section 3.01.        Organization and Good Standing.  Each of the Company, the Operating
Partnership and the Subsidiaries has been duly organized and validly exists as
a corporation, partnership, limited partnership or limited liability company in
good standing under the laws of its jurisdiction of organization.  Each of the Company, the Operating
Partnership and the Company Subsidiaries has all requisite power and authority
to carry on its business as it is currently being conducted and as described in
the Prospectus, and to own, lease and operate its respective properties.  Each of the Company, the Operating
Partnership and the Company Subsidiaries is duly qualified to do business and
is in good standing as a foreign corporation, partnership, limited partnership
or limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures
to be so qualified or in good standing which (individually and in the
aggregate) could not reasonably be expected to have a Material Adverse
Effect.  The Company has heretofore
delivered or made available to the Investor complete and correct copies of the
Articles of Incorporation of the Company, as amended to date (the “Articles of
Incorporation”).


Section 3.02.        Authority; Binding Effect. The
Company has the full right, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus.  This Agreement and the
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus have been duly and validly authorized by the Company.  This
Agreement has been duly and validly executed and delivered by the Company.
This Agreement constitutes the legal, valid and binding obligation of the Company,
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


Section 3.03.        Organization and Good Standing of
Company Subsidiaries.  The Company Subsidiaries
constitute all of the Subsidiaries of the Company and the Operating Partnership.  Each of the Company, the Operating
Partnership and the Company Subsidiaries has all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses, filings and
permits of, with and from all judicial, regulatory and other legal or
governmental agencies and bodies and all third parties, foreign and domestic
(collectively, the “Consents”), to own, lease and operate its properties and
conduct its business as it is now being conducted and as disclosed in the
Registration Statement and the Prospectus except where the failure to obtain
such consents would not have a Material Adverse Effect, and each such Consent
is valid and in full force and effect, and none of the Company, the Operating
Partnership nor any Company Subsidiary has received notice of any investigation
or proceedings which results in or, if decided adversely to the Company, the
Operating Partnership or any Company Subsidiary, could reasonably be expected


 


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to result in, the
revocation of, or imposition of a materially burdensome restriction on, any
Consent.  Each of the Company, the
Operating Partnership and the Company Subsidiaries is in compliance with all
applicable laws, rules, regulations, ordinances, directives, judgments, decrees
and orders, foreign and domestic, except where failure to be in compliance
could not reasonably be expected to have a Material Adverse Effect.  No Consent contains a materially burdensome
restriction not adequately disclosed in the Registration Statement and the Prospectus.


Section 3.04.        Capitalization.  The capitalization table set forth in the
Registration Statement and Prospectus accurately sets forth as of the date
indicated therein, (i) the authorized capitalization of the Company, the number
of shares of each class issued and outstanding and the number of shares
reserved for issuance in connection with the Company’s stock option plans, and
(ii) all options, warrants, convertible securities, rights to subscribe to,
calls, contracts, undertakings, arrangements and commitments to issue which may
result in the issuance of stock of the Company. 
All of the issued and outstanding shares of the Company’s Capital Stock
have been duly and validly authorized and issued and are fully paid and
non-assessable and are not subject to any preemptive rights.  No securities of the Company are entitled to
preemptive or similar rights, and no person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate
in the transaction contemplated by this Agreement.  All of the issued partnership interests,
shares of capital stock of or other ownership interests in the Operating
Partnership and in each Company Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and (except as
otherwise set forth in the Prospectus) at the Closing will be owned directly or
indirectly by the Company (in the case of the Operating Partnership) or by the
Operating Partnership or a Company Subsidiary, free and clear of any Lien, charge, mortgage, pledge, security
interest, claim, equity, trust or other encumbrance, preferential arrangement,
defect or restriction of any kind whatsoever.


Section 3.05.        No Violations; Consents.   Neither
the execution, delivery or performance by the Company of this Agreement nor the
consummation of the transaction contemplated hereby, will (a) conflict with, or
result in the breach of, any provision of the organizational documents of the
Company, the Operating Partnership or any Company Subsidiary, (b) conflict
with, violate, result in the breach or termination of, or constitute a default
or give rise to any right of termination, amendment, cancellation or
acceleration or right to increase the obligations or otherwise modify the terms
thereof under any Contract or Order to which the Company, the Operating
Partnership or any Company Subsidiary is a party or by which the Company or any
Company Subsidiary or any of the properties or assets of the Company, the
Operating Partnership or any Company Subsidiary is bound, (c) constitute a
violation of any Law applicable to the Company, the Operating Partnership or
any Company Subsidiary; or (d) result in the creation of any Lien upon the
properties or assets of the Company, the Operating Partnership or any Company
Subsidiary.  Except for the approval of
the NYSE referred to in Section 6.01(c) and the declaration by the SEC of the
effectiveness of the Registration Statement, no Consent is required on the part
of the Company, the Operating Partnership or the Company Subsidiaries in
connection with the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby, including the issuance,
sale and deliver of the Shares to be issued, sold and delivered hereunder.


