Exhibit
10.12


 


 


UNIT
PURCHASE AGREEMENT


by and
between


THE
NEWKIRK MASTER LIMITED PARTNERSHIP,


and


NEWKIRK
REALTY TRUST, INC.


 


 


 





















 


UNIT
PURCHASE AGREEMENT


 


UNIT
PURCHASE AGREEMENT,
dated as of __________ __, 2005 (this “Agreement”), by
and between THE NEWKIRK MASTER LIMITED PARTNERSHIP,
a Delaware limited partnership (“MLP” or the “Partnership”) and NEWKIRK REALTY TRUST, INC.,
a Maryland corporation (the “Purchaser”).


RECITALS


WHEREAS, the Purchaser has filed a Registration
Statement on Form S-11 (the “Registration Statement”)
relating to its initial public offering of common stock (the “Offering”);


WHEREAS, in connection with the Offering,
concurrently with  the Offering, (i) the
Purchaser will purchase units of limited partnership interest in MLP, including
newly-issued units as provided for herein; (ii) MLP will amend and restate its
Agreement of Limited Partnership to provide for the operation of MLP and
Purchaser in an umbrella real estate investment trust (UPREIT) structure; (iii)
Purchaser will be appointed as the successor general partner of MLP; and (iv)
MLP will effect a unit-split (the “Unit Split”)
such that, each unit of limited partnership in MLP (each, a “Unit”) will have the same value with respect to the assets
of MLP as each share of Purchaser’s common stock and  each Unit outstanding at the time of the Unit
Split will be treated consistently with one another in such Unit Split.


In consideration
of the mutual covenants and agreements set forth herein and for good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:


ARTICLE I

DEFINITIONS


Section
1.01.        Definitions. 
As used in this Agreement, and unless the context requires a different
meaning, the following terms have the meanings indicated:


“Closing” shall have the meaning
specified in Section 2.03.


“Closing Date” shall have the meaning
specified in Section 2.03.


“Commission” means the United States
Securities and Exchange Commission.


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


“Contract” means 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.


“Delaware LLC Act” has the meaning
specified in Section 3.02(b).


 


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“Delaware LP Act” has the meaning
specified in Section 3.02(a).


“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.


“Governmental Authority” means, with
respect to a particular Person, the country, state, county, city and political
subdivisions in which such Person or such Person’s Property is located or which
exercises valid jurisdiction over any such Person or such Person’s Property,
and any court, agency, department, commission, board, bureau or instrumentality
of any of them and any monetary authority which exercises valid jurisdiction
over any such Person or such Person’s Property. Unless otherwise specified, all
references to Governmental Authority herein with respect to MLP means a
Governmental Authority having jurisdiction over MLP, its Subsidiaries or any of
their respective Properties.


“Law” means any federal, state, local
or foreign order, writ, injunction, judgment, settlement, award, decree,
statute, law, rule or regulation.


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


“Lien” means any interest in Property
securing an obligation owed to, or a claim by, a Person other than the owner of
the Property, whether such interest is based on the common law, statute or
contract, and whether such obligation or claim is fixed or contingent, and
including but not limited to the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes. For the
purpose of this Agreement, a Person shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale
agreement, or leases under a financing lease or other arrangement pursuant to
which title to the Property has been retained by or vested in some other Person
in a transaction intended to create a financing.


“MLP” has the meaning specified in
the introductory paragraph.


“MLP Material Adverse Effect” has the
meaning specified in Section 3.01.


“Offering” has the meaning specified
in the Recitals.


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


“Partnership Agreement” means the
Agreement of Limited Partnership of MLP, as the same may be amended, restated
or supplemented from time to time, including pursuant to the Amended and
Restated Agreement of Limited Partnership of MLP to be effective on the Closing
Date.


“Partnership Subsidiaries” and “Partnership Subsidiary” means all of
the subsidiaries of the Partnership as set forth on Exhibit 21 of the
Registration Statement.


