Exhibit 10.2


ACQUISITION AGREEMENT


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


RECITALS:


                WHEREAS, pursuant
to that certain Exclusivity Services Agreement (the “Exclusivity Agreement”),
dated as of December 31, 2003, between First Union and Michael L. Ashner (“Ashner”),
Ashner is required to offer to First Union any Business Opportunity (as defined
in the Exclusivity Agreement) offered to him during the period that he is
serving as either an executive officer First Union or as a member of the Board
of Trustees of First Union;


 


WHEREAS, Ashner is a director and executive officer of
Newkirk;


 


WHEREAS, Newkirk is simultaneously herewith making an
initial public offering of its shares of common stock, par value $.01 (the “Common
Stock”) pursuant to a registration statement on Form S-11 filed by Newkirk (the
“Registration Statement”) with the Securities and Exchange Commission and, in
connection therewith, desires to acquire from First Union certain rights
presently held by First Union pursuant to the Exclusivity Agreement in exchange
for shares of Common Stock;


 


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.


“Advisor” shall mean NKT Advisors LLC, a
Delaware limited liability company.


“Advisory Agreement” shall mean that certain
Advisory Agreement dated                  ,
between Newkirk, the Operating Partnership and the Advisor.


“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,” First Union shall not be deemed an “Affiliate” of Newkirk.


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


“Basket” shall have the meaning set forth in
Section 11.03.


“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 2.03(a).


“Closing Date” shall have the meaning set forth
in Section 2.03(a).


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


“Common Stock” shall have the meaning set forth
in the Recitals.


“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.


“Forfeiture Event” shall mean (i) the
termination of the Advisory Agreement by Newkirk for Cause (as defined in the
Advisory Agreement), (ii) Michael L. Ashner’s resignation as the Chief
Executive Officer and director of Newkirk and the Advisor, or (iii) the death
or disability of Michael L. Ashner unless the other members of the Advisor’s
senior management at such time remain in such positions.


 


2





















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


“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 10.01.


“Indemnitor” shall have the meaning set forth
in Section 10.01.


“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 have the meaning
ascribed thereto in the Securities Purchase Agreement.


“Loss” shall have the meaning set forth in
Section 10.01.


“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 Newkirk, 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 Newkirk, 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.


“Net Lease Assets” shall
mean (i) a property
that is either (a) triple net leased or (b) where a tenant leases at least 85%
of the rentable square footage of the property and, in addition to base rent,
the tenant is required to pay some or all of the operating expenses for the property,
and, in both (a) and (b) the lease has a remaining term, exclusive of all
unexercised renewal terms, of more than 18 months, (ii) management agreements
and master leases with terms of greater than three years where a manager or
master lessee bears all operating expenses of the


3





















property and pays the
owner a fixed return, (iii) securities of companies including, without
limitation, corporations, partnerships and limited liability companies, whether
or not publicly traded, that are primarily invested in assets that meet the
requirements of clauses (i) and (ii), and (iv) all retenanting and
redevelopment associated with such properties, agreements and leases, and all
activities incidental thereto.


“Notice” shall have
the meaning set forth in Section 10.02(a).


“NYSE” shall mean the New York Stock Exchange.


“Offering” shall mean the offering
and sale of the Shares contemplated by the Registration Statement and
Prospectus.


“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.


“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 2.02.


“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 Newkirk
and First Union.


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


“Reversion Event” shall mean (i) the
termination or non-renewal of the Advisory Agreement or (ii) Michael L. Ashner’s
resignation as the Chief Executive Officer and director of Newkirk and the
Advisor.


“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.


4





















 


“Securities Purchase Agreement” shall mean that
certain Securities Purchase Agreement, dated of even date herewith, among Newkirk
and First Union.


“Shares” shall mean the shares of Common Stock
issued to First Union 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.


“Vesting Event” shall mean (i) the termination
of the Advisory Agreement by the Advisor following a breach by Newkirk of the
Advisory Agreement that remains uncured by Newkirk, (ii) the non-renewal of the
Advisory Agreement, or (iii) termination of the Advisory Agreement by Newkirk
other than for Cause (as defined in the Advisory Agreement).


