Exhibit 10.13


 


CONTRIBUTION AGREEMENT


 


BY AND AMONG


 


ECM REALTY TRUST, INC.,


 


ECM REALTY TRUST, L.P.,


 


WILDWOOD CROSSING, INC.,


 


DELLWOOD ACQUISITIONS, INC.


 


AND


 


JAMES G. KOMAN, TRUSTEE OF THE JAMES G. KOMAN REVOCABLE TRUST UTA DATED
JANUARY 31, 1997


 


DATED AS OF AUGUST 25, 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
  CONTRIBUTION
  OF INTERESTS IN EXCHANGE FOR UNITS

  	
  2

  
	
  Section 1.1

  	
   

  	
  Contribution Transactions

  	
  2

  
	
  Section 1.2

  	
   

  	
  Consideration for Participating Entity Interests

  	
  3

  
	
  Section 1.3

  	
   

  	
  Adjusted Consideration; Risk of Loss

  	
  3

  
	
  Section 1.4

  	
   

  	
  Allocation of Consideration

  	
  4

  
	
  Section 1.5

  	
   

  	
  Tax Treatment of Contribution

  	
  4

  
	
  Section 1.6

  	
   

  	
  Taxes

  	
  4

  
	
  Section 1.7

  	
   

  	
  Other Tax Matters -
  Section 704(c) Method

  	
  4

  
	
  Section 1.8

  	
   

  	
  Guaranty of Certain Debt of Operating Partnership

  	
  5

  
	
  ARTICLE 2

  	
   

  	
  CLOSING

  	
  5

  
	
  Section 2.1

  	
   

  	
  Conditions Precedent

  	
  5

  
	
  Section 2.2

  	
   

  	
  Date, Time and Place of Closing

  	
  6

  
	
  Section 2.3

  	
   

  	
  Closing Deliveries

  	
  7

  
	
  Section 2.4

  	
   

  	
  Closing Costs

  	
  8

  
	
  ARTICLE 3

  	
   

  	
  REPRESENTATIONS AND WARRANTIES AND INDEMNITIES

  	
  8

  
	
  Section 3.1

  	
   

  	
  Representations and Warranties of the Company and
  the Operating Partnership

  	
  8

  
	
  Section 3.2

  	
   

  	
  Representations and Warranties of the Contributors

  	
  10

  
	
  Section 3.3

  	
   

  	
  Indemnification

  	
  17

  
	
  ARTICLE 4

  	
   

  	
  COVENANTS
  OF CONTRIBUTORS

  	
  20

  
	
  Section 4.1

  	
   

  	
  Negative Covenants

  	
  20

  
	
  Section 4.2

  	
   

  	
  Affirmative Covenants

  	
  21

  
	
  ARTICLE 5

  	
   

  	
  RELEASE AND WAIVER

  	
  23

  
	
  ARTICLE 6

  	
   

  	
  MISCELLANEOUS

  	
  23

  
	
  Section 6.1

  	
   

  	
  Further Assurances

  	
  23

  
	
  Section 6.2

  	
   

  	
  Counterparts

  	
  23

  
	
  Section 6.3

  	
   

  	
  Governing Law, Venue

  	
  23

  
	
  Section 6.4

  	
   

  	
  Amendment; Waiver

  	
  24

  
	
  Section 6.5

  	
   

  	
  Entire Agreement

  	
  24

  
	
  Section 6.6

  	
   

  	
  Assignability

  	
  24

  
	
  Section 6.7

  	
   

  	
  Titles

  	
  24

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.8

  	
   

  	
  Third
  Party Beneficiary

  	
  24

  
	
  Section 6.9

  	
   

  	
  Severability

  	
  24

  
	
  Section 6.10

  	
   

  	
  Equitable
  Remedies

  	
  24

  
	
  Section 6.11

  	
   

  	
  Time
  of the Essence

  	
  25

  
	
  Section 6.12

  	
   

  	
  Reliance

  	
  25

  
	
  Section 6.13

  	
   

  	
  Survival

  	
  25

  
	
  Section 6.14

  	
   

  	
  Notice

  	
  25

  
	
  Section 6.15

  	
   

  	
  Termination

  	
  25

  
	
  Section 6.16

  	
   

  	
  Confidentiality

  	
  25

  
	
  Section 6.17

  	
   

  	
  Joint
  Preparation

  	
  26

  



 


ii

















 


TABLE OF CONTENTS


Exhibits


 


	
  Exhibit A

  	
  List of Properties

  
	
  Exhibit B

  	
  Definitions

  
	
  Exhibit C

  	
  Contribution and Assumption Agreement

  
	
  Exhibit D

  	
  Consideration

  
	
  Exhibit E

  	
  Qualifying Debt

  
	
  Exhibit F

  	
  Certification of Non-Foreign Status

  



 


Disclosure
Schedules


 


	
  Schedule
  3.2(c)

  	
  Consents
  and Approvals

  
	
  Schedule
  3.2(n)

  	
  Environmental
  Compliance

  



 


iii

















 


CONTRIBUTION AGREEMENT


 


THIS
CONTRIBUTION AGREEMENT (including all exhibits and schedules, this “Agreement”)
is made and entered into as of August 25, 2010, by and among (i) ECM
REALTY TRUST, INC., a Maryland corporation (the “Company”), (ii) ECM
REALTY TRUST, L.P., a Delaware limited partnership and a subsidiary of the
Company (the “Operating Partnership”), (iii) WILDWOOD CROSSING, INC.,
a Missouri corporation (“Wildwood Crossing”), (iv) DELLWOOD
ACQUISITIONS, INC., a Missouri corporation (“Dellwood Acquisitions”),
and (v) JAMES E. KOMAN, TRUSTEE OF THE JAMES G. KOMAN REVOCABLE TRUST UTA
DATED JANUARY 31, 1997 (the “Trust”). 
Each of Wildwood Crossing, Dellwood Acquisitions and the Trust is a “Contributor”
and are referred to collectively as “Contributors”.


 


RECITALS


 


A.            The Company,
which is the sole general partner of the Operating Partnership, desires to
consolidate the ownership of a portfolio of single-tenant retail properties
leased on a long-term net basis, all of which properties are currently owned by
Wildwood Crossing, Lafayette Acquisitions, LLC, a Missouri limited liability
company (“Lafayette Acquisitions”), Maryville Acquisitions, LLC, an
Illinois limited liability company (“Maryville Acquisitions”), Dellwood
Acquisitions and Troy Acquisitions, LLC, an Illinois limited liability company
(“Troy Acquisitions”), through the transaction contemplated by this
Agreement (the “Formation Transaction”).


 


B.            The Formation
Transaction relates to the proposed initial public offering (the “Public
Offering”) of the common stock, par value $0.01, of the Company (the “Common
Stock”).


 


C.            The Trust owns,
or will own, 100% of the capital stock or membership interests, in each of
Wildwood Crossing, Lafayette Acquisitions, Maryville Acquisitions, Dellwood
Acquisitions and Troy Acquisitions and such Persons (as hereinafter defined)
own the properties, each of which is net leased to Walgreen Co., set forth on Exhibit A attached hereto and
incorporated herein (each, a “Property” and together, the “Properties”).


 


D.            Prior to the
Closing (as defined in Section 2.2) of the Formation Transaction,
the Trust will cause (i) Wildwood Crossing to contribute the Property
owned by Wildwood Crossing and leased to Walgreen Co. (the “Wildwood
Crossing Walgreens Parcel”), together with an allocable portion of the
obligation for any borrowed money secured by a mortgage or deed of trust
secured by the Wildwood Crossing Walgreens Parcel, to a newly formed Missouri
limited liability company (“Newco Wildwood”), in exchange for 100% of
the membership interests in Newco Wildwood and (ii) Dellwood Acquisition
to contribute the Property owned by Dellwood Acquisition and leased to Walgreen
Co. (the “Dellwood Walgreens Parcel”), together with an allocable
portion of the obligation for any borrowed money secured by a mortgage or deed
of trust secured by the Dellwood Walgreens Parcel, to a newly formed Missouri
limited liability company (“Newco Dellwood”), in exchange for 100% of
the membership interests in Newco Dellwood (collectively, the “Newco
Contribution Transaction”).


 

















 


E.             Each
Contributor desires to contribute to the Operating Partnership all of the its
respective right, title and interest, free and clear of all Liens, as a member
of Newco Wildwood, Lafayette Acquisitions, Maryville Acquisitions, Newco
Dellwood and Troy Acquisitions (each, a “Participating Entity” and,
collectively, the “Participating Entities”), including, without
limitation, all of such Contributor’s voting rights and interests in the
capital, profits and losses of such Persons or any property distributable
therefrom, constituting all of such Contributor’s rights and interests in such
Participating Entities (such right, title and interest of each Participating
Entity, a “Participating Entity Interest” and collectively, the “Participating
Entity Interests,” in exchange for common units of limited partnership
interests in the Operating Partnership (the “Units”) in a transaction
intended by the parties to qualify as a contribution of property to the
Operating Partnership in exchange for an interest in the Operating Partnership
pursuant to Section 721(a) of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder (the “Code”).


 


F.             The parties
acknowledge that the acquisition of the Properties by the Operating
Partnership, through the Contributors’ contribution of the Participating Entity
Interests, are in connection with the Public Offering and are subject to the
satisfaction of the conditions set forth herein.  It is understood that the Company or the
Operating Partnership may acquire interests in additional properties with the
proceeds of the Public Offering or with Units or other interests in the
Operating Partnership.


 


G.            The parties
acknowledge that the debts, obligations and liabilities of the Participating
Entities are solely the debts, obligations and liabilities of the Participating
Entities, and the Contributors are not obligated for any such debt, obligation
or liability, solely by reason of being a direct or indirect owner, director,
officer or manager of a Participating Entity.


