Exhibit 10.5


 


REGISTRATION RIGHTS
AGREEMENT


 


This REGISTRATION RIGHTS
AGREEMENT is made and entered into as of November 7, 2005, between Newkirk
Realty Trust, Inc., a Maryland corporation (the “Company”), and Apollo
Real Estate Investment Fund III L.P. (together with its successors and
permitted assigns, “Shareholder”).


 


WHEREAS, Shareholder is the holder of limited
partnership units (“Partnership Units”) of The Newkirk Master Limited
Partnership (the “Operating Partnership”), a Delaware limited partnership of
which the Company is the general partner;


 


WHEREAS, such units may be redeemed for shares of
the Company’s common stock, on or after the first anniversary of the closing of
the initial public offering of the Company’s common stock; and


 


WHEREAS, the Company has agreed to grant to
Shareholder the registration rights described herein relating to the issuance
and the resale of the common stock issuable upon redemption of the Partnership
Units.


 


NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained and other good and valid
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties to this Agreement hereby agree as follows:


 


1.                                       CERTAIN DEFINITIONS.


 


In addition to the terms
defined elsewhere in this Agreement, the following terms shall have the
following meanings:


 


“Affiliate” of any Person
means any other Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such Person. The term “control” (including the terms “controlled by” and “under
common control with”) as used with respect to any Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.


 


“Agreement” means this
Registration Rights Agreement, including all amendments, modifications and
supplements and any exhibits or schedules to any of the foregoing, and shall
refer to this Registration Rights Agreement as the same may be in effect at the
time such reference becomes operative.


 


“Business Day” means any day
on which commercial banks are open for business in New York, New York and on
which the New York Stock Exchange or such other exchange as the Common Stock is
listed is open for trading.


 





















 


“Common Stock” means common
stock, par value $.01 per share, of the Company.


 


“Conversion Shares” means
any of the shares of Common Stock issued or issuable upon redemption of the
Partnership Units.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“Holder” means any holder of
record of Registrable Common Stock (as defined below). For purposes of this
Agreement, the Company may deem and treat the registered holder of Registrable
Common Stock as the Holder and absolute owner thereof, and the Company shall
not be affected by any notice to the contrary.


 


“Operating Partnership”
means The Newkirk Master Limited Partnership, a Delaware limited partnership,
and any successor thereto.


 


“Other Registration Rights
Agreements” means that certain Registration Rights Agreement, dated November 7,
2005, by and between the Company and First Union Real Estate Equity and
Mortgage Investments, and that certain Registration Rights Agreement, dated November 7,
2005, by and between the Company and Vornado Realty L.P.


 


“Partnership Units” means
partnership units of the Operating Partnership.


 


“Person” means any
individual, sole proprietorship, partnership, limited liability company, joint
venture, trust, incorporated organization, association, corporation,
institution, public benefit corporation, government (whether federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof) or any other
entity.


 


“Prospectus” means the
prospectus or prospectuses included in any Registration Statement, as amended
or supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Common Stock covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including any preliminary prospectus or supplement, post-effective
amendments and all material incorporated by reference in such prospectus or
prospectuses.


 


“Redemption Date” shall mean
the date on which Partnership Units held by the Selling Stockholder are first
redeemable for shares of Common Stock.


 


“Registrable Common Stock”
means those Conversion Shares issued or issuable to the Shareholder upon
redemption of those 23,359,046 Partnership Units currently held by the
Shareholder, if the Shareholder were to receive or receives Conversion Shares
upon redemption of such Partnership Units, including any securities issued in
respect of such


 


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securities by reason of or in connection with any
exchange for or replacement of such securities or any stock dividend, stock
distribution, stock split, purchase in any rights offering or in connection
with any combination of shares, recapitalization, merger or consolidation, or
any other equity securities issued pursuant to any other pro rata distribution
with respect to the Common Stock, until, in the case of any such securities,
the earliest to occur of (i) the date on which its resale has been
registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement relating to it or (ii) the date
on which either it is distributed to the public pursuant to Rule 144 or is
saleable without restriction pursuant to Rule 144(k) promulgated by the
Commission pursuant to the Securities Act as confirmed in a written opinion of
counsel to the Company addressed to the Holder. All references herein to a “Holder”
or “Holder of Registrable Common Stock” shall include the holder or holders of
Partnership Units to the extent of the Conversion Shares then underlying such
Partnership Units. For purposes of determining the number of shares of Registrable
Common Stock held by a Holder and the number of shares of Registrable Common
Stock outstanding, for purposes of this Agreement (including the definition of “Holder”)
but not for any other purpose, any holder of record of Partnership Units shall
be deemed to be a Holder of the number of Conversion Shares issuable upon
conversion of such Partnership Units and all such Conversion Shares shall be
deemed to be outstanding shares of Registrable Common Stock.