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


(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


ASSIGNMENT OF
RIGHTS; ISSUANCE OF SHARES


Section 2.01.          Assignment of Rights.  Upon the terms and subject to the conditions
of this Agreement, First Union shall sell, assign, convey and transfer to Newkirk
all of First Union’s right, title and interest under the Exclusivity Agreement
solely with respect to Net Lease Assets (the “Exclusivity Assignment”), free
and clear of any lien or other encumbrance.


5





















 


Section 2.02.          Purchase Price.  In consideration of the assignment provided
for in Section 2.01 hereof, Newkirk shall issue to First Union shares of Common
Stock having a value of $20,000,000 (the “Purchase Price”), 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.


Section 2.03.                       Closing.


(a)           Subject
to the satisfaction or waiver of the conditions set forth in this Agreement,
the closing of the transaction contemplated by Sections 2.01 and 2.02 (the “Closing”)
shall take place simultaneously with the closing of Newkirk’s initial public
offering, or at such other time as may be mutually agreed upon by First Union and
Newkirk (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) Newkirk will deliver to First Union (x) a certificate for the Shares
registered in the name of First Union and (y) legal opinions of counsel to Newkirk
addressed to First Union, satisfactory to counsel to First Union (the “Newkirk
Counsel Opinions”); (ii) First Union, in full payment for the Shares, will
execute and deliver to Newkirk an assignment in form and substance reasonably
satisfactory to Newkirk to evidence the Exclusivity Assignment ; 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
VIII.


ARTICLE III


REPRESENTATIONS
AND WARRANTIES OF NEWKIRK


Newkirk represents and warrants to First Union as
follows:


Section 3.01.        Organization and Good Standing.  Each of Newkirk, 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 Newkirk, the Operating Partnership
and Newkirk 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 Newkirk, 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.  Newkirk has heretofore delivered or made
available to First Union complete and correct copies of the Articles of
Incorporation of Newkirk, as amended to date (the “Articles of Incorporation”).


Section 3.02.        Authority; Binding Effect.
Newkirk has the full right, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate


6





















 


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 Newkirk. 
This Agreement has been duly and validly executed and delivered
by Newkirk. This Agreement constitutes the legal, valid and binding obligation
of Newkirk, 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.  Newkirk
Subsidiaries constitute all of the Subsidiaries of Newkirk and the Operating
Partnership.  Each of Newkirk, 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 Newkirk, the Operating
Partnership nor any Company Subsidiary has received notice of any investigation
or proceedings which results in or, if decided adversely to Newkirk, the
Operating Partnership or any Company Subsidiary, could reasonably be expected
to result in, the revocation of,
or imposition of a materially burdensome restriction on, any Consent.  Each of Newkirk, 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 Newkirk, the number of
shares of each class issued and outstanding and the number of shares reserved
for issuance in connection with Newkirk’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 Newkirk.  All
of the issued and outstanding shares of Newkirk’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 Newkirk 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 Newkirk (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.


 


7





















Section 3.05.        No Violations; Consents.   Neither the execution, delivery or
performance by Newkirk 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 Newkirk, 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 Newkirk, the Operating Partnership or any Company
Subsidiary is a party or by which Newkirk or any Company Subsidiary or any of
the properties or assets of Newkirk, the Operating Partnership or any Company
Subsidiary is bound, (c) constitute a violation of any Law applicable to
Newkirk, the Operating Partnership or any Company Subsidiary; or (d) result in
the creation of any Lien upon the properties or assets of Newkirk, 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 Newkirk, 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.  Newkirk has applied to have its shares of
Common Stock listed on the NYSE.


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 Newkirk and the
Operating Partnership and present fairly, in all material respects, the
financial position of Newkirk 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.


8





















 


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 Newkirk, threatened, that question the validity of this
Agreement or the transaction contemplated hereby or any action taken or to be
taken by Newkirk, 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 Newkirk, threatened, against or involving Newkirk,
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 Newkirk, threatened,
Order of any Governmental Body against Newkirk, 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.  Newkirk, 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 Newkirk, the
Operating Partnership and the Company Subsidiaries or to the conduct of the
business or operations of Newkirk, the 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
Newkirk, 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
Newkirk, 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.  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 Newkirk, 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 Newkirk
reasonably and in good faith believes are reliable and accurate, and such data
agree with the sources from which they are derived.