 


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“Permits” means, with respect to MLP
any licenses, permits, variances, consents, authorizations, waivers, grants,
franchises, concessions, exemptions, orders, registrations and approvals of
Governmental Authorities or other Persons necessary for the ownership, leasing,
operation, occupancy and use of its Properties and the conduct of its
businesses as currently conducted.


“Person” means any individual,
corporation, company, voluntary association, partnership, joint venture, trust,
limited liability company, unincorporated organization or government or any
agency, instrumentality or political subdivision thereof, or any other form of
entity.


“Property” means any interest in any
kind of property or asset, whether real, personal or mixed, or tangible or
intangible.


“Purchase Price” has the meaning
specified in Section 2.02.


“Purchased Units” means [            ] units of limited partnership
interest in MLP to be issued and sold to the Purchaser pursuant to this
Agreement.  For the avoidance of doubt,
the number of Purchased Units set forth in the immediately preceding paragraph
is a post-split amount which gives effect to the Unit Split prior to the
issuance and sale of the Purchased Units.


“Purchaser” has the meaning specified
in the introductory paragraph.


“Purchaser Related Parties” has the
meaning specified in Section 5.02(a).


“Representatives” of any Person means
the officers, directors, employees, agents, counsel, investment bankers and
other representatives of such Person.


“Registration Statement” has the
meaning specified in the Recitals.


“Securities Act” means the Securities
Act of 1933, as amended from time to time, and the rules and regulations of the
Commission promulgated thereunder.


“Subsidiary” means, with respect to
any Person, (a) a corporation of which more than 50% of the voting power of
shares entitled (without regard to the occurrence of any contingency) to vote
in the election of directors or other governing body of such corporation is
owned, directly or indirectly, at the date of determination, by such Person, by
one or more Subsidiaries of such Person or a combination thereof, (b) a
partnership (whether general or limited) in which such Person or a Subsidiary
of such Person is, at the date of determination, a general or limited partner
of such partnership, but only if more than 50% of the partnership interests of
such partnership (considering all of the partnership interests of the
partnership as a single class) is owned, directly or indirectly, at the date of
determination, by such Person, by one or more Subsidiaries of such Person, or a
combination thereof, or (c) any other Person (other than a corporation or a partnership)
in which such Person, one or more Subsidiaries of such Person, or a combination
thereof, directly or indirectly, at the date of determination, has (i) at least
a majority ownership interest or (ii) the power to elect or direct the election
of a majority of the directors or other governing body of such Person.


 


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 “Unit” has
the meaning specified in the Recitals.


“Unit Split” has the meaning
specified in the Recitals.


ARTICLE II

AGREEMENT TO SELL AND PURCHASE


Section
2.01.  Authorization of Sale of
Purchased Units.
MLP has authorized the issuance and sale to the Purchaser of the Purchased
Units. The Purchased Units, when issued, will 
have those rights, preferences, privileges and restrictions governing “Partnership Common Units” reflected in the amended and
restated Partnership Agreement to be effective on the Closing Date.


Section
2.02. Sale and Purchase.  Immediately
following the initial sale of common stock by the Purchaser pursuant to the
Offering and subject to the terms and conditions hereof, at the Closing MLP
hereby agrees to issue and sell to the Purchaser, and the Purchaser hereby
agrees to purchase from MLP, the Purchased Units, and the Purchaser agrees to
pay MLP in cash an amount per Purchased Unit equal to $[          ] (such aggregate amount, the “Purchase Price”).


Section
2.03.  Closing. 
Subject to the terms and conditions hereof, the consummation of the
purchase and sale of the Purchased Units hereunder (the “Closing”)
shall take place on the date that shares of Purchaser are initially sold
pursuant to the Offering (such date, the “Closing Date”),
at the offices of Katten Muchin Rosenman LLP, 575 Madison Avenue, New York, New
York  10022..


Section
2.04.  Conditions to the Closing.