 


“Registration Statement”
means any registration statement of the Company which covers any of the
Registrable Common Stock pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all materials
incorporated by reference in such Registration Statement.


 


“Rule 415” means Rule 415
promulgated by the SEC pursuant to the Securities Act, as such Rule may be
amended from time to time, or any similar Rule or regulation hereafter
adopted by the Commission as a replacement thereto having substantially the
same effect as such rule.


 


“SEC” means the Securities
and Exchange Commission.


 


“Securities Act” means the
Securities Act of 1933, as amended.


 


“Shelf Registration
Statement” shall have the meaning set forth in Section 4 hereof.


 


“underwritten registration
or underwritten offering” means a registration in which securities of the
Company are sold to underwriters for reoffering to the public.


 


2.                                       AUTOMATIC AND DEMAND REGISTRATIONS.


 


(a)                                  Issuance Registration.  To the extent permitted by applicable
rules and regulations promulgated by the SEC, the Company shall file a
registration statement (the


 


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“Initial Registration Statement”) with the SEC on
the appropriate form for a continuous offering to be made pursuant to Rule 415
providing for the delivery to the Holders of Common Stock issued pursuant to
such registration statement upon the tendering of Class A Units for
redemption or exchange.  The Company will use commercially reasonable best
efforts to effect (at the earliest possible date) the registration, under the
Securities Act, of such Common Stock.  If such registration statement
ceases to be effective for any reason at any time prior to the delivery of all
Common Stock registered thereunder, then the Company shall use its commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof.  The Company shall be responsible for all Registration
Expenses in connection with any registration pursuant to this Section 2(a). 
The Company shall promptly supplement and amend such registration statement and
the prospectus included therein if required by the rules, regulations or
instructions applicable to the registration statement used for such
registration statement or by the Securities Act.  Any registration
statement filed pursuant to this Section 2(a) shall not eliminate any
right to registration provided under other sections of this Agreement.


 


(b)                                 Right to Request Registration.  Any time after the Redemption Date, a
Holder may request pursuant to this Section 2(b) registration under
the Securities Act of the resale of all or part of the Shareholder’s
Registrable Common Stock (“Demand Registration”); provided, that if the Company
is eligible to use a Shelf Registration Statement (as defined in Section 4
hereof), the Holder shall be required to request that the Company register its
Registrable Common Stock on a Shelf Registration Statement rather than requesting
Demand Registrations and shall not be entitled to request any Demand
Registrations while such Shelf Registration is effective and available for
registration of the Registrable Common Stock.


 


(c)                                  Number of Demand Registrations.  Subject to the provisions of Section 2(b),
the Shareholder shall be entitled to request an aggregate of two Demand
Registrations per year, and shall not be entitled to request that less than 25%
of the Registrable Securities be included in any Demand Registration.


 


(d)                                 Restrictions on Demand Registrations.  The Company shall not be obligated to
effect any Demand Registration within six months after the effective date of a
previous Demand Registration, a previous Shelf Registration (as hereinafter
defined) or a previous registration under which the Shareholder had piggyback
rights pursuant to Section 3 hereof wherein the Shareholder was permitted
to register, and sold, at least 25% of the shares of Registrable Common Stock
requested to be included therein.  In no event shall the Company be
obligated to effect more than two (2) Demand Registrations hereunder or
under the Other Registration Rights Agreements in any single twelve (12) month
period, with the first such period measured from the date of the first Demand
Registration and ending on the same date twelve months following such Demand
Registration, whether or not a Business Day; provided, however, that if (i) the Company is
requested to effect a Demand Registration under this Agreement which is not
otherwise designated by the Shareholder to be a “shelf” registration statement
and (ii) is also requested to effect one or more Demand Registrations (as
such term is defined in each of the Other Registration Rights Agreements)
pursuant to the Other Registration Rights


 


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Agreements within any eighteen (18) month period
during which the Corporation is eligible to file a registration statement on Form S-3
or on a successor form, then the Company shall only be obligated with respect
to such latter registration statement during such period to register that
percentage of the Registrable Common Stock equal to the product obtained by
dividing (i) the number of shares of Registrable Common Stock held by the
Shareholder by (ii) the total number of shares of Registrable Common Stock
covered under this Agreement and all of the Other Registration Rights
Agreements.  The Company may (i) postpone for up to ninety (90) days
the filing or the effectiveness of a Registration Statement for a Demand Registration
if, based on the good faith judgment of the Company’s board of directors, such
postponement or withdrawal is necessary in order to avoid premature disclosure
of a matter the board has determined would be reasonably expected to result in
a material adverse effect to the Company’s business, financial condition,
results of operations or prospects or the loss of a material opportunity to be
disclosed at such time or (ii) postpone the filing of a Demand
Registration in the event the Company shall be required to prepare audited
financial statements as of a date other than its fiscal year end (unless the
stockholders requesting such registration agree to pay the expenses of such an
audit); provided, however, that in no event shall the Company withdraw a Registration
Statement under clause (i) after such Registration Statement has been
declared effective; and provided, further, however, that in any of the events
described in clause (i) or (ii) above, the Shareholder shall be
entitled to withdraw such request and, if such request is withdrawn, such
Demand Registration shall not count as one of the permitted Demand
Registrations. The Company shall provide written notice to the Shareholder of
(x) any postponement or withdrawal of the filing or effectiveness of a Registration
Statement pursuant to this Section 2(e), (y) the Company’s decision to
file or seek effectiveness of such Registration Statement following such
withdrawal or postponement and (z) the effectiveness of such Registration
Statement. The Company may defer the filing of a particular Registration
Statement pursuant to this Section 2(d) only once.