 


9





















Section 3.14.      No Default.  Newkirk 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, Newkirk has not entered into any agreement to register its debt or
equity securities under the Securities Act.


Section 3.16.      Disclosure Controls.  Newkirk has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for Newkirk
and designed such disclosure controls and procedures to ensure that material
information relating to Newkirk, including its subsidiaries, is timely made
known to the certifying officers by others within those entities, particularly
during the period in which Newkirk’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
under the Exchange Act) or, to the knowledge of Newkirk, in any factors that
could significantly affect Newkirk’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, Newkirk 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”); Newkirk’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 Newkirk’s
qualification and taxation as a REIT are true, complete and correct in all
material respects.


            Section 3.18   Non-Integration.  None of Newkirk, 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 Newkirk, the Operating Partnership nor any of their respective
affiliates has sold or issued any Common Stock or other security of Newkirk,
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


10





















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 Newkirk, the Operating Partnership, the Manager or any
of their respective affiliates, on the one hand, and any director, officer,
stockholder, tenant or supplier of Newkirk, 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 Newkirk or the Operating Partnership to or for
the benefit of any of the officers or directors of Newkirk 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 Newkirk 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 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 FIRST UNION


First Union represents
and warrants to Newkirk as follows:


Section 4.01.          Authorization.  First Union is a trust organized and validly
existing under the Laws of the State of Ohio. 
First Union 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 First Union of the transaction contemplated hereby have
been duly authorized by all necessary action on the part of First Union.  This Agreement has been duly executed and
delivered by First Union and constitutes the legal, valid and binding
obligations of First Union, 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.


Section 4.02.          No Violations; Consents.   Neither the execution, delivery or
performance by First Union 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 First Union, (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 First Union is a party or by which
First Union or any of the properties or assets of First Union is bound, (c)
constitute a violation of any Law applicable to First Union; or (d) result in
the creation of any Lien upon the properties or assets of First Union.  No Consent of any third party or governmental
entity is required or necessary in connection with the execution and


 


11





















delivery of this Agreement and the consummation of the
transaction contemplated hereby by First Union.


Section 4.03.      Litigation.  There are no Legal Proceedings pending or, to
the knowledge of First Union, threatened, that question the validity of this
Agreement or the transaction contemplated hereby or any action taken or to be
taken by First Union in connection with the consummation of the transaction
contemplated hereby.  There are no Legal
Proceedings pending or, to the knowledge of First Union, threatened, against or
involving First Union or any of its respective properties or assets, at Law or
in equity.  There is no outstanding or,
to the knowledge of First Union, threatened, Order of any Governmental Body
against First Union or any of its properties or assets, which Order could
reasonably have a Material Adverse Effect.


Section 4.04.      Compliance with Laws.  First Union is in compliance in all respects
with all Laws and Orders promulgated by any Governmental Body applicable to First
Union or to the conduct of the business or operations of First Union or the use
of their properties (including any leased properties) and assets, except where
failure to comply would not have a Material Adverse Effect.  First Union has not 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.  First Union has not 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 4.05.      Investment Representations.  First Union is a Qualified Institutional
Buyer and is acquiring the Shares for First Union’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.  First Union 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.


Section 4.06.      First Union’s Acknowledgment. First
Union has had the opportunity, directly or through its representatives, to ask
questions of and receive answers from Persons acting on behalf of Newkirk
concerning the Shares.


Section 4.07.      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 First Union, directly
or indirectly, in connection with the transaction contemplated by this
Agreement.


Section 4.08.      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


 


12





















 


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
4.08(e) hereof shall be removed and Newkirk 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).


Section 4.09.          Ownership
and Transfer Limitations.  First
Union has received a copy of the Articles of Incorporation of Newkirk, and
understands, and will be in compliance with, the restrictions on transfer and
ownership of Newkirk’s Capital Stock included therein at the Closing and at all
times thereafter.


