(Y) THE PER PARTNERSHIP UNIT PRICE AT WHICH SUCH
PARTNERSHIP UNITS ARE SOLD OR, IF CONVERTED, THE PER SHARE CLOSING PRICE OF
COMMON STOCK ON THE DAY ON WHICH SUCH PARTNERSHIP UNITS ARE CONVERTED.
"BASE AMOUNT" - AS OF ANY DATE, MEANS THE GREATER OF (I) $650,000,000 OR (II) AN
AMOUNT EQUAL TO (1) THE GROSS PROCEEDS TO NEWKIRK IN THE IPO AND THE SALE OF
COMMON STOCK TO FIRST UNION PURSUANT TO THE SECURITIES PURCHASE AGREEMENT DATED
OF EVEN DATE HEREWITH BETWEEN NEWKIRK AND FIRST UNION PLUS (2) $209,116,000 [THE
BOOK VALUE OF PARTNERS EQUITY IN THE OPERATING PARTNERSHIP AT JUNE 30, 2005]
PLUS (3) THE GROSS PROCEEDS OF ANY SUBSEQUENT ISSUANCE OF COMMON EQUITY
SECURITIES MINUS (4) ALL CASH AMOUNTS PAID BY THE COMPANY TO REPURCHASE ANY
COMMON EQUITY SECURITIES (OTHER THAN THE AMOUNTS USED FROM THE PROCEEDS OF THE
IPO TO PURCHASE PARTNERSHIP UNITS FROM EXISTING LIMITED PARTNERS).
"Board" - the Board of Directors of Newkirk.
"CAUSE" - MEANS:
(I) THE ADVISOR'S CONTINUOUS AND INTENTIONAL FAILURE TO
PERFORM ITS DUTIES UNDER THIS AGREEMENT AFTER WRITTEN NOTICE FROM THE COMPANY TO
THE ADVISOR OF SUCH NON-PERFORMANCE; (II) THE ADVISOR COMMITS ANY ACT OF GROSS
NEGLIGENCE IN THE PERFORMANCE OF ITS DUTIES UNDER THIS AGREEMENT; (III) THE
ADVISOR COMMITS ANY ACT OF FRAUD, MISAPPROPRIATION OF FUNDS, OR EMBEZZLEMENT
AGAINST THE COMPANY; (IV) THE ADVISOR COMMITS ANY OTHER WILLFUL AND INTENTIONAL
MISCONDUCT WHICH IS MATERIALLY INJURIOUS TO THE COMPANY, MONETARILY OR
OTHERWISE; (V) THE ADVISOR DEFAULTS IN THE PERFORMANCE OR OBSERVANCE OF ANY
MATERIAL TERM, CONDITION OR COVENANT CONTAINED IN THIS AGREEMENT TO BE PERFORMED
OR OBSERVED ON ITS PART, AND SUCH DEFAULT CONTINUES FOR A PERIOD OF THIRTY
(30) DAYS AFTER WRITTEN NOTICE THEREOF FROM THE COMPANY SPECIFYING SUCH DEFAULT
AND REQUESTING THAT THE SAME BE REMEDIED WITHIN SUCH THIRTY (30) DAY PERIOD;
PROVIDED, HOWEVER, THE ADVISOR SHALL HAVE AN ADDITIONAL SIXTY (60) DAYS TO CURE
SUCH DEFAULT IF (A) SUCH DEFAULT CANNOT REASONABLY BE CURED WITH IN THIRTY
(30) DAYS BUT CAN BE CURED WITHIN NINETY (90) DAYS, AND (B) THE ADVISOR SHALL
HAVE COMMENCED TO CURE SUCH DEFAULT WITHIN THE INITIAL THIRTY (30) DAY PERIOD
AND THEREAFTER DILIGENTLY PROCEEDS TO CURE THE SAME WITHIN NINETY (90) DAYS OF
THE DATE OF THE COMPANY'S ORIGINAL NOTICE OF THE DEFAULT; (VI) AN ADVISOR CHANGE
IN CONTROL; OR (VII) MICHAEL L. ASHNER IS NO LONGER CHIEF EXECUTIVE OFFICER OF
THE ADVISOR (PROVIDED SUCH CONDITION IS NOT A RESULT OF MICHAEL ASHNER'S DEATH
OR DISABILITY).
"Code" - Internal Revenue Code of 1986, as amended.
"COMMON STOCK" - MEANS SHARES OF COMMON STOCK OF NEWKIRK.
2
"Common Equity Securities" - means Common Stock and Partnership Units which may
be redeemed for Common Stock pursuant to the terms of the Partnership Agreement.
"Control" - means the direct or indirect ownership of at least 51% of the
beneficial equity interests and voting power of an entity.
"EQUITY SECURITIES" - REIT EQUITY SECURITIES AND OPERATING PARTNERSHIP EQUITY
SECURITIES.
"Exchange Act" - Securities Exchange Act