 


(f)                                    Selection of Underwriters.  If any of the Registrable Common
Stock covered by a Demand Registration or a Shelf Registration pursuant to Section 4
hereof is to be sold in an underwritten offering, the Shareholder, if it is the
Holder who instructed the Demand Registration or Shelf Registration, or in the
case of a transaction representing a “shelf takedown”, the Holder initiating
such transaction, shall have the right to select the managing underwriter(s) to
administer the offering subject to the approval of the Company, which will not
be unreasonably withheld; provided,
however, that the Company shall have the right to select the
managing underwriter, subject to the approval of the Holder, which shall not be
unreasonably withheld, in the event of any underwritten offering pursuant to a
Demand Registration or “shelf takedown” where the Company is bearing the
expenses of such Demand Registration or “shelf takedown”.


 


(g)                                 Effective Period of Demand Registrations.  After any Demand Registration filed
pursuant to this Agreement has become effective, the Company shall use its best
efforts to keep such Demand Registration effective until such time as the
Registrable Common Stock registered thereon has been disposed of pursuant
thereto.  If the Company shall withdraw any Demand Registration pursuant
to subsection (e) of this


 


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Section 2 before any of the Shareholders Registrable
Common Shares covered by the withdrawn Demand Registration are unsold (a “Withdrawn
Demand Registration”), the Shareholder shall be entitled to a replacement
Demand Registration that (subject to the provisions of this Article 2) the
Company shall use its best efforts to keep effective until such time as the
Registrable Common Stock registered thereon has been disposed of pursuant
thereto.  Such additional Demand Registration otherwise shall be subject
to all of the provisions of this Agreement.


 


(h)                                 Other Company Stock.  In no event
shall the Company agree to register Common Stock or any other securities for
issuance by the Company or for resale by any Persons other than the Shareholder
in any registration statement filed pursuant to Section 2(b), without the
express written consent of the Shareholder., which consent shall be entirely
discretionary.


 


(i)                                     Conversion to Form S-3.  In the event that at any time a
Demand Registration Statement is in effect and the Company is eligible to
register on Form S-3 or any successor thereto then available, the Company
shall as promptly as reasonably practicable convert such registration statement
to Form S-3 or such successor form.


 


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3.                                       PIGGYBACK REGISTRATIONS.


 


(a)                                  Right to Piggyback.  At any time after the Redemption
Date, whenever the Company proposes to register any of its common equity
securities under the Securities Act (other than the Initial Registration
Statement, or a registration statement on Form S-8 or on Form S-4 or
any similar successor forms thereto), whether for its own account or for the
account of one or more stockholders of the Company, and the registration form
to be used may be used for any registration of Registrable Common Stock (a “Piggyback
Registration”), the Company shall give prompt written notice (in any event
within 10 business days after its receipt of notice of any exercise of other
demand registration rights) to the Holder of its intention to effect such a
registration and, subject to Sections 3(b) and 3(c), shall include in such
registration all Registrable Common Stock of the Shareholder with respect to
which the Company has received written requests for inclusion therein within 20
days after the receipt of the Company’s notice. The Company may postpone or
withdraw the filing or the effectiveness of a Piggyback Registration at any
time in its sole discretion.


 


(b)                                 Priority on Primary Registrations.  If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
that can be sold in such offering and/or that the number of shares of Registrable
Common Stock proposed to be included in any such registration would adversely
affect the price per share of the Company’s equity securities to be sold in
such offering, the underwriting shall be allocated among the Company and all
Holders pro rata on the basis of the Common Stock and Registrable Common Stock
offered for such registration by the Company and each Holder, respectively,
electing to participate in such registration.