Section 4.10.          Interests
in Newkirk.  Except for Shares being
issued to First Union pursuant to that certain Stock Purchase Agreement of even
date herewith, at or simultaneously with the Closing, First Union does not own,
directly or indirectly, any Capital Stock of Newkirk.


Section 4.11.          Exclusivity
Agreement.  First Union had the full
power and authority to enter into the Exclusivity Agreement and to consummate
the transaction contemplated thereby.


 


13





















The
execution and delivery of the Exclusivity Agreement and the consummation by
First Union of the transaction contemplated thereby was duly authorized by all
necessary action on the part of First Union. 
The Exclusivity Agreement was duly executed and delivered by First Union
and constitutes the legal, valid and binding obligation of First Union,
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.  The rights granted to First Union pursuant to
the Exclusivity Agreement were granted free and clear of any lien or other
encumbrance.


 


ARTICLE V


RIGHTS AND
RESTRICTIONS ON SHARES; TERMINATION OF ASSIGNMENT


Section 5.01.          Vesting.  The Shares shall be deemed fully vested and
not subject to forfeiture as contemplated by Section 5.02 as follows:  50% of the Shares shall be fully vested upon
issuance and the balance shall vest ratably over 36 months on each monthly
anniversary of the date of Closing commencing on the first monthly anniversary
of Closing; provided, however, all of the Shares shall immediately vest upon a Vesting
Event.


Section 5.02.          Forfeiture
of Shares.  At such time, if at all, that
a Forfeiture Event shall occur, the Shares not then vested shall be deemed
forfeited and First Union shall have no further interest in such Shares.  Upon the termination of the Exclusivity
Assignment, Newkirk shall deliver written notice thereof to First Union and First
Union shall promptly deliver to Newkirk for cancellation the certificate or
certificates evidencing the Shares and Newkirk shall deliver to First Union a
replacement certificate evidencing the total amount of Shares then vested.


Section 5.03.          Voting
Rights.  Notwithstanding whether the
Shares have vested, unless forfeited pursuant to Section 5.02 all Shares shall
be entitled to be voted without restriction at any meeting or written consent
of shareholders of Newkirk.


Section 5.04.          Dividends.  Notwithstanding whether the Shares have
vested, unless forfeited pursuant to Section 5.02 all Shares shall be entitled
to be paid a dividend at such time or times, if any, as dividends are paid on
the Common Stock.


Section 5.05.          Termination
of Exclusivity Assignment.  Upon the
occurrence of a Reversion Event, the Exclusivity Assignment shall immediately
terminate without any further action on the part of either party and all rights
assigned to Newkirk pursuant to this Agreement and any assignment delivered in
connection therewith shall revert to First Union.


ARTICLE VI


COVENANTS OF
NEWKIRK


Newkirk covenants and
agrees as follows:


Section 6.01.          Maintain Listing.  Newkirk will use commercially reasonable
efforts to (x) maintain the listing and trading of its Common Stock on the
NYSE, for so long as Newkirk qualifies for such listing under the rules and


14





















regulations of the NYSE
and (y) comply in all material respects with Newkirk’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, Newkirk 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 Newkirk’s reporting, filing and other obligations under the bylaws or
rules of such exchanges or the National Association of Securities Dealers,
Inc., as applicable.  Newkirk will
promptly provide to First Union 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 6.02.          Secure Listing.  Following the execution of this Agreement, Newkirk
shall promptly file with the NYSE an application to list the Shares on the
NYSE.


ARTICLE
VII


ACTIONS PRIOR TO
CLOSING


Section 7.01.        Consent.  Each of Newkirk and First Union 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 7.02.        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 VIII


CONDITIONS TO
CLOSING


Section 8.01.        Conditions to Obligations of First
Union.  The obligation of First Union
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.  Newkirk
shall have delivered to First Union (i) a certificate representing the Shares,
duly registered in the name of First Union and (ii) Newkirk Counsel Opinions.


 


15





















(c)           NYSE Listing.  The Shares
have been duly listed on the NYSE, pending notice of issuance.


(d)           Representations and Warranties.  The representations and warranties of Newkirk
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).


(e)           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.