(a)   The
respective obligation of each party to consummate the purchase and issuance and
sale of the Purchased Units shall be subject to the satisfaction on or prior to
the Closing Date of each of the following conditions (any or all of which may
be waived by a particular party on behalf of itself in writing, in whole or in
part, to the extent permitted by applicable Law):


(i)  no statute, rule, order, decree or regulation
shall have been enacted or promulgated, and no action shall have been taken, by
any Governmental Authority of competent jurisdiction which temporarily,
preliminarily or permanently restrains, precludes, enjoins or otherwise
prohibits the consummation of the transactions contemplated hereby or makes the
transactions contemplated hereby illegal;


(ii)  there shall not be pending any suit, action
or proceeding by any Governmental Authority seeking to restrain, preclude,
enjoin or prohibit the transactions contemplated by this Agreement;


(iii)  the representations and warranties of the
other party contained in this Agreement shall be true and correct in all
material respects both when made and at and as of the Closing Date, as if made
at and as of such time (except to the extent expressly made as of an earlier
date, in which case as of such date); and


 


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(iv)  the Offering shall have been consummated.


(b)   MLP’s obligation to issue the Purchased
Units shall be subject, in addition to satisfaction of the conditions set forth
in (a) above, to the Purchaser’s having made all of the deliveries set forth in
Section 2.05 below.


(c)  Upon satisfaction of all of the conditions
set forth in (a) and (b) above, the Purchaser shall be the owner of the
Purchased Units and shall have all rights and obligations as a limited partner
pursuant to the Partnership Agreement with respect to the Purchased Units,
without any additional action on the part of MLP or the Purchaser.


Section
2.05.  Deliveries.  
At or before the Closing, subject to the terms and conditions hereof::


                (a)  the Purchaser will make payment to MLP of the
Purchase Price by wire transfer of immediately available funds to an account
designated by MLP in writing;


                (b)  the Purchaser will execute and furnish a
written confirmation stating that, as of the Closing Date, the Purchaser
accepts all of the terms and conditions of the Partnership Agreement, including
without limitation, the power of attorney granted therein; and


                (c)  the Purchaser will deliver an executed
counterpart signature page to the Partnership Agreement.


ARTICLE III

REPRESENTATIONS AND WARRANTIES RELATED TO MLP


MLP represents and
warrants to the Purchaser as follows:


Section
3.01.  Existence. 
MLP has been duly formed and is validly existing as a limited
partnership, in good standing under the laws of the State of Delaware, and is,
or at the Closing Date will be, duly registered or qualified to do business and
is in good standing as a foreign limited partnership, in each jurisdiction in
which its ownership or lease of property or the conduct of its businesses
requires such registration or qualification, except where the failure to be so
registered or qualified and in good standing would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, properties, financial condition, results of operation or prospects of
MLP taken as a whole (an “MLP Material Adverse
Effect”).  MLP has all limited
partnership power and authority necessary to own or lease its properties
currently owned or leased or to be owned or leased at the Closing.  MLP is not in default in the performance,
observance or fulfillment of any provision of the Partnership Agreement or its
Certificate of Limited Partnership.


Section
3.02.  Capitalization and Valid
Issuance of Purchased Units.


                (a)  Immediately following the consummation of the
Offering, the Unit Split and the transactions contemplated by this Agreement,
the issued and outstanding number of Partnership Common Units representing
limited partner interests of MLP will be [  
           ].  All such Units and the limited partner
interests represented thereby will be duly authorized and


 


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validly issued in
accordance with the Partnership Agreement, and will be fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 17-303 and 17-607 of the Delaware
Revised Uniform Limited Partnership Act (the “Delaware LP
Act”).


                (b)  The Purchased Units and the limited partner
interests represented thereby, will be duly authorized and validly issued in
accordance with the Partnership Agreement and, when issued and delivered to the
Purchaser against payment therefor in accordance with the terms of this Agreement,
will be fully paid (to the extent required under the Partnership Agreement) and
nonassessable (except as such nonassessability may be affected by Sections
17-303 and 17-607 of the Delaware LP Act, and will be free of any and all Liens
and restrictions on transfer and any preemptive or other similar rights, other
than restrictions on transfer under the Partnership Agreement and under
applicable state and federal securities laws and other than such Liens as are
created by the Purchaser.