 


(c)                                  Priority on Secondary Registrations.  If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company’s
securities other than Registrable Common Stock (“Non-Holder Securities”), and
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number that can be sold in such offering and/or that the number of shares
of Registrable Common Stock proposed to be included in any such registration
would adversely affect the price per share of the Company’s equity securities
to be sold in such offering, the underwriting shall be allocated among the
holders of Non-Holder Securities and all Holders pro rata on the basis of the
Non-Holder Securities and Registrable Common Stock offered for such
registration by the holder of Non-Holder Securities and each Holder,
respectively, electing to participate in such registration.


 


(d)                                 Selection of Underwriters.  If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.


 


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(e)                                  Other Registrations.  If the Company has previously filed a
Registration Statement with respect to shares of Registrable Common Stock
pursuant to Sections 2 (other than Section 2(a)) or 4 hereof or pursuant
to this Section 3, and if such previous registration has not been
withdrawn or abandoned, the Company shall not be obligated to cause to become
effective any other registration of such same shares of Registrable Common
Stock or any of its securities under the Securities Act, whether on its own
behalf or at the request of any holder or holders of such securities.


 


4.                                       SHELF REGISTRATIONS.


 


(a)                                  After the Redemption Date, at the Holder’s
election (such election to be made if the Holder may not elect to exercise any
Demand Registrations, subject to Section 4(b) below), if at any time
that the Company is eligible to use Form S-3 or any successor thereto then
available to the Company providing for the resale pursuant to Rule 415
from time to time by the Shareholder of any and all Registrable Common Stock
held by the Shareholder (a “Shelf Registration Statement”) the Shareholder
requests that the Company file a Shelf Registration Statement for a public
offering of all or any portion of the Registrable Common Stock held by the
Holder, then the Company shall use its best efforts to register under the
Securities Act pursuant to a Shelf Registration Statement, for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Registrable Common Stock specified in such notice. Whenever the
Company is required by this Section 4 to use its best efforts to effect
the registration of Registrable Common Stock, each of the procedures and
requirements of Section 2 (including but not limited to the requirement
that the Company notify all Holders from whom notice has not been received and
provide them with the opportunity to participate in the offering) shall apply
to such registration. The Company shall use its commercially reasonable efforts
to keep the Shelf Registration Statement effective until the earliest to occur
of the date on which all of the Registrable Common Stock ceases to be Registrable
Common Stock.


 


(b)                                 If at any time the Company is not eligible to
use a Shelf Registration Statement, a Holder may during such time exercise
Demand Registration Rights, regardless of any previous exercise of their rights
under Section 4(a).


 


(c)                                  A filing pursuant to this Section 4
shall not relieve the Company of any obligation to effect registration of
Registrable Common Stock pursuant to Section 2 or Section 3 hereof,
except as provided therein.


 


5.                                       REGISTRATION PROCEDURES.


 


Whenever the Holder requests
that any of its Registrable Common Stock be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration
and the sale of such Registrable Common Stock in accordance with the intended
methods of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:


 


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(a)                                  prepare and file with the SEC a Registration
Statement with respect to such Registrable Common Stock and use its best efforts
to cause such Registration Statement to become effective as soon as practicable
thereafter; and before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the Shareholder and the
underwriter or underwriters, if any, copies of all such documents proposed to
be filed, including documents incorporated by reference in the Prospectus and,
if requested by the Shareholder, the exhibits incorporated by reference, and
the Shareholder shall have the opportunity to object to any information
pertaining to the Shareholder that is contained therein and the Company will
make the corrections reasonably requested by the Shareholder with respect to
such information prior to filing any Registration Statement or amendment thereto
or any Prospectus or any supplement thereto;


 


(b)                                 prepare and file with the SEC such amendments
and supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for such period as is necessary to complete the distribution of the
securities covered by such Registration Statement and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement;


 


(c)                                  furnish to each seller of Registrable Common
Stock such number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration Statement
(including each preliminary Prospectus) and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Common Stock owned by such seller;


 


(d)                                 use its commercially reasonable efforts to
become and remain eligible to file registration statements on Form S-3 or
any successor thereto then available, and if applicable to utilize “well known
seasoned issuer status”, and to register or qualify such Registrable Common
Stock under such other securities or blue sky laws of such jurisdictions as any
seller reasonably requests and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Common Stock owned by such
seller (provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph (d), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);


 


(e)                                  notify each seller of such Registrable Common
Stock, at any time when a Prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of any event as a result
of which the Prospectus included in such Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and prepare a supplement or amendment to
such Prospectus so that such Prospectus shall not contain an untrue statement
of a


 


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material fact or omit to state any material fact
necessary to make the statements therein not misleading;


 