Section 3.06.        Listing.  The Company has applied to have its shares of
Common Stock listed on the NYSE.


 


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Section 3.07.        Financial Statements.  The pro forma financial statements, financial
statement schedules and pro forma data set forth in the Registration Statement and
Prospectus accurately reflect the books and records of the Company and the
Operating Partnership and present fairly, in all material respects, the
financial position of the Company and the Operating Partnership and the Company
Subsidiaries and the results of their operations and their cash flows for the
period and date covered thereby, in conformity with GAAP, except for changes
resulting from year-end adjustments (none of which will be material in
amount).  The assumptions used in
preparing the pro forma and financial information included in the Registration
Statement and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein.


Section 3.08.      Commission Filings.  The Operating Partnership has filed all
reports, registration statements, proxy statements and other materials,
together with any amendments required to be made with respect thereto, that
were required to be filed with the SEC under the Securities Act or the Exchange
Act from and after January 1, 2002 (all such reports and statements are
collectively referred to herein as the “Commission Filings”).  As of their respective dates, the Commission
Filings, including the financial statements contained therein, complied in all
material respects with all of the statutes and published rules and regulations
enforced or promulgated by the regulatory authority with which the Commission
Filings were filed, and, except to the extent the information in any Commission
Filing has been revised or superseded by a later filed Commission Filing, did
not and do not as of the date hereof contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.  The financial statements of the Operating
Partnership included in the Commission Filings comply in all material respects
with applicable accounting requirements and the rules and regulations of the
SEC with respect thereto as in effect at the time of filing.


Section 3.09.      Absence of Certain Developments.  Except as specifically disclosed in the Commission
Filings, since December 31, 2004 and as of the date hereof no event or series
of events has occurred which could reasonably have a Material Adverse Effect.


Section 3.10.      Litigation.  There are no Legal Proceedings pending or, to
the knowledge of the Company, threatened, that question the validity of this
Agreement or the transaction contemplated hereby or any action taken or to be
taken by the Company, the Operating Partnership or any Company Subsidiary in
connection with the consummation of the transaction contemplated hereby.  There are no material Legal Proceedings
pending or, to the knowledge of the Company, threatened, against or involving
the Company, the Operating Partnership or any Company Subsidiary or any of
their respective properties or assets, at Law or in equity which in the
aggregate could reasonably have a Material Adverse Effect.  There is no outstanding or, to the knowledge
of the Company, threatened, Order of any Governmental Body against the Company,
the Operating Partnership or any Company Subsidiary or any of their respective properties
or assets, which Order could reasonably have a Material Adverse Effect.


Section 3.11.      Compliance with Laws.  The Company, the Operating Partnership and
the Company Subsidiaries are in compliance in all material respects with all
Laws and Orders promulgated by any Governmental Body applicable to the Company,
the Operating Partnership and the Company Subsidiaries or to the conduct of the
business or operations of the Company, the


 


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Operating Partnership and the Company Subsidiaries or
the use of their properties (including any leased properties) and assets,
except where failure to comply would not have a Material Adverse Effect.  Since July 1, 2005 neither the Company,
the Operating Partnership nor any Company Subsidiary has received any written
notice of violation or alleged material violation of any such Law or Order by
any Governmental Body in any material respect that has not been resolved.  Since July 1, 2005 neither the Company,
the Operating Partnership nor any Company Subsidiary has received written
notice that it is the subject of an investigation by any Governmental Body
which has not been resolved or which could reasonably have a Material Adverse
Effect.


Section 3.12.      Financial Advisors.  Except as set forth on Schedule 3.12,
no agent, broker, investment banker, finder, financial advisor or other Person
is or will be entitled to any broker’s or finder’s fee or any other commission
or similar fee from the Company, directly or indirectly, in connection with the
transaction contemplated hereby.


Section 3.13.      Registration Statement.  At the time of the effectiveness of the
Registration Statement, the Registration Statement and Prospectus and any
amendments thereof and supplements thereto will comply in all material respects
with the applicable provisions of the Securities Act and the rules and regulations
promulgated thereunder (“Rules and Regulations”), and will not contain an
untrue statement of a material fact and will not omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein (i) in the case of the Registration Statement, not misleading and (ii)
in the case of the Prospectus or any related preliminary prospectus in light of
the circumstances under which they were made, not misleading.  The statistical, industry-related and
market-related data included in the Registration Statement and the Prospectus
are based on or derived from sources which the Company reasonably and in good
faith believes are reliable and accurate, and such data agree with the sources
from which they are derived.


Section 3.14.      No Default.  The Company is not in default in the payment
or performance of any of its Contracts, except where such default would not
have a Material Adverse Effect.


Section 3.15.      Other Registration Rights.  Except as provided in the Registration
Statement, the Company has not entered into any agreement to register its debt
or equity securities under the Securities Act.