(f)            Performance.  Newkirk 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.


(g)           No New Information.  First Union shall not have become aware of
any information or other matter with respect to legal matters affecting Newkirk
that is inconsistent with the financial and other information disclosed to First
Union 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.


(h)           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.


(i)            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
8.01.


(j)            Consummation of Securities
Purchase Agreement.  The
transaction contemplated by the Securities Purchase Agreement shall be
consummated simultaneously with the Closing.


(k)           Registration Rights
Agreement.  The Registration
Rights Agreement shall have been executed and delivered by Newkirk.


Section 8.02.          Conditions to Obligations of Newkirk.  The obligation of Newkirk to consummate the
transaction contemplated hereby shall be subject to the fulfillment on or prior
to the Closing Date of the following conditions:


16





















(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)           Assignment.  First
Union shall have delivered to Newkirk an assignment in form and substance
reasonably acceptable to Newkirk to assign to Newkirk all of First Union’s
right, title and interest under the Exclusivity Agreement to Net Lease Assets.


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


(d)           Consummation of Securities
Purchase Agreement.  The
transaction contemplated by the Securities Purchase Agreement shall be
consummated simultaneously with the Closing.


ARTICLE IX


SURVIVAL


Section 9.01.          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 9.01 shall
survive until resolved pursuant to a final non-appealable judicial
determination or otherwise.


ARTICLE X


INDEMNIFICATION


Section 10.01.      Generally.  Subject to the limitations and other
provisions of this Article X, Newkirk covenants and agrees to indemnify, defend
and hold harmless First Union and its directors, officers, shareholders,
employees and agents (each, an “First Union 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 or covenant of Newkirk contained
herein, or (b) the failure of Newkirk to perform any of the agreements,
covenants or obligations contained herein (other than if any such claim was a
result of a breach by First Union under this Agreement).  Subject to the limitations and other provisions
of this Article X, First Union covenants and agrees to indemnify, defend and
hold harmless Newkirk 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 First Union contained herein, or (b) the failure of First Union to
perform any of the agreements, covenants or


 


17





















obligations of First Union 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 10.02.                 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 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


 


18





















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 X
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 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 10.03.                 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 10.01.  Notwithstanding anything to the contrary
contained herein, the liability of (i) Newkirk under this Article X shall be
limited to an amount equal to the Purchase Price; and (ii) First Union under
this Article X shall be limited to an amount equal to the Purchase Price.


ARTICLE XI


TERMINATION


Section 11.01.        Termination.  This Agreement may be terminated on or any
time prior to the Closing by the mutual written consent of each of First Union
and Newkirk.


Section 11.02.        Effect Of Termination.  In the event of the termination of this
Agreement as provided in Section 11.01, 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 7.02
(Publicity) and (ii) Article X (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 under
Section 11.01 shall not relieve either party of any liability for breach of
this Agreement prior to the date of termination.


ARTICLE XII


MISCELLANEOUS


Section 12.01         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


 


19





















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


If to Newkirk:


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 First Union:


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 12.02         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 12.03         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 First Union.


Section 12.04         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 12.05         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 First Union, this Agreement may be amended
by a written instrument executed by First Union.


20





















 


Section 12.06         Limitation
on Assignment; Parties in Interest.


(a)           No
assignment of this Agreement or of any rights or obligations hereunder may be
made by Newkirk without the prior written consent of First Union 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 First Union (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 12.07         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 12.08         Jurisdiction.  Each of First Union and Newkirk (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 Newkirk, or First Union 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 12.09         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 any Person entitled to indemnity under Article X.


Section 12.10         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 12.11         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 12.12         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 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.


21





















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


	
   

  	
  NEWKIRK REALTY TRUST, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FIRST UNION REAL ESTATE EQUITY
  AND MORTGAGE INVESTMENTS

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  



 


 


THE UNDERSIGNED, BY HIS EXECUTION
OF THIS AGREEMENT, ACKNOWLEDGES AND AGREES TO BE BOUND THE TERMS OF THIS
AGREEMENT.


 


 


	
   

  	
   

  
	
  Michael L. Ashner

  	
   

  



 


22