 


H.            All references
in this Agreement to sections, articles, exhibits, schedules, attachments and
recitals shall refer to the corresponding sections, articles, exhibits,
schedules, attachments and recitals of or to this Agreement.  Capitalized terms used and not defined in the
body of this Agreement shall have the meanings set forth in Exhibit B attached hereto and
incorporated herein.


 


NOW,
THEREFORE, for and in consideration of the foregoing premises, and the mutual
undertakings set forth below, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the foregoing
recitals are incorporated into, and made a part of this Agreement, and the
parties hereto further agree as follows:


 


ARTICLE 1


 


CONTRIBUTION OF INTERESTS
IN EXCHANGE FOR UNITS


 


Section 1.1            Contribution
Transactions.


 


(a)           At the Closing and subject
to the terms and conditions contained in this Agreement, the Contributors shall
contribute, transfer, assign, convey and deliver to the Operating Partnership,
absolutely and unconditionally and free and clear of all Liens, but without 


 


2

















 


representation or warranty except as expressly set
forth herein, all of the Participating Entity Interests, including, without
limitation, all rights to indemnification, reimbursement, payment and
distributions in favor of the Contributors under the Participating Entity
Agreements (as defined below) arising after the Closing or any other agreement
pursuant to which the Contributors acquired the Participating Entity
Interests.  The contribution of the
Participating Entity Interests to the Operating Partnership shall be evidenced
by the execution and delivery by each Contributor of a Contribution and
Assumption Agreement in substantially the form of Exhibit C
attached hereto and incorporated herein. 
As used herein, the term “Participating Entity Agreements” means
the articles of organization, certificates of formation, limited liability
company agreements, charters and bylaws and other similar organizational documents
under which each Participating Entity was formed or incorporated (including all
amendments and restatements thereto).


 


(b)           The parties shall take such
additional actions and execute such additional documentation as may be
reasonably required by the Participating Entity Agreements or as requested in
the reasonable judgment of counsel to the Company or the Operating Partnership
or the Participating Entities in order to effect the transactions contemplated
hereby.


 


Section 1.2            Consideration
for Participating Entity Interests.  Subject to Section 1.3, as consideration
for the Participating Entity Interests contributed to the Operating Partnership
by the Contributors, the Operating Partnership shall:


 


(a)           issue to the Contributors a
number of Units calculated in accordance with Exhibit D
attached hereto and incorporated herein, as provided under the heading
“Unit Consideration” and the related footnote (the Units to be issued
hereunder, the “Unit Consideration”); and


 


(b)           assume the loans relating to
the Properties (or the allocable portion thereof in the case of each of the
Wildwood Crossing Walgreens Parcel and the Dellwood Walgreens Parcel) set forth
on Exhibit D  (the “Assumed
Loans” and together with the Unit Consideration, the “Aggregate
Consideration”).


 


Section 1.3            Adjusted
Consideration; Risk of Loss.  The risk of loss relating to the
Participating Entity Interests and the underlying Properties prior to Closing
shall be borne by the Contributors to the extent set forth in this Section 1.3.  If, prior to the Closing, any Property is
destroyed or materially damaged by fire or other casualty, or is taken by
eminent domain or through condemnation proceedings, which casualty or taking
allows a tenant of such Property to terminate its Lease (as defined in Section 3.2(m))
and such right has not been waived in writing or a tenant does in fact
terminate its Lease with respect to such Property (such casualty or taking, a “Termination
Event”), then the Company may, at its option, determine to cause the
Operating Partnership not to acquire the applicable Contributor’s direct or
indirect interests in the Participating Entity that owns such Property.  After the occurrence of any such Termination
Event, the Company may also, at its option, elect to (i) cause the
Operating Partnership to acquire the Participating Entity Interests (including,
the applicable Contributor’s direct or indirect interests in any such
Participating Entity that owns the affected Property), (ii) direct the
applicable Contributor to cause the Participating Entity or Participating
Entities, as applicable, to pay or cause to be paid to the Operating
Partnership any sums collected under any policies of 


 


3

















 


insurance relating to such casualty or condemnation
and otherwise assign to the Operating Partnership all rights to collect such
sums as may then be uncollected (except to the extent that such sums are paid
directly to the tenant of such Property and such tenant continues to be
obligated to pay rent to the Participating Entity that owns such Property
pursuant to the Lease for such Property), and (iii) adjust or settle any
insurance claim or condemnation proceeding. 
Under such circumstances, the Unit Consideration relating to such
Participating Entity Interest shall be reduced by the pro rata share of the
amount of any deductibles or shortfalls (including lack of insurance) under the
applicable insurance policies or award (except to the extent such deductibles
or shortfalls are the responsibility of tenants under Leases), plus all
reasonable costs of collection.  If
Properties constituting more than 25% of the total value of the Properties are
partially or totally damaged or condemned prior to the Closing, the Company may
elect, by notice to the Contributors given within 20 days after the date of
such damage or condemnation, to terminate this Agreement, in which case none of
the Contributors, the Company or the Operating Partnership shall have any
further rights or obligations under this Agreement.


 


Section 1.4            Allocation
of Consideration.  In
connection with the Closing, the Unit Consideration shall be allocated among
the Participating Entities as set forth on Exhibit D.   Each of the Contributors, the Company and
the Operating Partnership agrees to (a) be bound by such allocations,
(b) act in accordance with the allocation in the preparation of financial
statements and filing of all tax returns and in the course of any tax audit,
tax review or tax litigation relating thereto, and (c) take no position,
and cause their Affiliates to take no position, inconsistent with such
allocations for income tax purposes.


 


Section 1.5            Tax
Treatment of Contribution.  The
contribution, transfer, conveyance, 
assignment and delivery of the Participating Entity Interests and/or Properties
to the Operating Partnership from the Contributors shall be treated as a
contribution of property to the Operating Partnership in exchange for an
interest in the Operating Partnership pursuant to Section 721(a) of
the Code.


 


Section 1.6            Taxes.  All ad valorem real estate taxes, charges and
assessments (if any and only to the extent the obligation to pay such taxes,
charges and assessments does not belong to the tenants of the Properties) shall
be pro-rated and apportioned on a per diem basis as of 11:59 P.M. on the
day immediately preceding the Closing Date, apportioned on the basis of the
fiscal year of the authority or other person levying the same.  If any of the same have not been finally
assessed, as of the Closing Date, for the current fiscal year of the taxing
authority or other person assessing or charging the same, then the same shall
be adjusted appropriately at Closing based upon the most recently issued bills
therefore (assuming that it is paid in an amount reduced by any offered discounts),
and shall be readjusted immediately when and if final bills are issued.  To the extent there are any interest or
penalties associated with the payment of any taxes, such interest and penalties
shall be allocated to the party who is responsible for the payment of the tax
generating such interest or penalty.


 


Section 1.7            Other
Tax Matters - Section 704(c) Method.  Each Contributor agrees that in order to
offset the effect (if any) of the ceiling rule limitation described in
Treasury Regulation Section 1.704-3(b)(1) promulgated under the Code
and to eliminate any disparity between the book and tax capital accounts of
such Contributor and the other partners of the Operating Partnership (the “Non-Contributing
Partners”) caused by the disparity between the 


 


4

















 


agreed value of the applicable Property and the
adjusted tax basis of such Property as of the date of this Agreement,
notwithstanding anything to the contrary contained in the Operating Partnership
Agreement, upon the sale or other disposition of such Property in a taxable
transaction, such Contributor shall be allocated, solely for tax purposes and
in addition to any other items of income or gain that would required to be
allocated to such Contributor under the traditional method of eliminating the
book-tax disparity described in Treasury Regulation Section 1.704-3(b), an
amount of income or gain equal to the Ceiling Rule Amount (as hereinafter
defined).  For purposes of this Section 1.7,
the term “Ceiling Rule Amount” shall mean the excess (if any) of: (a) the
aggregate amount of Depreciation (as defined in the Operating Partnership
Agreement) (i.e., book depreciation) with respect to the Property allocated to
the Non-Contributing Partners up to the date of such transaction, over (b) the
aggregate amount of depreciation deductions with respect to the Property
allocated to the Non-Contributing Partners as of the date of such transaction
for Federal income tax purposes.


 


Section 1.8            Guaranty
of Certain Debt of Operating Partnership.  During the Restriction Period, the Operating
Partnership shall, upon demand by any Contributor, use commercially reasonable
efforts to allow such Contributor to enter into a “bottom dollar guarantee” of
Qualifying Debt up to a maximum amount as set forth in Exhibit E
attached hereto and incorporated herein, in form to be agreed to by the
Operating Partnership and such Contributor (each, a “Guarantee”).  Any such demand by a Contributor shall be in
writing and shall be made no later than 30 days following receipt of the
Operating Partnership’s notice (as applicable) to such Contributor in
connection with Section 1.8.  In the
event the Operating Partnership proposes to repay the Qualifying Debt subject
to the Guarantee during the Restriction Period, it shall provide such
Contributor with 30 days’ advance written notice of such repayment, and shall
use commercially reasonable efforts to make alternative Qualifying Debt
available to such Contributor such that there is no period during which such
Contributor fails to have an effective Guarantee in place. In the event such
Contributor elects to enter into a Guarantee in an amount less than the amount
set forth in Exhibit E, upon 30 days’
advance written notice to the Operating Partnership, such Contributor shall
have the right to increase (but not decrease) the amount of such Guarantee of
available Qualifying Debt, up to the amount set forth in Exhibit E.
The Operating Partnership makes no representation or warranty to Contributor
that any Guarantee entered into by Contributor pursuant to this Section 1.8(a) shall
be respected for federal income tax purposes so as to enable a Contributor to
be considered to have the “economic risk of loss” with respect to the
indebtedness guaranteed by Contributor for purposes of Section 752 of the
Code, Section 465 of the Code or otherwise. To the extent more than one
Contributor seeks to enter into guarantees of the type described in this Section 1.8(a),
the available Qualifying Debt of the Operating Partnership will be allocated
among such Contributors on a pro rata basis, in a manner to be determined by
the Company in its sole and absolute discretion.