Section 3.16.      Disclosure Controls.  The Company has established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14)
for the Company and designed such disclosure controls and procedures to ensure
that material information relating to the Company, including its subsidiaries,
is timely made known to the certifying officers by others within those
entities, particularly during the period in which the Company’s Form 10-K or
10-Q, as the case may be, is being prepared. 
The Operating Partnership’s certifying officers have evaluated the
effectiveness of the Operating Partnership’s controls and procedures as of June
30, 2005 (such date, the “Evaluation Date”). 
The Operating Partnership presented in its Form 10-Q for the quarter
ended June 30, 2005 the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. 
Since the Evaluation Date, there have been no significant changes in the
Operating Partnership’s internal controls (as such term is defined in Item
307(b) of Regulation S-K


 


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under the Exchange Act) or, to the knowledge of the
Company, in any factors that could significantly affect the Company’s or the
Operating Partnership’s internal controls.


Section 3.17       Taxes.     Since January 1, 2002, the Operating
Partnership and each Company Subsidiary has timely filed or caused to be filed
any and all material tax returns required to be filed by it under applicable
federal, state, local and foreign Law, except where the failure to failure to
do so could not reasonably be expected to have a Material Adverse Effect.  The reserves for taxes contained in the
financial statements of the Operating Partnership or carried on the books and
records of the Operating Partnership are in the aggregate adequate to cover all
tax liabilities and deferred taxes of the Operating Partnership and the Company
Subsidiaries as of the date of this Agreement, except to the extent that any
inadequacy could not in the aggregate reasonably have a Material Adverse
Effect.  Commencing with its initial
taxable year beginning on the business day prior to the Closing Date and ending
December 31, 2005, the Company will be organized in conformity with the requirements
for qualification as a real estate investment trust (a “REIT”) pursuant to
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”);
the Company’s proposed method of operation as described in the Registration
Statement and in the Prospectus will enable it to meet the requirements for
qualification and taxation as a REIT under the Code; and all statements in the
Registration Statement and the Prospectus regarding the Company’s qualification
and taxation as a REIT are true, complete and correct in all material respects.


               Section 3.18   Non-Integration.  None of the Company, the Operating
Partnership nor any of their respective affiliates has, prior to the date
hereof, made any offer or sale of any securities which could be “integrated”
for purposes of the Securities Act and the Rules and Regulations with the offer
and sale of the Shares pursuant to the Registration Statement.  Except as disclosed in the Registration
Statement and the Prospectus, none of the Company, the Operating Partnership
nor any of their respective affiliates has sold or issued any Common Stock or
other security of the Company, the Operating Partnership or any Subsidiary or
any security convertible into, or exercisable or exchangeable for, Common Stock
or any other such security during the six-month period preceding the date of
the Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act or the Rules and Regulations.


Section 3.19  Affiliations.  No relationship, direct or indirect, exists
between or among any of the Company, the Operating Partnership, the Manager or
any of their respective affiliates, on the one hand, and any director, officer,
stockholder, tenant or supplier of the Company, the Operating Partnership, the
Manager or any of their respective affiliates, on the other hand, which is
required by the Securities Act or the Rules and Regulations to be described in
the Registration Statement or the Prospectus which is not so described and
described as required. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company or the Operating Partnership to or
for the benefit of any of the officers or directors of the Company or the
Operating Partnership or any of their respective family members, except as
disclosed in the Registration Statement and the Prospectus.


Section 3.20       Investment Company.   Neither the Company nor the Operating Partnership
is and, at all times up to and including consummation of the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus,
and after giving effect to


 


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application of the net proceeds of the Offering, will
not be, subject to registration as an “investment company” under the Investment
Company Act of 1940, as amended, and is not and will not be an entity “controlled”
by an “investment company” within the meaning of such act.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR


Section 4.01.          Investor Representations.  The Investor represents and warrants to the
Company as follows:


(a)           Authorization.  The Investor is a trust organized and validly
existing under the Laws of the State of Ohio. 
The Investor has the full power and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.  The execution and delivery of this Agreement
and the consummation by the Investor of the transaction contemplated hereby
have been duly authorized by all necessary action on the part of the Investor.  This Agreement has been duly executed and
delivered by the Investor and constitutes the legal, valid and binding
obligations of the Investor, enforceable in accordance with its respective
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.


(b)           Investment
Representations.  The Investor is a
Qualified Institutional Buyer and is acquiring the Shares for the Investor’s
own account, for investment, and not with a view to, or for sale in connection
with, the distribution thereof or of any interest therein.  The Investor understands that the Shares have
not been registered under the Securities Act by reason of its issuance in a
transaction exempt from the registration requirements of the Securities Act
pursuant to the exemption provided in Section 4(2) and/or Regulation D
promulgated under the Securities Act, and that the Shares may not be sold
or otherwise disposed of unless registered under the Securities Act or exempted
from such registration.


(c)           Investor’s
Acknowledgment. The Investor has had the opportunity, directly or through
its representatives, to ask questions of and receive answers from Persons
acting on behalf of the Company concerning the transactions contemplated by
this Agreement.