                Section
3.03.  No Breach.  The execution, delivery and performance by
MLP of this Agreement, the compliance by MLP with the terms and provisions
hereof and the issuance and sale by MLP of the Purchased Units, do not and will
not (a) violate any provision of any Law or Permit  applicable to MLP or any of its Properties,
(b) conflict with or result in a violation of any provision of the Certificate
of Limited Partnership or other organizational documents of MLP, or the
Partnership Agreement, (c) require any consent, approval or notice under or
result in a violation or breach of or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under any contract, agreement, instrument, obligation,
note, bond, mortgage, license, loan or credit agreement to which MLP is a party
or by which MLP or any of its Properties may be bound, or (d) result in or
require the creation or imposition of any Lien upon or with respect to any of
the Properties now owned or hereafter acquired by MLP or any of its
Subsidiaries; with the exception of the conflicts stated in clause (b) of this
Section 3.03, except where such conflict, violation, default, breach,
termination, cancellation, failure to receive consent or approval, or
acceleration with respect to the foregoing provisions of this Section 3.03
would not, individually or in the aggregate, reasonably be expected to have an
MLP Material Adverse Effect.


Section
3.04.  Authority. 
MLP has all necessary power and authority to execute, deliver and
perform its obligations under this Agreement; and the execution, delivery and
performance of this Agreement by MLP have been duly authorized by all necessary
action on its part; and this Agreement constitutes the legal, valid and binding
obligations of MLP, enforceable in accordance with their terms, provided, that
the enforceability thereof may be limited by (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting creditors’ rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and (ii) public policy, applicable laws relating to
fiduciary duties and indemnification and an implied covenant of good faith and
fair dealing.


Section
3.05. Approvals.  No authorization, consent,
approval, waiver, license, qualification or written exemption from, nor any
filing, declaration, qualification or registration with, any Governmental Authority
or any other Person is required in connection with the execution, delivery or
performance by MLP of this Agreement, except (i) for the approvals


 


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required by the
Commission in order for the Offering to be consummated, and, (ii) for such
consents that have been, or prior to the Closing Date will be, obtained.


Section
3.06.  Organization and Good Standing
of Partnership Subsidiaries.  The
Partnership Subsidiaries constitute all of the Subsidiaries of the
Partnership.  Each of the Partnership and
the Partnership 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 except where the failure to
obtain such consents would not have an MLP Material Adverse Effect, and each
such Consent is valid and in full force and effect, and none of the Partnership
nor any Partnership Subsidiary has received notice of any investigation or
proceedings which results in or, if decided adversely to the Partnership or any
Partnership Subsidiary, could reasonably be expected to result in, the revocation of, or imposition of a
materially burdensome restriction on, any Consent.  Each of the Partnership and the Partnership
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 an MLP Material Adverse Effect.  No
Consent contains a materially burdensome restriction not adequately disclosed
in the Registration Statement.


Section
3.07.  Financial Statements.  The financial statements of the Partnership
set forth in the Registration Statement accurately reflect the books and
records of the Partnership and present fairly, in all material respects, the
financial position of the Partnership and the Partnership 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).


Section
3.08.  Commission Filings. 
The 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 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 no event or series of events occurred which could reasonably
have an MLP Material Adverse Effect.


 


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


Section
3.11.  Compliance with Laws. 
The Partnership and the Partnership Subsidiaries are in compliance in
all material respects with all Laws and Orders promulgated by any Governmental
Authority applicable to the Partnership and the Partnership Subsidiaries or to
the conduct of the business or operations of the Partnership and the
Partnership Subsidiaries or the use of their properties (including any leased
properties) and assets, except where failure to comply would not have an MLP
Material Adverse Effect.  Since
June 30, 2005 neither the Partnership nor any Partnership Subsidiary has
received any written notice of violation or alleged material violation of any
such Law or Order by any Governmental Authority in any material respect that
has not been resolved.  Since
June 30, 2005 neither the Partnership nor any Partnership Subsidiary has
received written notice that it is the subject of an investigation by any
Governmental Authority which has not been resolved or which could reasonably
have an MLP 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 Partnership, directly or indirectly, in connection with the
transaction contemplated hereby.