 


ARTICLE 2


 


CLOSING


 


Section 2.1            Conditions
Precedent.  The
effectiveness of the Company’s Registration Statement on Form S-11 to be
filed with the Securities and Exchange Commission after the execution of this
Agreement (as amended from time to time, the “Registration Statement”),
the 


 


5

















 


pricing of the Common Stock by the underwriters and
the consents of the lenders to the assumption of the Assumed Loans are
conditions precedent to the obligations of all parties to this Agreement to
effect the transactions contemplated by this Agreement on the Closing Date.  These conditions may not be waived by any
party to this Agreement.


 


The
obligations of the Company and the Operating Partnership to effect the
Formation Transaction shall be subject to the following additional conditions
precedent:


 


(a)           the representations and
warranties of the Contributors contained in this Agreement shall have been true
and correct in all material respects (other than those qualified by Material
Adverse Effect or other materiality qualifiers, each of which shall be true and
correct in all respects) on the date such representations and warranties were
made and shall be true and correct on the Closing Date as if made at and as of
the Closing Date;


 


(b)           each obligation to be
performed by the Contributors shall have been duly performed in all material
respects by the Contributors on or before the Closing Date, and the
Contributors shall not have breached any of their covenants contained herein in
any material respect;


 


(c)           concurrently with the
Closing, the Contributors shall have executed and delivered to the Company or
the Operating Partnership, as applicable, the documents required to be
delivered pursuant to Section 2.3;


 


(d)           all necessary consents or
approvals of governmental authorities or third parties (including, without
limitation, lenders to the Contributors or any Participating Entity) to the
consummation of the transactions contemplated herein shall have been obtained,
other than the consents or approvals of lenders whose loans are to be repaid
before or immediately after the Closing;


 


(e)           there shall not have
occurred between the date hereof and the Closing Date any material adverse
change in any of the assets, business, financial condition, results or
prospects of operation of the Participating Entities, taken as a whole; and


 


(f)            no order, statute, rule,
regulation, executive order, injunction, stay, decree or restraining order
shall have been enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental or regulatory authority or
instrumentality that prohibits the consummation of the transactions
contemplated herein, and no litigation or governmental proceeding seeking such
an order shall be pending or threatened in writing.


 


Any
of the foregoing conditions in clauses (a) through (f) may
be waived by the Company in its sole and absolute discretion.


 


Section 2.2            Date,
Time and Place of Closing.  The
time, place and date of the Formation Transaction shall be at 10:00 a.m.
in the office of DLA Piper LLP (US), 4141 Parklake Avenue, Suite 300,
Raleigh, North Carolina 27612 on the day of the closing of the Public Offering,
or such other day mutually agreed upon by the parties after the pricing of the
Public Offering (the “Closing” or “Closing Date”).


 


6














 


Section 2.3            Closing
Deliveries.  At the
Closing, each party shall make, execute, acknowledge and deliver the legal
documents and other items (collectively, the “Closing Documents”)
necessary to carry out the intention of this Agreement, which Closing Documents
and other items shall include, without limitation, the following:


 


(a)           a Contribution and
Assumption Agreement duly executed and delivered by each Contributor
substantially in the form attached hereto as Exhibit C;


 


(b)           for each Contributor, a
certificate from the Operating Partnership that effective at the Closing the
books and records of the Operating Partnership will indicate that such
Contributor is the holder of a number of Units equal to the Unit Consideration
set forth on Exhibit D;


 


(c)           an affidavit duly executed
and delivered by each Contributor substantially in the form attached hereto as Exhibit F, stating, under
penalty of perjury, such Contributor’s United States Taxpayer Identification
Number and that such Contributor is not a foreign person pursuant to
Section 1445(b)(2) of the Code and a comparable affidavit satisfying
any applicable state’s withholding requirements, if any;


 


(d)           all title insurance
policies, leases, lease files, letters of credit, contracts, stock
certificates, membership certificates, original promissory notes held by a
Participating Entity and other indicia of ownership with respect to each
Participating Entity that are in the Contributors’ possession or that can be
obtained through reasonable efforts in the Contributors’ capacity as a direct
or indirect owner of any Participating Entity shall be delivered or made
available to the Company;


 


(e)           a certificate duly executed
and delivered by each Contributor certifying as to the matters noted in Section 2.1(a) and
Section 2.1(b) in the form reasonably acceptable to the
Company;


 


(f)            a joinder to the Operating
Partnership Agreement duly executed and delivered by each Contributor in the
form required by the Company;


 


(g)           a Lock-Up Agreement duly
executed and delivered by each Contributor in the form required by the managing
underwriters of the Public Offering, which agreement shall provide for a
lock-up period of the Units and any shares of Common Stock for which the Units
may be redeemed for a period of not more than one year, subject to a customary
18-day extension if the Company issues an earnings release or makes a material
announcement on or about the time that such one-year lock-up will expire;


 


(h)           certified copies of all
organizational documents for each Contributor, together with certified copies
of all appropriate corporate, limited liability company or trust actions
authorizing the execution, delivery and performance by such Contributor of this
Agreement, any related documents and the Closing Documents;


 


(i)            evidence reasonably
satisfactory to the Company that the Trust is the owner of 100% of the capital
stock or membership interests, as applicable, of Dellwood 


 


7

















 


Acquisitions and Troy Acquisitions on the terms and conditions
reasonably required by the Company and consistent with this Agreement;


 


(j)            evidence reasonably
satisfactory to the Company that the Newco Contribution Transaction has been
consummated on the terms and conditions reasonably required by the Company and
consistent with this Agreement;


 


(k)           evidence reasonably
satisfactory to the Company that the lender of any borrowed money secured by a
mortgage or deed of trust disclosed in the Title Reports, other than those
lenders whose loans are being repaid before or immediately after the Closing,
has consented to the transaction as required by any loan document, deed of
trust, mortgage or other evidence of indebtedness related to any Property;


 


(l)            any other documents
reasonably requested by the Company or the Operating Partnership to assign,
transfer, convey, contribute and deliver the Participating Equity Interests,
free and clear of all Liens, and effectuate the transactions contemplated
hereby; and


 


(m)          all state and local transfer
tax returns and any filings to be made in any applicable governmental
jurisdiction in which the Company or the Operating Partnership reasonably
believes that it is required to file its organizational documentation or in
which the recording of any Contribution and Assumption Agreement is required.


 


Section 2.4            Closing
Costs.  The Company or the Operating
Partnership shall pay any documentary transfer taxes, escrow charges, title
charges and recording taxes or fees and any other closing costs incurred in
connection with the transactions contemplated hereby.


 


ARTICLE 3


 


REPRESENTATIONS AND
WARRANTIES AND INDEMNITIES


 


Section 3.1            Representations
and Warranties of the Company and the Operating Partnership.  The Operating Partnership and the Company,
jointly and severally, hereby represent and warrant to the Contributors as of
the date hereof and as of the Closing Date as follows:


 


(a)           Organization; Authority.  Each of the Company and the Operating
Partnership has been duly formed, is validly existing under the laws of the
jurisdiction of its incorporation or formation, and to, the extent required
under applicable law, is qualified to do business and is in good standing in
each jurisdiction in which the nature of its business or the character of its
property make such qualification necessary. 
Each of the Company and the Operating Partnership has all requisite
corporate or limited partnership, as applicable, power and authority (i) to
enter this Agreement and each agreement contemplated hereby to which it is
party, (ii) to carry out the transactions completed hereby and thereby,
and (iii) to own, lease or operate its property and to carry on its
business as described in the Registration Statement.


 


(b)           Due Authorization.  The execution, delivery and performance of
this Agreement by each of the Company and the Operating Partnership has been
duly and validly authorized by all necessary action of the Company and the
Operating Partnership.  This 


 


8

















 


Agreement and each agreement, document, and instrument
executed and delivered by or on behalf of the Company and/or the Operating
Partnership pursuant to this Agreement constitutes, or when executed and
delivered will constitute, the legal, valid and binding obligations of the
Company and Operating Partnership, as applicable, each enforceable against the
Company and the Operating Partnership, as applicable, in accordance with its
terms, except as such enforceability may be limited by bankruptcy or the
application of equitable principles.


 


(c)           Consents and Approvals.  No consent, waiver, approval or authorization
of any third party or governmental authority or agency is required to be
obtained by the Company and/or the Operating Partnership in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby except for those consents, waivers and approvals or
authorizations, the failure of which to obtain would not reasonably be expected
to have a material adverse effect on the Company and/or the Operating Partnership.


 


(d)           Non-Contravention.  Neither the execution, delivery or
performance of this Agreement or any agreement contemplated hereby nor the
consummation of the transactions contemplated hereby and thereby will
(i) result in a default (or an event that, with notice or lapse of time or
both would become a default) or give to any third party any right of
termination, cancellation, amendment or acceleration under, or result in any
loss of any material benefit, pursuant to any material agreement, document or
instrument to which the Company and/or the Operating Partnership or any of
their respective properties or assets may be bound, (ii) violate or
conflict with any judgment, order, decree or law applicable to the Company or
the Operating Partnership or any of their respective properties or assets, or (iii) violate
or conflict with any provision of the Company’s certificate of incorporation
and/or bylaws or the Operating Partnership’s certificate of limited partnership
or the Operating Partnership Agreement.


 


(e)           REIT and Reporting Status.


 


(i)            The Company will seek to
qualify for taxation as a real estate investment trust under the Code beginning
with the year ending December 31, 2010, and the Company is organized and
operates in a manner that will enable it to qualify as a real estate investment
trust under the Code.


 


(ii)           The Common Stock will be
registered pursuant to Section 12(g) of the Exchange Act of 1934, as
amended (the “Exchange Act”) and will be listed on the New York Stock
Exchange.