(d)           Financial
Advisors.  No agent, broker,
investment banker, finder, financial advisor or other Person is or will be
entitled to any broker’s or finder’s fee or any other commission or similar fee
from the Investor, directly or indirectly, in connection with the transaction
contemplated by this Agreement.


(e)           Legend.


(i)            The
certificate evidencing the Shares will bear a legend (the “Legend”)
substantially similar to the following:


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE


 


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NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.


THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON TRANSFER AS PROVIDED FOR IN THAT CERTAIN LOCK-UP
AGREEMENT, DATED ____________, 2005, BETWEEN NEWKIRK REALTY TRUST, INC. AND
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS.


THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE
PURPOSE OF NEWKIRK REALTY TRUST, INC.’S MAINTENANCE OF ITS STATUS AS A REAL
ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.  SUCH RESTRICTIONS ARE SET FORTH
IN NEWKIRK REALTY TRUST, INC.’S ARTICLES OF ORGANIZATION, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON
TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO THE HOLDER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE ON REQUEST AND WITHOUT CHARGE.”


(ii)           The
first paragraph of the legend endorsed on the certificate pursuant to Section
4.01 (e) hereof shall be removed and the Company shall issue a certificate
without such portion of the legend to the holder thereof at such time as the
securities evidenced thereby cease to be restricted securities upon the
earliest to occur of (i) a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) the securities shall have been sold to the public pursuant to
Rule 144 (or any successor provision) under the Securities Act, and (iii) the
expiration of the restrictions on transfers under the Lock-up Agreement
provided that such securities may then be sold by the holder without
restriction or registration under Rule 144(k) under the Securities Act (or any
successor provision).


(f)            Ownership
and Transfer Limitations.  The
Investor has received a copy of the Articles of Incorporation of the Company,
and understands, and will be in compliance with, the restrictions on transfer
and ownership of the Company’s Capital Stock included therein at the Closing
and at all times thereafter.


 


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ARTICLE V

COVENANTS OF THE COMPANY


The Company covenants and
agrees as follows:


Section 5.01.          Maintain Listing.  The Company will use commercially reasonable
efforts to (x) maintain the listing and trading of its Common Stock on the
NYSE, for so long as the Company qualifies for such listing under the rules and
regulations of the NYSE and (y) comply in all material respects with the
Company’s reporting, filing, and other obligations, under the rules and
regulations of the NYSE.  In the event
that the Common Stock is no longer eligible for listing and trading on the
NYSE, the Company will use commercially reasonable efforts to secure the
listing or quotation of the Common Stock on the Nasdaq National Market, the
Nasdaq SmallCap Market or the American Stock Exchange (if such listing is
permitted by the bylaws, rules or regulations of any of the foregoing) and to
comply in all material respects with the Company’s reporting, filing and other
obligations under the bylaws or rules of such exchanges or the National Association
of Securities Dealers, Inc., as applicable. 
The Company will promptly provide to the Investor copies of any notices
it receives from the NYSE and any other exchange or quotation system on which
the Common Stock is then listed regarding the continued eligibility of the
Common Stock for listing on such exchanges or quotation systems.


Section 5.02.          Secure Listing.  Following the execution of this Agreement,
the Company shall promptly file with the NYSE an application to list the Shares
on the NYSE.


Section 5.03    Exemption from
Ownership Limitation.  The Company
will grant the Investor an exemption (the “Ownership Waiver”) from the
ownership limitation contained in the Company’s Articles of Incorporation to
permit ownership by it of Common Stock to the extent that such ownership does
not exceed the greater of (i) 17.5% of the outstanding Common Stock on a fully
diluted basis, and (ii) the percentage of Common Stock owned by Investor
immediately following the consummation of the transactions hereunder, assuming in
either case the redemption of all interests in the Operating Partnership that
are redeemable in exchange for shares of Common Stock, whether or not such
interests are then redeemable.


Section 5.04    REIT
Certifications.  The Company shall
deliver to the Investor, at such time as may reasonably be requested by the
Investor (but in any event no less frequently than on a quarterly basis), a
certificate or certificates signed by an authorized officer of the Company to
the effect that the Company has complied with and is then in compliance withthe
asset and income tests set forth in Section 856 of the Code, and that such
officer anticipates that the Company will continue to comply with such
requirements.  In addition, the Company
shall cooperate with the Investor, including, without limitation, by providing
information and documents in its control relating to the income and assets of
the Company at such times as may reasonably be requested by the Investor, even
if the Investor at such time no longer holds an interest in the Company, in
addressing issues raised by any taxing authority in any audit or similar
proceeding that relates to or arises out of the Investor’s investment in the
Company.  The Investor shall reimburse
the Company for any increased out of pocket costs attributable to providing the
certifications and information described in this paragraph to the
Investor.  The Company shall give the
Investor at least sixty (60) days advance notice of any determination by


 


13





















 


the
Company to elect to cease to be treated as a REIT for federal income tax
purposes and will not cease to qualify as a REIT for any period prior to the
end of such 60-day notice period.