Section
3.13.  No Default. 
The Partnership is not in default in the payment or performance of any
of its Contracts, except where such default would not have an MLP Material
Adverse Effect.


Section
3.14.  Disclosure Controls. 
The Partnership’s certifying officers have evaluated the effectiveness
of the Partnership’s controls and procedures as of June 30, 2005 (such date,
the “Evaluation Date”).  The 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 Partnership’s internal controls (as such term is
defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to the
knowledge of the Partnership, in any factors that could significantly affect
the Partnership’s internal controls.


Section 3.15     Taxes.     Since
January 1, 2002, the Partnership and each Partnership 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
an MLP Material Adverse Effect.  The
reserves for


 


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taxes contained in the financial statements of the
Partnership or carried on the books and records of the Partnership are in the
aggregate adequate to cover all tax liabilities and deferred taxes of the
Partnership and the Partnership Subsidiaries as of the date of this Agreement,
except to the extent that any inadequacy could not in the aggregate reasonably
have an MLP Material Adverse Effect.


Section
3.16         Investment Company.  The
Partnership is not an affiliate of an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER


The Purchaser
represents and warrants to MLP:


Section
4.01.  Investment Representations. 
The Purchaser understands that the Purchase Units 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 Purchase Units may not be sold or otherwise
disposed of unless registered under the Securities Act or exempted from such
registration.


Section
4.02.  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.


Section
4.03.  Receipt of Information;
Authorization.  The
Purchaser acknowledges that it has been provided a reasonable opportunity to ask
questions of and receive answers from Representatives of MLP regarding matters
concerning the business of MLP and its operations and financial condition.


Section
4.04.  Authority. 
The Purchaser has all necessary power and authority to execute, deliver
and perform its obligations under this Agreement; and the execution, delivery
and performance by the Purchaser of this Agreement has been duly authorized by
all necessary action on its part; and this Agreement constitutes the legal,
valid and binding obligations of the Purchaser, enforceable in accordance with
its terms, provided, that the enforceability thereof may be limited by (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors’ rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and (ii) public policy,
applicable laws relating to fiduciary duties and indemnification and an implied
covenant of good faith and fair dealing.


Section
4.05.  No Breach. 
The execution, delivery and performance by the Purchaser of this
Agreement and all other agreements and instruments to be executed and delivered
by the Purchaser pursuant hereto or thereto or in connection with the
transactions contemplated by this Agreement, and compliance by the Purchaser
with the terms and provisions hereof and thereof and the purchase by the
Purchaser of the Purchased Units, do not and will not (a) violate any


 


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provision of any
Law or Permit having applicability to the Purchaser or any of its Properties,
(b) conflict with or result in a violation of any provision of the
organizational documents of the Purchaser, (c) require any consent, approval or
notice under or result in a violation or breach of or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any contract, agreement,
instrument, obligation, note, bond, mortgage, license, loan or credit agreement
to which the Purchaser is a party or by which the Purchaser or any of its
Properties may be bound, or (d) result in or require the creation or imposition
of any Lien upon or with respect to any of the Properties now owned or
hereafter acquired by the Purchaser; with the exception of the conflicts stated
in clause (b) of this Section 4.05, except where such conflict, violation,
default, breach, termination, cancellation, failure to receive consent or
approval, or acceleration with respect to the foregoing provisions of this
Section 4.05 would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the Purchaser’s ability to
consummate the transactions contemplated by this Agreement.


Section
4.06.  Restricted Securities. 
The Purchaser understands that the Purchased Units it is purchasing are
characterized as “restricted securities” under the federal securities laws
insofar as they are being acquired from MLP in a transaction not involving a
public offering and that under such laws and applicable regulations such
securities may be resold without registration under the Securities Act only in
certain limited circumstances.