(f)                                    in the case of an underwritten offering,
enter into such customary agreements together with the Operating Partnership
(including underwriting agreements in customary form) and take all such other
actions as the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Common Stock (including, without
limitation, effecting a stock split or a combination of shares and making
members of senior management of the Company available to participate in, and
cause them to cooperate with the underwriters in connection with, “road-show”
and other customary marketing activities (including one-on-one meetings with
prospective purchasers of the Registrable Common Stock)) and cause to be
delivered to the underwriters and the sellers, if any, opinions of counsel to
the Company and the Operating Partnership in customary form, as well as closing
certificates and other customary documents covering such matters as are
customarily covered by opinions for and certificates in an underwritten public
offering as the underwriters may request and addressed to the underwriters and
the sellers; provided, however,
 that notwithstanding anything else contained in this Agreement, the
Company shall not be obligated to effect an aggregate of more than three
underwritten offerings or participate in more than two “road shows” (which, for
the purposes of this sentence shall not include presentations that involve only
telephonic or internet-based marketing and do not require any travel by the
Company’s management) in any twenty-four (24) month period, and not more than
one underwritten offering every six (6) months under this Agreement or
under the Other Registration Rights Agreements; and provided further, however, that if an underwritten
public offering (including a public sale to a registered broker-dealer) is
effected at the request of Apollo or First Union under the Other Registration
Rights Agreements, the Shareholder shall have the right to participate in such
offering, and Apollo shall have the right to participate in any underwritten
public offering effected at the request of the Shareholder under this
Agreement; and if the managing underwriters or broker-dealers of any such
underwritten offering advise Vornado, First Union and the Holder in writing
that in their opinion the number of shares of Registrable Common Stock proposed
to be included in any such offering exceeds the number of securities that can
be sold in such offering and/or that the number of shares of Registrable Common
Stock proposed to be included in any such offering would materially adversely
affect the price per share of the Company’s equity securities to be sold in
such offering, Vornado, First Union and the Holder shall include in such
offering only the number of shares of Registrable Common Stock that, in the
opinion of such managing underwriters (or registered broker-dealer), can be
sold.  If the number of shares that can be sold exceeds the number of
shares of Registrable Common Stock proposed to be sold, such excess shall be
allocated pro rata among the holders of Common Stock desiring to participate in
such offering based on the amount of such Common Stock initially requested to
be registered by such holders or as such holders may otherwise agree.


 


Only Vornado, the
Shareholder, First Union, and their affiliates holding Registrable Common Stock
shall be entitled to participate in any public underwritten offerings pursuant
to this Agreement with respect to Registrable Common Stock (which


 


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for purposes of this paragraph (f) includes
Registrable Common Stock as defined in the Other Registration Rights
Agreements)


 


If any of Vornado, the
Shareholder or First Union determines not to participate in an underwritten
offering with respect to which it is entitled hereunder to participate in
hereunder or under the Other Registration Rights Agreements, then the
non-participating party shall agree to such lockup period with respect to its
Common Stock as the managing underwriters or broker dealer deems reasonably
necessary for purposes of effecting the public offering.


 


(g)                                 make available, for inspection by any seller
of Registrable Common Stock, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company’s officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such Registration Statement;


 


(h)                                 to use its best efforts to cause all such
Registrable Common Stock to be listed on each securities exchange on which
securities of the same class issued by the Company are then listed or, if no
such similar securities are then listed, on Nasdaq or a national securities
exchange selected by the Company;


 


(i)                                     provide a transfer agent and registrar for
all such Registrable Common Stock not later than the effective date of such
Registration Statement;


 


(j)                                     if requested, cause to be delivered, immediately
prior to the effectiveness of the Registration Statement (and, in the case of
an underwritten offering, at the time of delivery of any Registrable Common
Stock sold pursuant thereto), letters from the Company’s independent certified
public accountants addressed to the Shareholder (unless the Shareholder does
not provide to such accountants the appropriate representation letter required
by rules governing the accounting profession) and each underwriter, if
any, stating that such accountants are independent public accountants within
the meaning of the Securities Act and the applicable rules and regulations
adopted by the SEC thereunder, and otherwise in customary form and covering
such financial and accounting matters as are customarily covered by letters of
the independent certified public accountants delivered in connection with
primary or secondary underwritten public offerings, as the case may be;


 


(k)                                  make generally available to its stockholders
a consolidated earnings statement (which need not be audited) for the 12 months
beginning after the effective date of a Registration Statement as soon as
reasonably practicable after the end of such period, which earnings statement
shall satisfy the requirements of an earning statement under Section 11(a) of
the Securities Act;


 


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(l)                                     promptly notify the Shareholder and the
underwriter or underwriters, if any:


 


(i)                                     when the Registration Statement, any
pre-effective amendment, the Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement has been filed and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective;


 


(ii)                                  of any SEC comments applicable to the
Registration Statement or Prospectus or written request from the SEC for any
amendments or supplements to the Registration Statement or Prospectus;


 


(iii)                               of the notification to the Company by the SEC
of its initiation of any proceeding with respect to the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement;


 


(iv)                              of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Common Stock for sale under the applicable securities or blue sky
laws of any jurisdiction;


 


(v)                                 of the existence of, any fact or the
happening of any event that makes any statement of material fact made in any
registration statement filed pursuant to this Agreement or related prospectus
untrue in any material respect, or that requires the making of any changes in
such registration statement so that, in the case of the registration statement,
it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading and that, in the case of the prospectus, such
prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and


 


(vi)                              of the determination by the Company that a
post-effective amendment to a registration statement filed pursuant to this
Agreement will be filed with the SEC.