ARTICLE
VI

ACTIONS PRIOR TO CLOSING


Section 6.01.        Consent.  Each of the Company and the Investor will use
its reasonable best efforts and shall fully cooperate with each other to make
promptly all registrations, filings and applications, give all notices and
obtain all Consents in connection with the transaction contemplated hereby.


Section 6.02.        Publicity.  The parties agree not to issue any
announcement, press release, public statement or other information to the press
or any third party with respect to this Agreement or the transaction contemplated
hereby without obtaining the prior written approval of the other party hereto
(which approval shall not be unreasonably withheld); provided, however, that
nothing contained herein shall prevent either party, at any time, from
furnishing any required information to any Governmental Body or from issuing
any announcement, press release, public statement or other information to the
press or any third party with respect to this Agreement or the transaction contemplated
hereby if required by Law, although, the parties agree to consult with each
other as to the content of any release so required and consider in good faith
the comments of the other thereon.


ARTICLE VII

CONDITIONS TO CLOSING


Section 7.01.        Conditions to Obligations of the
Investor.  The obligation of the
Investor to consummate the transaction contemplated hereby shall be subject to
the fulfillment on or prior to the Closing Date of the following conditions:


(a)           No Governmental Order or Other Proceeding or Litigation.  No Order of any Governmental Body shall be in
effect that restrains or prohibits the issuance of the Shares.


(b)           Stock Certificates. 
The Company shall have delivered to the Investor (i) a certificate
representing the Shares, duly registered in the name of the Investor, which
Shares shall have been duly and validly authorized and issued and, assuming
delivery of the Purchase Price, fully paid and non-assessable, and (ii) the
Company Counsel Opinions, which opinions shall include opinions acceptable to
Investor with respect to the Operating Partnership and the Joinder Agreement as
well as to the Company as herein provided.


(c)           Shares.   The Shares shall be issued in compliance with all applicable state, federal and foreign
securities laws and will not have been issued in violation of or subject
to any preemptive or similar right that does or will entitle any person to
acquire any equity security from the Company, the Operating Partnership or any
Subsidiary upon issuance or sale of the Shares and  the Common Stock and the Shares shall conform
to the descriptions thereof contained in the Registration Statement and the
Prospectus.


(d)           NYSE Listing.  The Shares
have been duly listed on the NYSE, pending notice of issuance and the Company
shall not be in violation of the listing requirements of the


 


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NYSE in any material respect nor shall the Company
have received any written notice from the NYSE that the Common Stock is to be
delisted by the NYSE.


(e)           Representations and Warranties.  The representations and warranties of the
Company contained herein shall be true and correct in all material respects as
of the date when made and as of the Closing Date as though made on and as of
such date (except for representations and warranties that speak of a specific
date, which need only be true and correct as of such date).


(f)            Absence of Material Developments.  Since June 30, 2005, no event or
series of events shall have occurred that reasonably would be expected to have
a Material Adverse Effect.


(g)           Performance.  The Company shall have performed, satisfied
and complied in all material respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by it at or prior to the Closing Date.


(h)           No New Information.  The Investor shall not have become aware of
any information or other matter with respect to legal matters affecting the
Company that is inconsistent with the financial and other information disclosed
to the Investor prior to the date hereof including the disclosures in the Registration
Statement as filed with the SEC on the date hereof, in a manner that
constitutes or would reasonably be expected to have a Material Adverse Effect.


(i)            Effectiveness of
Registration Statement.  The
Registration Statement shall have been declared effective by the Commission and
the  Offering shall have been consummated
and the Registration Statement and all amendments thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus and all
amendments or supplements thereto, or modifications thereof, if any, shall not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading.


(j)            Officer’s Certificate.  The Investor shall have received a certificate
of an officer of the Company, dated the Closing Date, certifying on behalf of
the Company as to the fulfillment of the conditions specified in this
Section 7.01.


(k)           Acquisition Agreement.  The transactions contemplated by the Acquisition
Agreement shall have been consummated or shall be consummated simultaneously
with the Closing.


(l)            Registration Rights
Agreement.  The Registration
Rights Agreement shall have been executed and delivered by the Company.


(m)          Ownership Waiver.  The Ownership Waiver shall have been granted
by the Company.


 


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(n)       Advisory Agreement.  The Company and the Operating Partnership
shall have retained NKT Advisors LLC as its advisor pursuant to an agreement on
the terms and conditions described in the Registration Statement and such
agreement shall have been  duly and
validly authorized, executed and delivered by the Company and the Operating
Partnership and shall constitute the legal, valid and binding obligation of the
Company and the Operating Partnership, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).


(o)           Joinder by the Operating
Partnership.  The Operating
Partnership shall have executed and delivered an Agreement of Joinder, in form
and substance satisfactory to the Investor, for the purpose of joining in and
becoming a party to this Agreement, jointly and severally with the Company,
with the effect of amending this Agreement by adding the Operating Partnership
as a party, and the Operating Partnership shall therein make with the Company,
jointly and severally, all representations, warranties, covenants and
agreements made herein by the Company, and shall make the representations and
warranties set forth in Section 3.02 hereof with respect to the authority of
the Operating Partnership to enter into this Agreement and the binding effect
of this Agreement on the Operating Partnership, among others.