 


(f)            Valid Issuance of Units.  The Units, when issued and delivered in
compliance with the provisions of the Agreement will be duly and validly issued
and will be free of any Liens; provided, however, that the Units will be
subject to restrictions on transfer under U.S. state and/or federal securities
laws and as set forth in the Operating Partnership Agreement.  The Units are not subject to any preemptive
rights or rights of first refusal.  Upon
such issuance, the Contributors will be admitted as limited partners of the Operating
Partnership.


 


(g)           Tax Status
of the Operating Partnership.  The Operating Partnership has at all times
during its existence been properly treated as a partnership and not as an 


 


9

















 


association or publicly traded partnership taxable
as a corporation for federal income tax purposes, and each subsidiary of the
Operating Partnership has at all times during its existence been properly
treated as either a “disregarded entity” or a partnership and not as an
association or publicly traded partnership taxable as a corporation for federal
income tax purposes.


 


(h)           No Brokers.  Neither the Company nor the Operating
Partnership has entered into any agreement, arrangement or understanding with
any person or firm that will result in the obligation of the Contributors or
any of the Contributors’ equity holders or beneficiaries (as such) to pay any
finder’s fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.


 


Section 3.2            Representations
and Warranties of the Contributors.  The Contributors, jointly and severally,
hereby represent and warrant to the Company and the Operating Partnership as of
the date hereof and as of the Closing Date as follows:


 


(a)           Organization; Authority.


 


(i)            Each of Wildwood Crossing
and Dellwood Acquisitions has been duly formed, is validly existing under the
laws of the jurisdiction of its formation, and to the extent required under
applicable law, is qualified to do business and is in good standing in each
jurisdiction in which the nature of its business or the character of its
property make such qualification necessary. 
Each of Wildwood Crossing and Dellwood Acquisitions has all requisite
corporate power and authority (A) to enter this Agreement and each
agreement contemplated hereby to which it is party, (B) to carry out the
transactions completed hereby and thereby, and (C) to own, lease or
operate its property, which includes selling, disposing of, exchanging,
reinvesting and contributing its property, and to carry on its business.


 


(ii)           The Trust and the instrument
creating the Trust, are validly existing. 
The Trust is revocable and discretionary and James G. Koman has been
validly appointed as the sole trustee of the Trust under the terms of the
instrument creating the Trust.  The Trust
has all requisite power and authority (A) to enter this Agreement and each
agreement contemplated hereby to which it is party, (B) to carry out the
transactions completed hereby and thereby, and (C) to own, lease or
operate its property, which includes selling, disposing of, exchanging,
reinvesting and contributing its property, and to carry on its business.


 


(iii)          Each of Lafayette
Acquisitions, Maryville Acquisitions and Troy Acquisitions has been duly formed,
is validly existing under the laws of the jurisdiction of its formation, and to
the extent required under applicable law, is qualified to do business and is in
good standing in each jurisdiction in which the nature of its business or the
character of its property make such qualification necessary.  Each such Person has all requisite limited
liability company power and authority to own, lease or operate its property and
to carry on its business.


 


(iv)          As of the Closing Date, each
of Newco Wildwood and Newco Dellwood will be duly formed, will be validly
existing under the laws of the jurisdiction of its formation, and to the extent
required under applicable law, will be qualified to do business and will be in
good standing in each jurisdiction in which the nature of its business or the
character of its property make such qualification necessary.  As of the Closing Date, each such Person
shall 


 


10

















 


have all requisite limited liability company power
and authority to own, lease or operate its property and to carry on its
business.


 


(b)           Due Authorization.  The execution, delivery and performance of
this Agreement by each Contributor has been duly and validly authorized by all
necessary action of such Contributor.  This
Agreement and each agreement, document, and instrument executed and delivered
by or on behalf of each Contributor pursuant to this Agreement constitutes, or
when executed and delivered will constitute, the legal, valid and binding
obligations of such Contributor, each enforceable against such Contributor in
accordance with its terms, except as such enforceability may be limited by
bankruptcy or the application of equitable principles.


 


(c)           Consents and Approvals.  No consent, waiver, approval or authorization
of any third party or governmental authority or agency is required to be
obtained by any Contributor or any Participating Entity in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby, except for (i) those consents, waivers, approvals or
authorizations, the failure of which to obtain would not have a Material
Adverse Effect and (ii) the consents set forth on Schedule
3.2(c).


 


(d)           Non-Contravention.   Upon obtaining the consents set forth in Schedule 3.2(c), neither the
execution, delivery or performance of this Agreement or any agreement
contemplated hereby nor the consummation of the transactions contemplated
hereby and thereby will (A) result in a default (or an event that, with
notice or lapse of time or both would become a default) or give to any third
party any right of termination, cancellation, amendment or acceleration under,
or result in any loss of any material benefit, pursuant to any material
agreement, document or instrument to which any Contributor or any Participating
Entity or any of its respective properties or assets may be bound,
(B) violate or conflict with any judgment, order, decree or law applicable
to any Contributor or any Participating Entity or any of its respective
properties or assets, or (C) violate or conflict with any provision of any
Contributor’s or any Participating Entity’s organizational documents.


 


(e)           Participating Entity Interests.


 


(i)            The Trust is the sole record
owner of the ownership interests of Wildwood Crossing, Lafayette Acquisitions
and Maryville Acquisitions, which interests are held free and clear of any
Liens and for which the Trust has good and valid title.  The Trust owns a majority of the capital stock
or membership interests, as applicable, of Dellwood Acquisitions and Troy
Acquisitions and holds such capital stock or membership interests free and
clear of any Liens and for which the Trust has good and valid title.  Immediately prior to the Closing, the Trust
will be the sole record owner of Dellwood Acquisitions and Troy Acquisitions,
which will be held free and clear of any Liens and for which the Trust will
have good and valid title.  The Newco
Contribution Transactions will have been completed prior to the Closing.  Immediately prior to the Closing, the
Contributors will be the sole record owners of 100% of the Participating Entity
Interests, which will be held free and clear of any Liens and for which the
Contributors will have good and valid title.


 


(ii)           The Participating Entity
Interests to be contributed by each Contributor constitute all of the issued
and outstanding voting rights and interests in the capital, 


 


11

















 


profits or losses of each of the Participating
Entities or the properties and assets (other than the Specified Notes) owned by
the Participating Entities.  No
Contributor has any equity interest, either direct or indirect, in the
Properties, except for the Participating Entity Interests, which are the
subject of this Agreement.


 


(iii)          The Participating Entity
Interests owned by the Contributors were validly issued and are duly authorized
and fully paid and were not issued in violation of any preemptive rights.  To the Knowledge of each Contributor, the
Participating Entity Interests have been issued in compliance with applicable
law and the Participating Entity Agreements. 
There are no rights, subscriptions, warrants, options, conversion
rights, preemptive rights or agreements of any kind outstanding to purchase or
to otherwise acquire any of the interests that comprise the Participating
Entity Interests or any securities or obligations of any kind convertible into
any of the interests that comprise the Participating Entity Interests or other
equity interests or profit participation of any kind in any Participating
Entity.  At the Closing, upon receipt of
the consideration contemplated by this Agreement, the Contributors will have
transferred the Participating Entity Interests to the Operating Partnership
free and clear of all Liens.


 


(f)            Non-Foreign Status.  No Contributor is a foreign person, foreign
corporation, foreign partnership, foreign trust or foreign estate (as defined
in the Code), and is, therefore, not subject to the provisions of the Code
relating to the withholding of sales proceeds to foreign persons.


 


(g)           Investment Purposes.  Each Contributor acknowledges its
understanding that the Units to be acquired pursuant to this Agreement and any
shares of Common Stock for which the Units may be redeemed in accordance with
the Operating Partnership Agreement are not being registered under the
Securities Act of 1933, as amended, and the rules and regulations in
effect thereunder (the “Securities Act”) except as provided for in any
registration rights agreement executed and delivered by the Operating
Partnership (or the Company in the case of shares of Common Stock) or any
applicable state blue sky laws pursuant to a specific exemption or exemptions
therefrom, and the Operating Partnership’s reliance on such exemptions is predicated
in part on the accuracy and completeness of the following representations and
warranties of such Contributor:


 


(i)            Investment.  The Contributor is acquiring the Units solely
for its own account for the purpose of investment and not as a nominee or agent
for any other Person and not with a view to, or for offer or sale in connection
with, any distribution of any thereof. 
The Contributor agrees and acknowledges that it will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of (hereinafter, “Transfer”) any of the Units (or shares of
Common Stock for which the Units may be redeemed) unless (i) the Transfer
is pursuant to an effective registration statement under the Securities Act and
qualification or other compliance under applicable blue sky or state securities
laws, (ii) counsel for the Contributor (which counsel shall be reasonably
acceptable to the Operating Partnership and may be DLA Piper LLP (US)) shall
have furnished the Operating Partnership with an opinion, reasonably
satisfactory in form and substance to the Operating Partnership, to the effect
that no such registration is required because of the availability of an
exemption from registration under the Securities Act and qualification or other
compliance under applicable blue sky or state


 


12

















 


securities
laws, or (iii) the Transfer is a redemption of the Units in accordance
with the Operating Partnership Agreement.


 


(ii)           Knowledge.  The Contributor is knowledgeable,
sophisticated and experienced in business and financial matters and fully
understands the limitations on transfer imposed by the federal securities laws
and as described in this Agreement.  The
Contributor is able to bear the economic risk of holding the Units for an
indefinite period and is able to afford the complete loss of the Contributor’s
investment in the Units.  The Contributor
has received and reviewed all information and documents about or pertaining to
the Company, the Operating Partnership, the business and prospects of the
Company and the Operating Partnership, and the issuance of the Units and the
Common Stock as the Contributor deems necessary or desirable, and has been
given the opportunity to obtain any additional information or documents and
receive such information and documents regarding the Company, the Operating
Partnership, the business and prospects of the Company and the Operating
Partnership and the Common Stock that the Contributor deems necessary or
desirable to evaluate the merits and risks related to the Contributor’s
investment in the Units and to conduct its own independent valuation of the
purchase of the Units.  The Contributor
understands and has taken cognizance of all risk factors related to the
purchase of the Units, including, without limitation, the risk factors set
forth in the Registration Statement.  The
Contributor is a sophisticated real estate investor.  The Contributor is relying upon its own
independent analysis and assessment (including with respect to taxes), and the
advice of the Contributor’s advisors (including tax advisors), and not upon
that of the Company and Operating Partnership, for purposes of evaluating,
entering into, and consummating the transactions contemplated by this Agreement.