ARTICLE V

MISCELLANEOUS


Section
5.01.  Interpretation and Survival of
Provisions.  Article, Section, Schedule, and Exhibit
references are to this Agreement, unless otherwise specified. All references to
instruments, documents, contracts and agreements are references to such
instruments, documents, contracts, and agreements as the same may be amended,
supplemented, and otherwise modified from time to time, unless otherwise
specified. The word “including” shall mean “including but not limited to.” If
any provision in this Agreement is held to be illegal, invalid, not binding, or
unenforceable, such provision shall be fully severable and this Agreement shall
be construed and enforced as if such illegal, invalid, not binding, or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions shall remain in full force and effect.  This Agreement has been reviewed and
negotiated by sophisticated parties with access to legal counsel and shall not
be construed against the drafter. The representations and warranties set forth
herein shall survive for a period of six (6) months following the Closing Date
regardless of any investigation made by or on behalf of MLP or the Purchaser.
The covenants made in this Agreement shall not survive the Closing.


Section
5.02.  No Waiver; Modifications in
Writing.


                (a)  Delay. 
No failure or delay on the part of any party in exercising any right,
power, or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power, or remedy preclude any
other or further exercise thereof or the exercise of any right, power, or
remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to a party at law or in equity or otherwise.


 


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                (b)  Specific Waiver. Except as otherwise
provided herein, no amendment, waiver, consent, modification, or termination of
any provision of this Agreement shall be effective unless signed by each of the
parties hereto or thereto affected by such amendment, waiver, consent,
modification, or termination. Any amendment, supplement or modification of or
to any provision of this Agreement, or any waiver of any provision of this
Agreement shall be effective only in the specific instance and for the specific
purpose for which made or given.


Section
5.03.  Binding Effect; Assignment.


                (a)  Binding Effect.  This Agreement shall be binding upon MLP, the
Purchaser, and their respective successors and permitted assigns. Except as
expressly provided in this Agreement, this Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to
this Agreement, and their respective successors and permitted assigns.


                (b)  Assignment of Rights.  All or any portion of the rights and
obligations of the Purchaser under this Agreement may not be transferred by the
Purchaser without the written consent of MLP.


Section
5.04.  Communications. 
All notices and demands provided for hereunder shall be in writing and
shall be given by registered or certified mail, return receipt requested,
telecopy, air courier guaranteeing overnight delivery or personal delivery to
the following addresses:


(a)   If to the Purchaser:


Newkirk Realty
Trust, Inc.


Two Jericho Plaza


Wing A


Jericho, New
York  11753


Attention:  Carolyn Tiffany


Facsimile:
(516)  433-2777


with a copy to:


 


Katten Muchin
Rosenman LLP


575 Madison Avenue


New York, New
York  10022


Attention:  Mark I. Fisher and Elliot Press


Facsimile:  (212) 940-8776


 


(b)   If to MLP:


 


7 Bulfinch Place,
Suite 500


Boston,
Massachusetts  02114


Attention:  Peter Braverman


Facsimile:  (617) 
570-4746


 


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with a copy to:


 


Post, Heymann
& Koffler LLP


Two Jericho Plaza


Wing A


Jericho, New
York  11753


Attention:  David J. Heymann


Facsimile:  (516) 433-2777


 


or to such other address
as MLP or the Purchaser may designate in writing. All notices and
communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; upon actual receipt if sent by certified
mail, return receipt requested, or regular mail, if mailed; when receipt is
acknowledged, if sent via facsimile; and upon actual receipt when delivered to
an air courier guaranteeing overnight delivery.


Section
5.05.  Entire Agreement. 
This Agreement and the other agreements and documents referred to herein
are intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein with
respect to the rights granted by MLP or any of its Affiliates or the Purchaser
or any of its Affiliates set forth herein or therein. This Agreement and the
other agreements and documents referred to herein supersede all prior
agreements and understandings between the parties with respect to such subject
matter.


Section
5.06.  Governing Law. 
This Agreement will be construed in accordance with and governed by the
laws of the State of New York without regard to principles of conflicts of
laws.


Section
5.07.  Execution in Counterparts. 
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.


[The remainder of this
page is intentionally left blank.]


 


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


	
   

  	
   

  	
   

  	
   

  	
  THE NEWKIRK MASTER LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  MLP GP LLC, its general partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Newkirk MLP Corp., its manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NEWKIRK REALTY TRUST, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  



 


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