(o)           No Stop
Order or Suspension.  No stop
order with respect to the effectiveness of the Registration Statement shall
have been issued under the Act or proceedings initiated under Section 8(d) or
8(e) of the Act, and no order directed at or in relation to any document
incorporated by reference therein and no order preventing or suspending the use
of the Prospectus has been issued by the Commission, and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or to the
knowledge of the Company of the initiation or threatening of any proceedings
for any such purposes, has occurred.


Section 7.02.          Conditions to Obligations of the
Company.  The obligation of the
Company to consummate the transaction contemplated hereby shall be subject to
the fulfillment on or prior to the Closing Date of the following conditions:


(a)           No Governmental Order or Other Proceeding or Litigation.  No Order of any Governmental Body shall be in
effect that restrains or prohibits the issuance of the Shares.


(b)           Purchase Price.  The
Investor shall have delivered to the Company the Purchase Price.


(c)           Effectiveness of
Registration Statement.  The
Registration Statement shall have been declared effective by the Commission and
the IPO shall have been consummated.


(d)           Acquisition Agreement.  The transactions contemplated by the Acquisition
Agreement shall have been consummated or shall be consummated simultaneously
with the Closing.


(e)           Lock-up Agreement.  The Lock-up Agreement shall have been
executed and delivered by the Investor.


 


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ARTICLE VIII

SURVIVAL


Section 8.01.          Survival.  The representations and warranties and
covenants to be performed at or prior to Closing of the parties set forth in
this Agreement shall survive for a period of 12 months following the execution
and delivery of this Agreement and thereafter shall be of no further force or
effect, provided that the representations and warranties set forth in (i) Sections
3.01 (Organization), 3.02 (Authorization), and 3.04 (Capitalization) shall
survive indefinitely (or if indefinite survival is not permitted by Law, then
for the maximum period permitted by applicable Law) and (ii) 3.17 (Taxes) shall
survive for the applicable statute of limitations.  Except as set forth herein, all of the
covenants, agreements and obligations of the parties hereto shall survive the
Closing indefinitely (or if indefinite survival is not permitted by Law, then
for the maximum period permitted by applicable Law).  Anything herein to the contrary
notwithstanding, any claim for indemnification that is asserted by written
notice which notice specifies in reasonable detail the facts upon which such
claim is made within the survival period as provided in this Section 8.01 shall
survive until resolved pursuant to a final non-appealable judicial
determination or otherwise.


ARTICLE IX

INDEMNIFICATION


Section 9.01.        Generally.  Subject to the limitations and other
provisions of this Article IX, the Company covenants and agrees to indemnify,
defend and hold harmless the Investor and its directors, officers,
shareholders, employees and agents (each, an “Investor Party”) from and against
any and all Losses resulting from, incurred in connection with or arising out
of (a) any breach of any representation, warranty, agreement or covenant of the
Company contained herein, or (b) the failure of the Company to perform any of
the agreements, covenants or obligations of the Company contained herein (other
than if any such claim was a result of a breach by the Investor under this
Agreement).  Subject to the limitations
and other provisions of this Article IX, the Investor covenants and agrees to
indemnify, defend and hold harmless the Company from and against (but only to
the extent of) any and all Losses resulting from, incurred in connection with or
arising out of (but only to the extent of) (a) any breach of any
representation, warranty, covenant or agreement of the Investor contained herein,
or (b) the failure of the Investor to perform any of the agreements, covenants
or obligations of the Investor contained herein.  The term “Loss” or any similar term
shall mean any and all damages, reduction in value of the original investment
in the Shares, deficiencies, costs, claims, fines, judgments, amounts paid in
settlement, expenses of investigation, interest, penalties, assessments,
out-of-pocket expenses (including reasonable attorneys’ and auditors’ fees and
disbursements, witness fees and court costs). 
The party or parties being indemnified are referred to herein as the “Indemnitee”
and the indemnifying party is referred to herein as the “Indemnitor.”


Section 9.02.        Indemnification Procedure.


(a)           Any
party who receives notice of a potential claim that may, in the judgment of
such party, result in a Loss shall use all reasonable efforts to provide the parties
hereto notice thereof, provided that failure or delay or alleged delay in
providing such notice shall not adversely affect such party’s right to
indemnification hereunder, unless and then only to


 


17





















 


the extent that such failure or delay or alleged delay
has resulted in actual prejudice to the Indemnitor, including, without
limitation, by the expiration of a statute of limitations.  In the event that any party shall incur or
suffer any Losses in respect of which indemnification may be sought by such
party hereunder, the Indemnitee shall assert a claim for indemnification by
written notice (a “Notice”) to the Indemnitor stating the nature and
basis of such claim.  In the case of
Losses arising by reason of any third party claim, the Notice shall be given
within thirty (30) days of the filing or other written assertion of any such
claim against the Indemnitee, but the failure of the Indemnitee to give the
Notice within such time period shall not relieve the Indemnitor of any
liability that the Indemnitor may have to the Indemnitee, except to the extent
that the Indemnitor demonstrates that the defense of such action has been
materially prejudiced by the Indemnitee’s failure to timely give such Notice.