 


(iii)          Holding Period.  The Contributor acknowledges that it has been
advised that (i) unless the Units and shares of Common Stock that may be
issued upon redemption of the Units are subsequently registered under the
Securities Act or an exemption from such registration is available, the Units
and the shares of Common Stock, as applicable, must be held (and the
Contributor must continue to bear the economic risk of the investment in the
Units and the shares of Common Stock) indefinitely, (ii) a restrictive
legend in the form hereafter set forth shall be placed on any certificates
representing the Units or shares of Common Stock and (iii) stop transfer
and other notations shall be made in the appropriate records of the Operating
Partnership and the Company and the Company’s transfer agent indicating that
the Units and the shares of Common Stock are subject to restrictions on
transfer.


 


(iv)          Accredited Investor.  The Contributor is an “accredited investor”
(as such term is defined in Rule 501 (a) of Regulation D under the
Securities Act).


 


(v)           Legend.  Each certificate representing the Units or
shares of Common Stock for which the Units may be redeemed shall bear the
following legend:


 


THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE COMPANY AN OPINION OF
COUNSEL SATISFACTORY TO THE 


 


13

















 


COMPANY,
TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE
SECURITIES OR “BLUE SKY” LAWS.


 


In
addition, each certificate representing shares of Common Stock will bear a
legend regarding restriction on ownership and transfer related to the Company’s
status as a real estate investment trust.


 


(h)           No Brokers.  No Contributor has entered into any
agreement, arrangement or understanding with any person or firm that will
result in the obligation of the Company or the Operating Partnership or any of
their respective equity holders or beneficiaries (as such) to pay any finder’s
fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.


 


(i)            Taxes.


 


(i)            To each Contributor’s
Knowledge, (A) all tax returns required to be filed by or on behalf of the
Participating Entities have been duly and timely filed with the appropriate taxing
authorities in all jurisdictions in which such tax returns are required to be
filed (after giving effect to any valid extensions of time in which to make
such filings), and all such tax returns were true, complete and correct in all
material respects; (B) all taxes due and payable by or on behalf of the
Participating Entities, either directly or otherwise, have been fully and
timely paid, except to the extent adequately reserved for in accordance with
generally accepted accounting principles consistently applied on the balance
sheet of such Participating Entity, and adequate reserves or accruals for taxes
have been provided in the balance sheet of such Participating Entity with
respect to any period through the date hereof for which tax returns have not
yet been filed or for which taxes are not yet due and owing; (C) no
agreement, waiver or other document or arrangement extending or having the
effect of extending the period for assessment or collection of taxes
(including, but not limited to, any applicable statute of limitations) has been
executed or filed with any taxing authority by or on behalf of the
Participating Entities, and (D) each Participating Entity is (or will be
at the time of its formation in the case of Newco Wildwood and Newco Dellwood),
and at all times during its existence has been, a limited liability company
that is taxable as a partnership or treated as a disregarded entity for tax
purposes (rather than being taxable as an association or a publicly-traded
partnership taxable as a corporation).


 


(ii)           To each Contributor’s
Knowledge, each Participating Entity has complied in all material respects with
all applicable laws, rules and regulations relating to the payment and
withholding of taxes and has duly and timely withheld from employees’ salaries,
wages and other compensation and has paid over to the appropriate taxing
authorities all amounts required to be so withheld and paid over for all
periods under all applicable laws.


 


(iii)          Each Participating Entity
has made available to the Company, its agents and underwriters complete copies
of any audit report issued within the last three years relating to any material
taxes due from or with respect to such Participating Entity with respect to its
income, assets or operations.


 


14

















 


(iv)          To the each Contributor’s
Knowledge, no claim has been made by a taxing authority in a jurisdiction where
a Participating Entity does not file an income or franchise tax return that
such Participating Entity is or may be subject to taxation by that
jurisdiction.


 


(v)           To each Contributor’s
Knowledge, (A) there are no deficiencies asserted or assessments made as a
result of any examinations by any taxing authority of the tax returns of or
covering or including any Participating Entity, or such deficiencies or
assessments have been fully paid, and there are no other audits or
investigations by any taxing authority in progress, nor has such Participating
Entity received any notice from any taxing authority that it intends to conduct
such an audit or investigation; (B) no requests for a ruling or a
determination letter are pending with any taxing authority by such
Participating Entity; and (C) no issue has been raised in writing by any
taxing authority in any current or prior examination which, by application of
the same or similar principles, could reasonably be expected to result in a
proposed deficiency against such Participating Entity for any subsequent
taxable period that could be material.


 


(vi)          To each Contributor’s
Knowledge, neither any Participating Entity nor any other Person on behalf of
such Participating Entity has executed or entered into a closing agreement
pursuant to Section 7121 of the Code or any predecessor provision thereof
or any similar provision of state, local or foreign law with respect to such
Participating Entity.


 


(vii)         To each Contributor’s
Knowledge, there are no Liens as a result of any unpaid taxes (other than
statutory liens for taxes not yet delinquent) upon any of the assets of any
Participating Entity, other than Permitted Liens.


 


(viii)        Each Contributor is a United
States person within the meaning of Section 7701(a)(30) of the Code.


 


(ix)           No Participating Entity
constitutes a “corporation” or an “association” (within the meaning of the Code).


 


(x)            To each Contributor’s
Knowledge, no Participating Entity has engaged in a “reportable transaction”
within the meaning of Treasury Regulations Section 1.6011-4.


 


(j)            No  Litigation.  There are no Actions pending or, to each
Contributor’s Knowledge, threatened against any Contributor or any
Participating Entity or any Property that, if adversely determined, would have
a Material Adverse Effect.  There is no
outstanding order, writ, injunction or decree of any court, government,
governmental entity or authority or arbitration naming or specifically
identifying any Contributor or any Participating Entity, all or any portion of
the Participating Entity Interests or any Property which in any such case would
have a Material Adverse Effect.


 


(k)           Compliance With Laws.  To the Knowledge of each Contributor, none of
the other Contributors or any Participating Entity has received any written
notice from any governmental agency requiring the correction of any condition
with respect to any Property, or any part thereof, by reason of a violation of
any applicable federal, state, county or municipal 


 


15

















 


laws, ordinances, rules, regulations, codes, orders
and statutes (including, without limitation, those currently relating to fire
and safety, conservation, parking, Americans with Disabilities Act, zoning and
building laws) except where the failure to be in compliance with such laws
would not have a Material Adverse Effect.  Compliance with Environmental Laws
is addressed solely by Section 3.3(n) and not by this Section 3.3(k).


 


(l)            Title.  To the Knowledge of each Contributor, the
Participating Entities own fee title to the Properties, in each case not
subject to any Liens other than Liens that (i) secure the indebtedness
for borrowed money described on Exhibit D,  (ii) do not materially and adversely
affect the value of the Properties or interfere with the use made or
proposed to be made of the Properties by the Participating Entities or
(iii) are set forth in the Registration Statement.


 


(m)          Leases.  Copies that are true, correct and complete in
all material respects of the leases with Walgreen Co. in effect with respect to
the Properties as of the date of this Agreement (the “Leases”), together
with all amendments and supplements thereto, have been delivered or made
available to the Company, its agents and underwriters.  Other than the Leases, there are no other
ground leases, leases, subleases or other rights of occupancy with respect to
the Properties.  To the Knowledge of the
Contributors, the Leases are (i) in full force and effect and (ii) no
monetary or material non-monetary default (beyond applicable notice and cure
periods) by and party exists under any Lease.


 


(n)           Environmental Compliance.  To the Knowledge of the Contributors, except
as may be disclosed in Schedule 3.2(n) or
the environmental reports listed therein (the “Environmental Reports”)
(true and correct copies of which have been made available to the Company, the
Operating Partnership, their respect agents and the underwriters), the
Properties are in compliance with all Environmental Laws and Environmental
Permits, except where the failure to so comply would not have a Material
Adverse Effect.  No Contributor has received
any written notice from the United States Environmental Protection Agency or
any other federal, state, county or municipal entity or agency that regulates
Hazardous Materials or public health risks or other environmental matters or
any other private party or Person claiming any current violation of, or
requiring current compliance with, any Environmental Laws or Environmental
Permits or demanding payment or contribution for any Release or other
environmental damage in, on, under, or upon any of the Properties. No
litigation in which any Contributor or any Participating Entity is a named
party is pending with respect to Hazardous Materials located in, on, under or
upon any of the Properties, and, to the Knowledge of the Contributors, no
investigation in such respect is pending and no such litigation or
investigation has been threatened in writing in the last 12 months by any
governmental entity or any third party. To the Knowledge of the Contributors,
except as may be disclosed in Schedule 3.2(n) or
the Environmental Reports, there are no environmental conditions existing at,
on, under, upon or affecting the Properties or any portion thereof that would
reasonably be likely to result in any claim, liability or obligation under any
Environmental Laws or Environmental Permit or any claim by any third party that
would have a Material Adverse Effect.


 


(o)           Licenses
and Permits.  To the
Knowledge of the Contributors, all licenses, permits or other governmental
approvals (including certificates of occupancy) required to be obtained by the
owner of any Property in connection with the construction, use, occupancy,
management, leasing and operation of the Properties have been obtained and are
in full force and


 


16














 


effect and in good standing, except for those licenses, permits and
other governmental approvals, the failure of which to obtain or maintain in
good standing would not have a Material Adverse Effect.