 


The Company shall file all
reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder, and take
such further action as the Shareholder may reasonably request, all to the
extent required to enable the Shareholder to be eligible to sell Registrable
Common Stock pursuant to Rule 144 (or any similar rule then in
effect).


 


In connection with any
registration pursuant to which any of a Holder’s Registrable Common Stock is to
be sold, the Company may require that the Holder furnish to the Company any
other information regarding the Holder and the distribution of such securities
as the Company may from time to time reasonably request in writing.


 


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The Holders agree by having
their stock treated as Registrable Common Stock hereunder that, upon notice of
the happening of any event described in l(v) above (a “Suspension Notice”),
the Holders will forthwith discontinue disposition of Registrable Common Stock
until the Shareholder is advised in writing by the Company that the use of the
Prospectus may be resumed and is furnished with a supplemented or amended
Prospectus as contemplated by Section 5(e) hereof, and, if so
directed by the Company, the Holders will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in the
Holder’s possession, of the Prospectus covering such Registrable Common Stock
current at the time of receipt of such notice; provided, however, that such
postponement of sales of Registrable Common Stock shall not exceed ninety (90)
days in the aggregate in any one year; provided, further, however, that not
later than the last day of such ninety (90) day period or such shorter period
as may apply, the Company shall have provided to the Holders a supplemented or
amended Prospectus as contemplated by Section 5(e) hereof.  If
the Company shall give any notice to suspend the disposition of Registrable
Common Stock pursuant to a Prospectus, the Company shall extend the period of
time during which the Company is required to maintain the Registration
Statement effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and
including the date the Shareholder either is advised by the Company that the
use of the Prospectus may be resumed or receives the copies of the supplemented
or amended Prospectus contemplated by Section 5(e). In any event, the
Company shall not be entitled to deliver more than one (1) Suspension
Notice in any one year.


 


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6.                                       REGISTRATION EXPENSES.


 


(a)                                  All expenses incident to the Company’s
performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, , underwriting discounts and
commissions, NASD fees, fees and expenses of compliance with securities or blue
sky laws, listing application fees, printing expenses, transfer agent’s and
registrar’s fees, cost of distributing Prospectuses in preliminary and final
form as well as any supplements thereto, and fees and disbursements of counsel
for the Company and all independent certified public accountants and other
Persons retained by the Company (all such expenses being herein called “Registration
Expenses”), shall be borne by the Shareholder; provided, however, that the Company shall bear the
expenses, exclusive of underwriting discounts and commissions, incident to the
Initial Registration Statement, one Registration Statement filed pursuant to Section 4(a),
including up to three “shelf takedowns” or offerings pursuant to Rule 430A
under the Securities Act, if applicable, and up to three Demand Registrations
pursuant to Section 2(b), but in no event shall the Company be obligated
to bear the expense of more than three offerings (exclusive of the expenses
incident to the Initial Registration Statement and one Registration Statement
filed pursuant to Section 4(a)) pursuant to this Section 6(a) (or
four offerings if the Shareholder is unable, through its commercially
reasonable efforts, to dispose of all its Registrable Common Stock after such
three offerings).  The Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), and the expense of any annual audit or
quarterly review, and the expense of any liability insurance.


 


7.                                       INDEMNIFICATION.


 


(a)                                  The Company and the Operating Partnership
shall indemnify, to the fullest extent permitted by law, each Holder, its
officers, directors, trustees, partners, and Affiliates and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, expenses and liabilities, joint or several, actions or
proceedings, to which each such indemnified party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions or proceedings in respect thereof) arise out of or
based upon any untrue or alleged untrue statement of material fact contained in
any Registration Statement, Prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading or
any violation or alleged violation by the Company of the Securities Act, the
Exchange Act or applicable “blue sky” laws and the Company and the Operating Partnership
will reimburse each such Holder and each such director, trustee, officer,
partner, agent, employee or affiliate, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, expense, liability
action or proceeding, except insofar as the same are made in reliance and in
conformity with information relating to the Shareholder furnished in writing to
the Company by the Shareholder expressly for use therein or caused by the
Shareholder’s failure to deliver to the Shareholder’s immediate purchaser a
copy of the Registration Statement or Prospectus


 


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or any amendments or supplements thereto (if the
same was required by applicable law to be so delivered) after the Company has
furnished the Shareholder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Shareholder.