(b)           In
the case of third party claims for which indemnification is sought, the
Indemnitor shall, if necessary, retain counsel reasonably satisfactory to the
Indemnitee, and have the option (i) to conduct any proceedings or negotiations
in connection therewith, (ii) to take all other steps to settle or defend any
such claim (provided that the Indemnitor shall not settle any such claim
without the consent of the Indemnitee which consent shall not be unreasonably
withheld) and (iii) to employ counsel to contest any such claim or liability in
the name of the Indemnitee or otherwise. 
In any event, the Indemnitee shall be entitled to participate at its own
expense and by its own counsel in any proceedings relating to any third party
claim.  The Indemnitor shall, within 15
Business Days of receipt of the Notice, notify the Indemnitee of its intention
to assume the defense of such claim.  If
(i) the Indemnitor shall decline to assume the defense of any such claim, (ii)
the Indemnitor shall fail to notify the Indemnitee within 15 Business Days
after receipt of the Notice of the Indemnitor’s election to defend such claim,
(iii) the Indemnitee shall have reasonably concluded that there may be defenses
available to it which are different from or in addition to those available to
the Indemnitor (in which case the Indemnitor shall not have the right to direct
the defense of such action on behalf of the Indemnitee), or (iv) a conflict
exists between the Indemnitor and the Indemnitee which the Indemnitee has
reasonably concluded would prejudice the Indemnitor’s defense of such action,
then in each such case the Indemnitor shall not have the right to direct the
defense of such action on behalf of the Indemnitee and the Indemnitee shall, at
the sole expense of the Indemnitor, defend against such claim and (x) in the
event of a circumstance described in clause (i) and (ii), the Indemnitee may
settle such claim without the consent of the Indemnitor (and the Indemnitor may
not challenge the reasonableness of any such settlement) and (y) in the event
of a circumstance described in clause (iii) and (iv), the Indemnitee may not
settle such claim without the consent of the Indemnitor (which consent will not
be unreasonably withheld or delayed). 
The reasonable expenses of all proceedings, contests or lawsuits in
respect of such claims shall be borne and paid by the Indemnitor if the
Indemnitee is entitled to indemnification hereunder and the Indemnitor shall
pay the Indemnitee, in immediately available funds, the amount of any Losses,
within a reasonable time of the incurrence of such Losses.  Regardless of which party shall assume the
defense or negotiation of the settlement of the claim, the parties agree to
cooperate fully with one another in connection therewith.  In the event that any Losses incurred by the
Indemnitee do not involve payment by the Indemnitee of a third party claim,
then, the Indemnitor shall, within 20 days after written notice from the
Indemnitee specifying the amount of Losses, pay to the Indemnitee, in
immediately available funds, the amount of such Losses.  Anything in this Article IX to the contrary
notwithstanding, the Indemnitor shall not, without the Indemnitee’s prior
written consent, settle or compromise any claim or consent to entry of any


 


18





















 


judgment in respect thereof which imposes any future
obligation on the Indemnitee or which does not include, as an unconditional
term thereof, the giving by the claimant or plaintiff to the Indemnitee, a
release from all liability in respect of such claim.


Section 9.03.                       Limitations on Indemnification.


                Neither party shall be entitled
to be indemnified hereunder unless and until the aggregate of all Losses
incurred by such party shall exceed $50,000 (the “Basket”); provided,
however, that the Basket shall not apply to any Losses incurred by such party
with respect to any third party claim against such party for which such party
is entitled to indemnity pursuant to Section 9.01.  Notwithstanding anything to the contrary
contained herein, the liability of (i) the Company under this Article IX shall
be limited to an amount equal to the Purchase Price; and (ii) the Investor
under this Article IX shall be limited to an amount equal to the Purchase Price.


ARTICLE X

TERMINATION


Section 10.01.        Termination.  This Agreement may be terminated on or any
time prior to the Closing by the mutual written consent of each of the Investor
and the Company.


Section 10.02.  Offering of
Common Stock.  In the event that (i)
the Registration Statement has not been declared effective and the Offering
contemplated thereby has not been consummated on or before March 31, 2006, or
(ii) the gross proceeds to the Company of the Offering do not equal or exceed $____
million, the Investor shall have the right, but not the obligation, to
terminate this Agreement.


Section 10.03 
Effect Of Termination.  In the
event of the termination of this Agreement as provided in Section 10.01, all
obligations and agreements of the parties set forth in this Agreement shall
forthwith become void except for the obligations set forth in:  (i) Section 6.02 (Publicity) and (ii) Article
IX (Indemnification), and there shall be no liability or obligation on the part
of the parties hereto except as otherwise provided in this Agreement.  Notwithstanding the foregoing, the termination
of this Agreement shall not relieve either party of any liability for breach of
this Agreement prior to the date of termination.