 


(p)                                 Condemnation and Zoning.  To the Knowledge of the Contributors, there
are no pending, proposed or threatened in writing condemnation, eminent domain
or similar proceedings, or negotiations for purchase in lieu of condemnation,
that affect or would affect any portion of any Property that is owned by any Participating
Entity.  No Contributor nor any
Participating Entity has received a written notice that remains uncured from any governmental authority
stating that any Property owned or leased by such Participating Entity is
currently violating any zoning, land use or similar rules or ordinances in
any respect that would reasonably be expected to have a Material Adverse
Effect.


 


(q)                                 Bankruptcy. There has not
been filed any petition or application with respect to, or any proceeding
commenced by or against, any of the assets of any Contributor or Participating
Entity under any bankruptcy law, and no Contributor or Participating Entity has
made any assignment for the benefit of creditors.  No Contributor nor any Participating Entity
is “insolvent” within the meaning of any bankruptcy law and neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby shall render any Contributor insolvent.


 


(r)                                    Liabilities.  To the Knowledge of the Contributors, there
are no liabilities or obligations of any of the Participating
Entities, direct or indirect, contingent or otherwise, except for (i) the
indebtedness for borrowed money in the amounts set forth on Exhibit D and accrued
interest thereon and (ii) obligations arising under the Leases,
in either case none of which results from, arises out of or relates to
any default under or breach of contract, breach of warranty, tort,
infringement or violation of law.


 


(s)                                  Knowledge.  The Persons identified in the definition of “Knowledge”
are the representatives of the Contributors who are primarily responsible for
the ownership, development and asset management of the Properties by the
Contributors.


 


Section 3.3                                   Indemnification.


 


(a)                                  Survival of Representations and
Warranties; Remedy for Breach.


 


(i)                                     The representations and
warranties in Section 3.1 and Section 3.2 shall survive the Closing
for the period specified in Section 3.3(e)(i).  The covenants contained in this Agreement
shall survive the Closing for the periods specified therein.


 


(ii)                                  None of the Contributors,
the Company or the Operating Partnership shall be liable under this Agreement
for monetary damages (or otherwise) for breach of any of their respective
representations and warranties contained in Section 3.1 or Section 3.2,
as applicable, or this Agreement, or in any Schedule, certificate, affidavit or
other document delivered by it pursuant thereto, other than the indemnification
provisions contained in this Section 3.3, which, except in the case
of fraud and except as provided in Section 6.10, shall be the sole
and exclusive remedy with respect thereto.


 


17

















 


(b)                                 General Indemnification.


 


(i)                                     The Company and the
Operating Partnership, jointly and severally, shall indemnify and hold harmless
the Contributors and their respective directors, managers, officers, employees,
agents, representatives, beneficiaries, equity interest holders and Affiliates
(each of which is an “Indemnified Contributor Party”) from and against
any and all claims, losses, damages, liabilities and expenses, including,
without limitation, amounts paid in settlement, reasonable attorneys’ fees,
costs of investigation and remediation, costs of investigative, judicial or
administrative proceedings or appeals therefrom, and costs of attachment or
similar bonds (collectively, “Losses”) asserted against, imposed upon or
incurred by such Indemnified Contributor Party arising out of or relating to or
in connection with any breach of a representation, warranty or covenant of the
Company or the Operating Partnership contained in this Agreement or in any
Schedule, certificate, affidavit or other document delivered by the Company or
Operating Partnership pursuant to this Agreement.


 


(ii)                                  The Contributors, jointly
and severally, shall indemnify and hold harmless the Company and the Operating
Partnership and their respective directors, managers, officers, employees,
agents, representatives, beneficiaries, equity interest holders and Affiliates
(each of which is an “Indemnified Company Party”) from and against any
and all Losses asserted against, imposed upon or incurred by such Indemnified
Company Party arising out of or relating to or in connection with any breach of
a representation, warranty or covenant of any Contributor contained in this
Agreement or in any Schedule, certificate, affidavit or other document
delivered by any Contributor pursuant to this Agreement.


 


(c)                                  Notice and Defense of Claims.  As soon as reasonably practicable after
receipt by the Indemnified Company Party or the Indemnified Contributor Party,
as applicable (as applicable, an “Indemnified Party”) of notice of any
liability or claim asserted against, imposed upon or incurred by the
Indemnified Party that is subject to indemnification by the Contributors or the
Company and the Operating Partnership, as applicable, under this Section 3.3
(as applicable, the “Indemnifying Party”), the Indemnified Party shall
give notice thereof to the Indemnifying Party. 
The Indemnified Party may at its option demand indemnity under this Section 3.3
from the Indemnifying Party as soon as a claim has been threatened in writing
by a third party, regardless of whether an actual Loss has been suffered, so
long as the Indemnified Party shall in good faith determine that such claim is
not frivolous and that the Indemnified Party may be liable for, or otherwise
incur, a Loss as a result thereof and shall give notice of such determination
to the Indemnifying Party.  The
Indemnified Party shall permit the Indemnifying Party, at its option and
expense, to assume the defense of any such claim by counsel selected by the
Indemnifying Party and reasonably satisfactory to the Indemnified Party, and to
settle or otherwise dispose of the same; provided, that the Indemnified
Party may at all times participate (but not control) in such defense at its
expense; and provided  further, that the Indemnifying Party shall
not, in defense of any such claim, except with the prior written consent of the
Indemnified Party, in its sole and absolute discretion, consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff in question
to the Indemnified Party and its Affiliates of a release of all liabilities in
respect of such claims, or that does not result only in the payment of money
damages.  Notwithstanding the foregoing,
if the Company or the Operating Partnership is required to retain counsel, any
such counsel shall be selected by the Company (and may include DLA Piper LLP 


 


18

















 


(US)).  If the Indemnifying Party
shall fail to undertake such defense within 30 days after such notice, or
within such shorter time as may be reasonable under the circumstances, then the
Indemnified Party shall have the right to undertake the defense, compromise or
settlement of such liability or claim on behalf of and for the account of the
Indemnifying Party.


 


(d)                                 Limitations on Indemnification.  The Indemnified Company Parties shall look
exclusively to the Contributor’s Units for indemnification under this Section 3.3,
and, with respect to any indemnification in connection with a breach of
any of the Specified Representations, the aggregate recovery that may be
sought or obtained pursuant to this Section 3.3 from the Contributors
shall not exceed fifty percent (50%) of the Unit Consideration, less any
recovery obtained from the Contributors pursuant to this Section 3.3 in
connection with any other breach.  For purposes of indemnification under
this Section 3.3, the Units will be valued at the mid-point of the
per-share initial public offering price range set forth on the cover of the
preliminary prospectus included in the Registration Statement and used
initially in the road show for the Public Offering.  No Indemnified Party shall have the right to
receive or recover punitive damages against the Indemnifying Party by reason of
any breach under or in connection with this Agreement or any schedule, exhibit,
certificate or affidavit or any other document delivered by the Contributor or
the Company or the Operating Partnership, as applicable, pursuant to this
Agreement, and each Indemnified Party hereby waives any and all rights to
receive such damages.


 


(e)                                  Limitation Period.


 


(i)                                     Any claim for
indemnification under Section 3.3 for any representation or warranty that
survives the Closing must be asserted in writing by the Indemnified Party,
stating the nature of the Losses and the basis for indemnification therefore,
prior to the expiration of the first anniversary of the Public Offering.


 


(ii)                                  If so asserted in writing
within the applicable period described in Section 3.3(e)(i), such claims
for indemnification shall survive until resolved by mutual agreement among the
Indemnifying Party and the Indemnified Party or by judicial determination.  Any claim for indemnification not so asserted
in writing prior to the expiration of the first anniversary of the Public
Offering shall not thereafter be asserted and shall forever be waived.


 


(f)                                    No
Effect on Insurance.  Nothing
contained in this Section 3.3 or this Agreement shall be construed to
release or otherwise relieve any insurer of any Contributor, Indemnified
Company Party or any Affiliate thereof from paying any of its claims or
otherwise performing any of its duties and obligations pursuant to the terms
and provisions of any policy of insurance which insures any Contributor, Indemnified
Company Party, Participating Entity or Property.  If any claims as to which an Indemnified
Company Party would be entitled to indemnification under Section 3.3(b) are
covered by the insurance, the indemnification obligations shall be reduced by,
but only by, the amount paid by the insurance company and not by any deductible
or other amount reimbursed to the insurance company by an Indemnified Company
Party.


 


19

















 


ARTICLE 4


 


COVENANTS OF CONTRIBUTORS


 


Section 4.1                                   Negative
Covenants.


 


(a)                                  Participating Entity Interests.  From the date hereof through the Closing, except
as described in the Registration Statement and except for the Newco
Contribution Transaction, the Contributors, jointly and severally, shall not,
without the prior written consent of the Company:


 


(i)                                     sell, transfer or otherwise
dispose (or agree to sell, transfer or otherwise dispose) of, or cause or allow
the sale, transfer or disposition of (or agree to do any of the foregoing) all
or any portion of the Participating Entity Interests, or


 


(ii)                                  encumber or pledge or
otherwise subject to any Lien (or permit to become encumbered or pledged or
otherwise subjected to any Liens) all or any portion of the Participating
Entity Interests; or


 


(iii)                               agree to do any of the
foregoing.