 


(b)                                 In connection with any Registration Statement
in which the Shareholder is participating, the Shareholder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, shall indemnify, to the fullest extent permitted by law, the
Company, its officers, directors, Affiliates, and each Person who controls the
Company (within the meaning of the Securities Act) against all losses, claims,
damages, expenses and liabilities joint or several, actions or proceedings, to
which each such indemnified party may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages, expenses or liabilities
(or actions or proceedings in respect thereof) arise out of or based upon any
untrue or alleged untrue statement of material fact contained in the
Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the Holder will reimburse each of the Company and the
Operating Partnership and each such director, trustee, officer, partner, agent,
employee or affiliate, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, expense, liability action or
proceeding, but only to the extent that the same are made in reliance and in
conformity with information relating to the Shareholder furnished in writing to
the Company by the Shareholder expressly for use therein or caused by the
Shareholder’s failure to deliver to the Shareholder’s immediate purchaser a
copy of the Registration Statement or Prospectus or any amendments or
supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished the Shareholder with a sufficient
number of copies of the same.


 


(c)                                  Any Person entitled to indemnification
hereunder shall (i) give prompt written notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) unless
in such indemnified party’s reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party there may be one or more legal or equitable
defenses available to such indemnified party which are in addition to or may
conflict with those available to another indemnified party with respect to such
claim.


 


15





















 


Failure to give prompt written notice shall not
release the indemnifying party from its obligations hereunder.


 


(d)                                 The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities.


 


(e)                                  If the indemnification provided for in or
pursuant to this Section 7 is due in accordance with the terms hereof, but
is held by a court to be unavailable or unenforceable in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified Person as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection with
the statements or omissions which result in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable considerations.
The relative fault of the indemnifying party on the one hand and of the
indemnified Person on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party, and
by such party’s relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. In no event shall
the liability of any selling Holder be greater in amount than the amount of net
proceeds received by such Holder upon such sale or the amount for which such
indemnifying party would have been obligated to pay by way of indemnification
if the indemnification provided for under Section 7(a) or 7(b) hereof
had been available under the circumstances.


 


(f)                                    In the event that advances
are not made pursuant to this Section 8 or payment has not otherwise been
timely made, each indemnified party shall be entitled to seek a final
adjudication in an appropriate court of competent jurisdiction of the
entitlement of the indemnified party to indemnification or advances hereunder.


 


The Company, the Operating Partnership and the Holders
agree that they shall be precluded from asserting that the procedures and
presumptions of this Section 7 are not valid, binding and
enforceable.  The Company, the Operating Partnership and the Holders
further agree to stipulate in any such court that the Company, the Operating
Partnership, and the Holders are bound by all the provisions of this Section 7
and are precluded from making any assertion to the contrary.


 


To the extent deemed appropriate by the court, interest
shall be paid by the indemnifying party to the indemnified party at a
reasonable interest rate for amounts which the indemnifying party has not
timely paid as the result of its indemnification and contribution obligations
hereunder.


 


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In the event that any indemnified
party is a party to or intervenes in any proceeding to which the validity or
enforceability of this Section 7 is at issue or seeks an adjudication to
enforce the rights of any indemnified party under, or to recover damages for
breach of, this Section 7, the indemnified party, if the indemnified party
prevails in whole in such action, shall be entitled to recover from the
indemnifying party and shall be indemnified by the indemnifying party against,
any expenses incurred by the indemnified party.  If it is determined that
the indemnified party is entitled to indemnification for part (but not all) of
the indemnification so requested, expenses incurred in seeking enforcement of
such partial indemnification shall be reasonably prorated among the claims,
issues or matters for which the indemnified party is entitled to
indemnification and for such claims, issues or matters for which the
indemnified party is not so entitled.


 


The indemnity agreements
contained in this Section 7 shall be in addition to any other rights (to
indemnification, contribution or otherwise) which any indemnified party may
have pursuant to law or contract and shall remain operative and in full force
and effect regardless of any investigation made or omitted by or on behalf of
any indemnified party and shall survive the transfer of any Registrable Common
Stock by any Holder.


 


8.                                       PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.


 


No Person may participate in
any registration hereunder that is underwritten unless such Person (a) agrees
to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.


 


9.                                       RULE 144.


 


The Company covenants that
it will file the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC
thereunder, and it will take such further action as the Shareholder may reasonably
request to make available adequate current public information with respect to
the Company meeting the current public information requirements of Rule 144(c) under
the Securities Act (to the extent such information is available), to the extent
required to enable the Shareholder to sell Registrable Common Stock without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of the Shareholder, the Company
will deliver to the Shareholder a written statement as to whether it has
complied with such information and requirements.