 


ARTICLE XII


MISCELLANEOUS


Section 11.01  Notices
and Addresses.  Any notice, demand,
request, waiver, or other communication under this Agreement shall be in
writing and shall be deemed to have been duly given on the date of service, if
personally served or sent by facsimile; on the Business Day after notice is
delivered to a courier or mailed by express mail, if sent by courier delivery
service or express mail for next day delivery; and on the third day after
mailing, if mailed to the party to


 


19





















 


whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:


If to the Company:


Newkirk Realty Trust,
Inc.


Two Jericho Plaza


Wing A, Suite 111


Jericho, New York 11753


Attention:  Peter Braverman


Facsimile:   (516) 433-2777


Telephone:  (516) 822-0022


 


If to the Investor:


First Union Real Estate
Equity and Mortgage Investments


7
Bulfinch Place, Suite 500


P.O.
Box 9507


Boston,
Massachusetts  02114


Attention:  Carolyn Tiffany


Facsimile:   (617) 742-4643


Telephone:  (617) 570-4606


 


Section 11.02  Captions.  The captions in this Agreement are for
convenience of reference only and shall not be given any effect in the
interpretation of this Agreement.


Section 11.03  No
Waiver.  The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion
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.  Any waiver must be in
writing.  Any of the covenants or agreements
contained in this Agreement may be waived only by the written consent of the
Investor.


Section 11.04  Severability.  If one or more provisions of this Agreement
are held to be unenforceable under applicable Law, such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms so long as the economic or legal substance of the
transactions contemplated by this Agreement are not affected in any manner
materially adverse to any party.


Section 11.05  Exclusive
Agreement; Amendment.  This Agreement
supersedes all prior agreements among the parties with respect to its subject
matter, is intended (with the documents referred to herein) as a complete and
exclusive statement of the terms of the agreement among the parties with
respect thereto and cannot be changed or terminated except by a written
instrument executed by the party or parties against whom enforcement thereof is
sought, except that, with respect to the Investor, this Agreement may be
amended by a written instrument executed by the Investor.


 


20





















 


Section 11.06  Limitation
on Assignment; Parties in Interest.


(a)           No
assignment of this Agreement or of any rights or obligations hereunder may be
made by the Company without the prior written consent of the Investor and any
attempted assignment without the required consent shall be void.  No assignment of this Agreement or of any
rights or obligations hereunder may be made by the Investor (by operation of
Law or otherwise) except as permitted by the Lock-up Agreement.


(b)           This
Agreement shall be binding upon, and shall inure to the benefit of, and be
enforceable by, the parties and their respective successors, transferees and
assigns.


Section 11.07  Governing
Law.  This Agreement and (unless
otherwise provided) all amendments hereof and waivers and consents hereunder
shall be governed by the internal Laws of the State of New York, without regard
to the conflicts of Law principles thereof which would specify the application
of the Law of another jurisdiction.


Section 11.08  Jurisdiction.  Each of the Investor and the Company (a)
hereby irrevocably and unconditionally submits to the exclusive jurisdiction of
any state or federal court sitting in New York County, New York for the
purposes of any suit, action or other proceeding arising out of this Agreement
or the subject matter hereof brought by the Company, or the Investor and (b)
hereby waives and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that the suit,
action or proceeding is brought in an inconvenient forum, that the venue of the
suit, action or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court.


Section 11.09  No
Third Party Beneficiary.  The terms
and provisions of this Agreement are intended solely for the benefit of each
party hereto and their respective successors or permitted assigns, and it is
not the intention of the parties to confer third-party beneficiary rights upon
any other Person other than (i) any Person entitled to indemnity under Article IX
and (ii) with respect to the representations and warranties set forth in
Articles III and IV, any placement agent identified on Schedule 3.12 hereof.


Section 11.10  Injunctive
Relief.  In the event that any party
threatens to take any action prohibited by this Agreement, the parties agree
that there may not be an adequate remedy at law.  Accordingly, in such an event, a party may
seek and obtain preliminary and permanent injunctive relief (without the
necessity of posting any bond or undertaking). 
Such remedies shall, however, be cumulative and not exclusive and shall
be in addition to any other remedies which any party may have under this Agreement
or otherwise.


Section 11.11  Counterparts.  This Agreement may be executed via facsimile
and in any number of counterparts, each of which shall be deemed to be an
original instrument and all of which together shall constitute one and the same
instrument.


Section 11.12  Actions
Simultaneous.  All actions to be
taken and all documents to be executed and delivered by all parties at the
Closing shall be deemed to have been taken and executed and delivered
simultaneously and no actions shall be deemed to have been taken nor


 


21





















 


shall
any documents be deemed to have been executed and delivered until all actions
have been taken and all documents have been executed and delivered.


[Signature Pages Follow]


 


22





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.


	
   

  	
  NEWKIRK REALTY TRUST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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  FIRST UNION REAL ESTATE EQUITY
  AND MORTGAGE INVESTMENTS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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