 


(b)                                 Participating Entity Operations.  From the date hereof through the Closing, the
Contributors agree to cause each Participating Entity to conduct its business
in the ordinary course, consistent with past practices.  Except as described in the Registration
Statement and except for the Newco Contribution Transaction, the Contributors
shall not permit any Participating Entity without the prior written consent of
the Company to:


 


(i)                                     enter into a material
transaction not in the ordinary course of business;


 


(ii)                                  sell, transfer or dispose
of, or cause the sale, transfer or disposition of any assets of such
Participating Entity (other than (A) that certain Taxable Tax Increment
Revenue Note in the original principal amount of $4,045,845 payable by the City
of Dellwood, Missouri to Dellwood Acquisitions, (B) that certain Business
District Tax Revenue Note in the original principal amount of $500,000 payable
by the City of Troy, Illinois to Troy Acquisitions and (C) that
certain Tax Revenue Note in the original principal amount of $350,000 payable
by the Village of Maryville, Illinois to Maryville Acquisitions
(collectively, the “Specified Notes”));


 


(iii)                               mortgage, pledge, encumber
or otherwise subject to any Liens (or permit to become mortgaged, pledged,
encumbered or otherwise subjected to any Liens) any assets of such
Participating Entity, except for Permitted Liens;


 


(iv)                              amend, modify or terminate
any Lease;


 


(v)                                 terminate or amend any
existing property insurance policies (if any) affecting the Properties carried
by such Participating Entity that results in a material reduction in insurance
coverage for one or more Properties;


 


20

















 


(vi)                              knowingly cause or permit
such Participating Entity to violate any applicable laws;


 


(vii)                           materially alter the manner
of keeping such Participating Entity’s books, accounts or records or the
accounting practices therein reflected;


 


(viii)                        split, combine or reclassify
any Participating Entity Interests;


 


(ix)                                issue any interests that
comprise the Participating Entity Interests or any securities or obligations of
any kind convertible into any of the interests that comprise the Participating
Entity Interests;


 


(x)                                   amend any Participating
Entity Agreement;


 


(xi)                                make or change any material
election with respect to taxes;


 


(xii)                             make any distribution to its
beneficiaries or equity interest holders other than the Specified Notes and
distributions consistent the agreed upon pro ration set forth in Section 4.2(h);
or


 


(xiii)                          agree to do any of the
foregoing.


 


Section 4.2                                   Affirmative
Covenants.


 


(a)                                  The Contributors shall use
their commercially reasonable efforts to obtain any approvals, waivers or other
consents of third parties, governmental authorities and agencies required to
effect the Formation Transaction, including, without limitation, the consents
set forth on Schedule 3.2(c).


 


(b)                                 The Trust shall use its
commercially reasonable efforts to acquire no later than immediately before the
Closing the capital stock or membership interests, as applicable, of Dellwood
Acquisitions and Troy Acquisitions not owned by it as of the date of this
Agreement on the terms and conditions reasonably required by the Company and
consistent with this Agreement.


 


(c)                                  The Trust shall use its
commercially reasonable efforts to consummate the transactions contemplated by
the Newco Contribution Transaction on the terms and conditions reasonably
required by the Company and consistent with this Agreement, including any
approvals, waivers or other consents of third parties (including the consents
from any lenders), governmental authorities and agencies required to effect the
Newco Contribution Transaction.


 


(d)                                 Without limiting the other
obligations of the Contributors set forth in this Agreement, the Contributors
shall use their commercially reasonable efforts (i) to prevent the breach
of any representation or warranty of any Contributor hereunder and (ii) to
satisfy all covenants of the Contributors hereunder.  Compliance with this covenant shall not limit
a Contributor’s liability for a breach of, or failure to perform, any other
representation, warranty or covenant herein.


 


21

















 


(e)                                  From the date hereof and
subsequent to the Closing, the Contributors agree to provide the Company with
such tax information relating to the Participating Entity Interests that is in
the Contributors’ possession or control and that is reasonably requested by the
Company and not otherwise in the Company’s or the Operating Partnership’s
possession or control and to cooperate with the Company and the Operating
Partnership with respect to the filing of their respective tax returns;
provided, that if the Closing does not occur, the Company will use its
commercially reasonable efforts to keep all such information confidential
except to the extent disclosure of such information is required by law.


 


(f)                                    From the date hereof until
Closing, the Company, the Operating Partnership and the Contributors, as the
case may be, shall promptly notify the other parties in writing of (i) any
condition, fact, information or discovery which would cause any representation
or warranty made on the date hereof in Section 3.1 or Section 3.2, as
applicable, to be untrue or inaccurate in any respect; and (ii) any breach
of any covenant by the Company or the Operating Partnership, on the one hand,
or the Contributors, on the other hand. 
The delivery of any notice pursuant to this Section 4.2(f) shall
not be deemed to: (x) modify the representations or warranties as made on
the date hereof by the notifying party; (y) modify the conditions set
forth in Section 2.1; or (z) limit or otherwise affect the remedies
available hereunder to the receiving parties.


 


(g)                                 From the date hereof until
Closing, the Contributors shall promptly notify the Company in writing of the
occurrence or nonoccurrence of any event between the date hereof and Closing
which constitutes an unintentional breach of a representation or warranty set
forth in Section 3.2, and not a breach of a covenant in this Agreement (an
“Intervening Event”), that would otherwise cause the closing condition
set forth in Section 2.1 to fail to have been satisfied when such
representation and warranty is required to be made again on the Closing
Date.  The disclosure of any Intervening
Event shall be disclosed in an appropriate amended, supplemented or revised
Disclosure Schedule (collectively, the “Supplemental Disclosures”).  In the event that the Company is notified of
an Intervening Event in accordance with this Section 4.2(g), the Company
and Operating Partnership shall have the right and option, exercisable at any
time prior to the Closing, to provide written notice to the Contributors that
the Company and Operating Partnership have elected to terminate this
Agreement.  If the Company and Operating
Partnership do not elect to terminate this Agreement as provided above, this
Agreement shall remain in full force and effect subject to the express
provisions hereof and (i) such Intervening Event shall not constitute or
be deemed to constitute a breach of the representations and warranties made by
the Contributors, and (ii) such Supplemental Disclosures shall upon the
Closing Date be deemed to amend the Disclosure Schedules of the Contributors as
of the date hereof and thereby cure any breach which would have resulted from
the Contributors’ failure to disclose the Intervening Event set forth in the
Supplemental Disclosures.  For the
avoidance of doubt, an Intervening Event shall not include any event or
occurrence that could or should have been set forth on a Disclosure Schedule of
the Company as of the date hereof but was not so included.


 


(h)                                 The parties agree to pro
rate the amount of any prepaid lease payment received by a Participating Entity
such that the Contributor of such Property receives the portion of such amount
for the number of days ending on or before the Closing Date and the Operating
Partnership receives the portion of such amount for the period after the
Closing Date.


 


22

















 


(i)                                     The Contributors acknowledge
and agree that Section 1.8 of this Agreement may be unnecessary but the
Contributors and their representatives have been unable to complete their
analysis.  The Contributors agree to
complete their analysis within 10 business days after the date hereof and unless
they reasonably determine that Section 1.8 is necessary to defer
recognition of taxable gain by the Contributors, the Contributors agree to
amend this Agreement to delete such section.


 


ARTICLE 5


 


RELEASE AND WAIVER


 


As of the Closing, each Contributor irrevocably
waives, releases and forever discharges the Participating Entities and each of
their respective directors, managers, officers, employees, agents, equity
interest holders, attorneys, Affiliates, successors and assigns of and from,
any and all Losses of any nature whatsoever existing as of the Closing
(collectively, “Contributor Claims”), known or unknown, suspected or
unsuspected, arising out of or relating to the Participating Entity Agreements,
the Participating Entities or the Properties.


 


ARTICLE 6


 


MISCELLANEOUS


 


Section 6.1                                   Further
Assurances.  Each
Contributor agrees to take such other actions and execute and deliver such
additional documents following the Closing as the Company or the Operating
Partnership may reasonably request in order to effect the transactions
contemplated hereby.


 


Section 6.2                                   Counterparts.  This Agreement may be executed in one or more
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.


 


Section 6.3                                   Governing
Law, Venue.  This
Agreement shall be governed by the internal laws of the State of Illinois,
without regard to the choice of laws provisions thereof.  Any action to enforce, which arises out of or
in any way relates to, any of the provisions of this Agreement or the
instruments, agreements and other documents contemplated hereby shall be
brought and prosecuted in any state or federal courts located in the State of
Illinois.  Each party irrevocably:
(a) submits to the exclusive jurisdiction of the aforesaid courts, and (b) waives
any objection which it may have at any time to the laying of venue of any suit,
action or proceeding (“Proceedings”) brought in any such court, waives
any claim that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings, that such
court does not have jurisdiction over such party.  The parties irrevocably consent to service of
process given in the manner provided for notices in Section 6.14.  Nothing in this Agreement will affect the
right of any party to serve process in any other manner permitted by law.


 


23

















 


Section 6.4                                   Amendment;
Waiver.  Any amendment hereto shall be
in writing and signed by all parties hereto. 
No waiver of any provisions of this Agreement shall be valid unless in
writing and signed by the party against whom enforcement is sought.


 


Section 6.5                                   Entire
Agreement.  This
Agreement and all related agreements referred to herein constitute the entire agreement
and supersede conflicting provisions set forth in all other prior agreements
and understandings, both written and oral, among the parties with respect to
the subject matter hereof.  In the event
of a conflict between the provisions of this Agreement and any other agreement
referred to herein, the provisions of this Agreement shall control.


 


Section 6.6                                   Assignability.  This Agreement shall be binding upon, and
shall be enforceable by and inure to the benefit of, the parties hereto and
their respective heirs, legal representatives, successors and assigns; provided,
that this Agreement may not be assigned (except by operation of law) by any
party without the prior written consent of the other parties, and any attempted
assignment without such consent shall be void and of no effect, except that the
Company may assign this Agreement, the Closing Documents, and its rights and
obligations hereunder and thereunder to a direct or indirect subsidiary of the
Company without the consent of the Contributors.  Any assignment permitted hereby shall not
release the assignor of any liability hereunder or any of the Closing
Documents.


 


Section 6.7                                   Titles.  The titles and captions of the Articles,
Sections and paragraphs of this Agreement are included for convenience of
reference only and shall have no effect on the construction or meaning of this
Agreement.