 


10.                                 MISCELLANEOUS.


 


(a)                                  Notices.  All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and
shall be given,


 


17





















 


	
   

  	
  If to the Company:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Newkirk Realty Trust, Inc.

  
	
   

  	
   

  	
  7 Bulfinch Place

  
	
   

  	
   

  	
  Suite 500

  
	
   

  	
   

  	
  Boston, Massachusetts
  02114

  
	
   

  	
   

  	
  Attn: Carolyn Tiffany

  
	
   

  	
   

  	
  Fax: (617) 742-4643

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Katten Muchin Rosenman

  
	
   

  	
   

  	
  575 Madison Avenue

  
	
   

  	
   

  	
  New York, New York 10022

  
	
   

  	
   

  	
  Attn: Mark I. Fisher

  
	
   

  	
   

  	
  Fax: (212) 940-8776

  
	
   

  	
   

  	
   

  
	
   

  	
  If to the Shareholder:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Apollo Real
  Estate Investment Fund III, L.P.

  
	
   

  	
   

  	
  60 Columbus
  Circle

  
	
   

  	
   

  	
  20th
  Floor

  
	
   

  	
   

  	
  New York,
  New York 10023

  
	
   

  	
   

  	
  Attn: Stuart
  Koenig

  
	
   

  	
   

  	
  Fax: (212)
  515-3283

  



 


or such other address or facsimile number as such
party (or transferee) may hereafter specify for the purpose by notice to the
other parties. Each such notice, request or other communication shall be
effective (a) if given by facsimile, when such facsimile is transmitted to
the facsimile number specified in this Section and the appropriate
facsimile confirmation is received or (b) if given by any other means,
when delivered at the address specified in this Section.


 


(b)                                 No Waivers.  No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.


 


(c)                                  Expenses.  Except as otherwise provided for herein or otherwise agreed to
in writing by the parties, all costs and expenses incurred in connection with
the preparation of this Agreement shall be paid by the Company.


 


(d)                                 Successors and Assigns.  The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided,
however, that neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party,
except that the Shareholder may assign its rights hereunder to any Affiliate.


 


18





















 


(e)                                  Governing Law.  This Agreement shall be construed in
accordance with and governed by the law of the State of New York, without
regard to principles of conflicts of law.


 


(f)                                    Jurisdiction.  Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby may
be brought in any federal or state court located in the County and State of New
York, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any such
suit, action or proceeding which is brought in any such court has been brought
in an inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 10(a) shall
be deemed effective service of process on such party.


 


(g)                                 Waiver of Jury Trial.


 


EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


(h)                                 Counterparts; Effectiveness.  This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.


 


(i)                                     Entire Agreement.  This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the transactions contemplated
herein. No provision of this Agreement or any other agreement contemplated
hereby is intended to confer on any Person other than the parties hereto any
rights or remedies.


 


(j)                                     Captions.  The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.


 


(k)                                  Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such
a determination, the parties shall negotiate in good faith to modify this
Agreement


 


19





















 


so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.


 


(l)                                     Amendments.  The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given without the
prior written consent of the parties hereto.


 


(m)                               Aggregation of Stock.  All Registrable Common Stock held by
or acquired by any Affiliated Persons will be aggregated together for the
purpose of determining the availability of any rights under this Agreement.


 


(n)                                 Equitable Relief.  The parties hereto agree that legal
remedies may be inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.


 


(o)                                 No Inconsistent Agreements.  None of the
Company or the Operating Partnership has entered and neither of them will enter
into any agreement that is inconsistent with the rights granted to the
Shareholder in this Agreement or that otherwise conflicts with the provisions
hereof.  The rights granted to the Shareholder hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company’s or the Operating Partnership’s other issued and outstanding
securities under any such agreements. From and after the date of this
Agreement, neither the Company nor the Operating Partnership will enter into
any agreement with any holder or prospective holder of any securities of the
Company or the Operating Partnership which would grant such holder or
prospective holder more favorable rights than those granted to the Shareholder
hereunder or substantially similar or equivalent rights to those granted to the
Shareholder.  Notwithstanding the foregoing, the provisions of this Section 10(o)
shall not apply to the Other Registration Rights Agreements.


 


(p)                                 No Adverse Action Affecting the Registrable
Common Stock.  Neither
the Company nor the Operating Partnership shall take any action with respect to
the Registrable Common Stock with an intent to adversely affect or that does
adversely affect the ability of any of the Holders to include such Registrable
Common Stock in a registration undertaken pursuant to this Agreement or their
offer and sale.  Notwithstanding the foregoing, the provisions of this Section 10(p)
shall not apply to the Other Registration Rights Agreements.


 


IN WITNESS WHEREOF, this
Registration Rights Agreement has been duly executed by each of the parties
hereto as of the date first written above.


 


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