 


Section 6.8                                   Third
Party Beneficiary.  Other than
the indemnification provisions in favor of the parties’ owners, directors,
officers, employees, agents, attorneys and Affiliates, no provision of this
Agreement is intended, nor shall it be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any customer,
Affiliate, stockholder, partner, member, director, officer or employee of any
party hereto or any other person or entity.


 


Section 6.9                                   Severability.  If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons, entities or circumstances will be interpreted so as
reasonably to affect the intent of the parties hereto.  The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision and to execute any
amendment, consent or agreement deemed necessary or desirable by the parties to
effect such replacement.


 


Section 6.10                            Equitable
Remedies.  The
Contributor, the Operating Partnership and the Company agree that irreparable
damage would occur to the others in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached.  It is
accordingly agreed that any of them shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by any others of them and to
enforce specifically the terms and provisions hereof in any federal or state
court located in the State of Illinois (as to which the parties agree to submit
to jurisdiction for the purposes of such action), 


 


24

















 


this being in addition to any other remedy to which the non-breaching
party is entitled under this Agreement or in equity.


 


Section 6.11                            Time of
the Essence.  Time is of
the essence with respect to all obligations under this Agreement.


 


Section 6.12                            Reliance.  Each party to this Agreement acknowledges and
agrees that it is not relying on tax advice or other advice from the other
party to this Agreement and that it has or will consult with its own advisors.


 


Section 6.13                            Survival.  It is the express intention and agreement of
the parties hereto that the representations, warranties and covenants of the
Contributors and of the Company and the Operating Partnership set forth in this
Agreement shall survive the Closing; provided, that such representations
and warranties shall survive only for the period specified in Section 3.3(a)(i) and
all other representations and warranties terminate at Closing.  The provisions of this Agreement that
contemplate performance after the Closing shall survive the Closing and shall
not be deemed to be merged into or waived by the instruments of Closing.  EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTIONS 3.1 AND 3.2, THE PARTIES
MAKE NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED.


 


Section 6.14                            Notice.  Any notice to be given hereunder by any party
to the other parties shall be given in writing by personal delivery, by
registered or certified mail, postage prepaid, return receipt requested or by
any nationally-recognized overnight carrier, and shall be deemed communicated
as of the date of personal delivery (including delivery by overnight
courier).  Mailed notices shall be
addressed as set forth below, but any party may change the address set forth
below by written notice to other parties in accordance with this paragraph.


 


	
  To the Contributors:

  	
   

  	
  c/o Koman Properties, Inc.

  
	
   

  	
   

  	
  8027 Forsyth Boulevard

  
	
   

  	
   

  	
  St. Louis, MO 63105

  
	
   

  	
   

  	
  Attn: James G. Koman

  
	
   

  	
   

  	
   

  
	
  To the Company or the Operating 

  	
   

  	
  ECM Realty Trust, Inc.

  
	
  Partnership:

  	
   

  	
  150 North Wacker Drive

  
	
   

  	
   

  	
  Suite 800

  
	
   

  	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  	
  Attn: Chief Financial Officer

  



 


Section 6.15                            Termination.  This Agreement shall terminate if the Closing
shall not have occurred on or prior to December 15, 2010.  Upon such termination, this Agreement shall
become void and have no effect, and no party hereto shall have any liability to
the other parties hereto.


 


Section 6.16                            Confidentiality.  All press releases or other public
communications of any kind relating to the Public Offering or the transactions
contemplated herein, and the method and 


 


25

















 


timing of release for publication thereof, will be subject to the prior
written approval of the Company in its sole and absolute discretion.


 


Section 6.17                            Joint
Preparation.  The parties
acknowledge that this Agreement was jointly prepared by them, by and through
their legal counsel, and any uncertainty or ambiguity existing herein shall not
be interpreted against any of the parties, but otherwise according to the
application of the rules on interpretation of contracts.


 


[Signature Page Follows]


 


26














 


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


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  ECM
  REALTY TRUST, INC., a

  
	
   

  	
  Maryland
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shelby E. L. Pruett

  
	
   

  	
   

  	
  Name:
  Shelby E. L. Pruett

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  OPERATING
  PARTNERSHIP:

  
	
   

  	
   

  
	
   

  	
  ECM
  REALTY TRUST, L.P., a

  
	
   

  	
  Delaware
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ECM
  REALTY TRUST, INC., a Maryland corporation, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Shelby E. L. Pruett

  
	
   

  	
   

  	
   

  	
  Name: Shelby E.L. Pruett

  
	
   

  	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  CONTRIBUTORS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  James G. Koman

  
	
   

  	
  James
  G. Koman, Trustee of the James G. Koman Revocable Trust UTA dated
  January 31, 1997

  
	
   

  	
   

  
	
   

  	
  WILDWOOD
  CROSSING, INC., a

  
	
   

  	
  Missouri
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James G. Koman

  
	
   

  	
   

  	
  Name:
  James G. Koman

  
	
   

  	
   

  	
  Title:
  President

  
					



 


[Signature
Page to Contribution Agreement]


 

















 


	
   

  	
  DELLWOOD
  ACQUISITIONS, INC., a

  
	
   

  	
  Missouri
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James G. Koman

  
	
   

  	
   

  	
  Name:
  James G. Koman

  
	
   

  	
   

  	
  Title:
  President

  



 


[Signature Page to
Contribution Agreement]


 

















 


EXHIBIT D


TO


CONTRIBUTION AGREEMENT


 


CONSIDERATION


 


	
  Entity Name

  	
   

  	
  Contributor

  	
   

  	
  Unit

  Consideration

  	
   

  	
  Gross Value

  	
   

  	
  Assumed Loan

  	
   

  	
  Balance of Assumed

  Loan as of June 30, 2010

  
	
  Newco Wildwood

  	
   

  	
  Wildwood Crossing

  	
   

  	
  *

  	
   

  	
  $

  	
  5,565,000

  	
   

  	
  1.
  Building Loan Agreement between Wells Fargo Bank, N.A., Wildwood
  Crossing, Inc. and Related Parties dated 3/22/06, as amended

  2.
  $29,000,000 Promissory Note Secured by Deed of Trust dated 3/22/06

  3.
  Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement
  and Fixture Filing dated 3/22/06, as amended

  4.
  Related Loan Documents

  	
   

  	
  Estimated $4,000,155.88

  (allocable portion only)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lafayette Acquisitions

  	
   

  	
  Trust

  	
   

  	
  *

  	
   

  	
  $

  	
  4,704,000

  	
   

  	
  1.
  Construction Loan Agreement between Commerce Bank, NA and Lafayette
  Acquisitions, LLC dated 2/26/09

  2.
  $3,700,000 Promissory Note

  3.
  Future Advance Deed of 

  	
   

  	
  $3,418,474.91

  



 

















 


	
  Entity Name

  	
   

  	
  Contributor

  	
   

  	
  Unit

  Consideration

  	
   

  	
  Gross Value

  	
   

  	
  Assumed Loan

  	
   

  	
  Balance of Assumed

  Loan as of June 30, 2010

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Trust,
  Assignment and Security Agreement

  4.
  Related Loan Documents

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maryville Acquisitions

  	
   

  	
  Trust

  	
   

  	
  *

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  1.
  $3,924,244.00 Amended and Restated Project Note dated 4/30/10 to Wells Fargo
  Bank, N.A.

  2.
  Mortgage and Assignment of Rents and Leases dated 12/28/07, as amended

  3.
  Related Loan Documents

  	
   

  	
  $3,894,244.13

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Newco Dellwood

  	
   

  	
  Dellwood Acquisitions

  	
   

  	
  *

  	
   

  	
  $

  	
  4,839,000

  	
   

  	
  1.
  Construction Loan Agreement between Bank of America, N.A. and Dellwood
  Acquisitions, Inc. dated 3/28/06, as amended

  2.
  $3,600,000.00 Amended and Restated Construction Loan Note dated 4/1/09

  3.
  Construction Deed of Trust, Security Agreement, Assignment of Rents and
  Leases and Fixture Filing dated 3/28/06

  4.
  Related Loan Documents

  	
   

  	
  Estimated $2,842,211.27 (allocable portion only)

  



 

















 


	
  Entity Name

  	
   

  	
  Contributor

  	
   

  	
  Unit

  Consideration

  	
   

  	
  Gross Value

  	
   

  	
  Assumed Loan

  	
   

  	
  Balance of Assumed

  Loan as of June 30, 2010

  
	
  Troy Acquisitions

  	
   

  	
  Trust

  	
   

  	
  *

  	
   

  	
  $

  	
  4,032,000

  	
   

  	
  1.
  $3,158,790.00 Amended and Restated Project Note dated 4/30/10 to Wells Fargo
  Bank, N.A.

  2.
  Mortgage and Assignment of Rents and Leases dated 7/22/05, as amended

  3.
  Related Loan Documents

  	
   

  	
  $3,133,789.89

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
   

  	
   

  	
  *

  	
   

  	
  $

  	
  24,140,000

  	
   

  	
   

  	
   

  	
   

  



 






*  Unit Consideration shall be
calculated as the quotient of (a) the specified dollar amount under “Gross
Value” less the balance of the applicable Assumed Loan (principal and accrued
and unpaid interest), divided by (b) the mid-point of the per-share
initial public offering price range set forth on the cover of the preliminary
prospectus included in the Registration Statement and used initially in the
road show for the Public Offering, rounded down to the nearest whole
number.  For example, if the per-share
initial public offering price range set forth on the cover of such preliminary
prospectus were $14 to $16 and the expected Closing Date was June 30,
2010, then the Unit Consideration for Maryville Acquisitions would be 73,717
Units, calculated by dividing $1,105,755.87 (which is itself calculated by
subtracting $3,894,244.13 from $5,000,000) by $15 and rounding the quotient
down to the nearest whole number.  The
parties agree to estimate in good faith the balance of the Assumed Loan as of
the expected Closing Date (using the prevailing payment and amortization
schedule for the Assumed Loan) and use that estimate for purposes of the
foregoing calculation