EXHIBIT 10.12



 






Exhibit 10.12




IRREVOCABLE EXCHANGE AND SUBSCRIPTION AGREEMENT




Cogdell Spencer OP

Cogdell Spencer Inc.

4401 Barclay Downs Drive

Suite 300

Charlotte, North Carolina 28209-4670




August 8, 2005




Ladies and Gentlemen:




     Reference is made to the Cogdell Spencer Inc. Consent Solicitation Statement and Confidential
Offering Memorandum, dated May 27, 2005 (the “Confidential Offering Memorandum”) relating
to the private offering of units representing limited partnership interests (the “OP
Units”) to be issued by Cogdell Spencer LP, a newly formed Delaware limited partnership
(“Cogdell Spencer OP”), or shares of Common Stock, par value $.01 per share, (the
“Common Stock”), to be issued by Cogdell Spencer Inc., a newly organized Maryland
corporation (the “Company”), which intends to qualify as a real estate investment trust (a
“REIT”) for U.S. federal income tax purposes. A copy of the Confidential Offering
Memorandum has been received and reviewed by the undersigned. Capitalized terms used but not
otherwise defined in this Irrevocable Exchange and Subscription Agreement shall have the respective
meanings ascribed to them in the Confidential Offering Memorandum.



     The undersigned (the “Exchanging Member”) is a holder of limited liability company,
general or limited partnership interests in those limited liability companies or limited
partnerships (the “Existing Entities”) and of shares of common stock in Cogdell Spencer
Advisors Inc., a North Carolina corporation (CSA”), all as described on the attached Investor
Information Page. We refer to the limited liability company, general or limited partnership
interests in the Existing Entities and the shares of CSA common stock shown on such Investor
Information Page collectively as the “Interests.” The Investor Information Page also sets
forth, in the applicable column, the number of OP Units or shares of Common Stock to being offered
to the Exchanging Member in exchange for the Interests. Such number of OP Units is referred to
herein as the “Offered OP Units” and such number of shares of Common Stock is referred to
herein as the “Offered Shares.”



     By executing this agreement, the Exchanging Member waives any right it may have to elect to
receive any consideration under the Transaction Agreements for any of the Existing Entities and
irrevocably agrees, upon satisfaction of the conditions in Sections 5 and 6 of this agreement, to
receive in exchange for such Interests either the Offered OP Units or Offered Shares, as indicated
on the Investor Information Page. The securities so elected to be received by the Exchanging
Member as described in paragraph 1.A below are referred to herein as the “Elected
Securities.”



     1. Exchange, Subscription and Consent.



     A. Contribution to the Company and Cogdell Spencer OP. By executing this agreement, the
Exchanging Member hereby agrees, subject to the terms and conditions hereof, (i) to contribute to
Cogdell Spencer OP the Interests shown on the Investor Information Page as being slated for
contribution to Cogdell Spencer OP in exchange for which the Exchanging Member will receive on the
closing date (the “Closing Date”) of the Company’s proposed initial public offering (the
“IPO”) the number of OP Units set forth in the applicable line on the Investor Information
Page and (ii) to receive, on the closing



 









 




date of the IPO, in the merger described in the Transaction Agreement relating to CSA, the
number of Offered Shares shown on such Investor Information Page.




     B. Reallocation at the Option of the Company for Tax Reasons. The Company reserves the
right, by written notice to the undersigned, to require the undersigned and CSA to reallocate one
or more Interests slated for contribution under the Transaction Agreement for CSA to be instead
contributed to Cogdell Spencer OP and to require one or more Interests slated for contribution to
Cogdell Spencer OP to be instead contributed under the Transaction Agreement for CSA. The Company
shall exercise such right only if in its reasonable judgment such reallocation is necessary to
protect the status of the Company as a REIT for federal income tax purposes or the tax deferred
nature of the transactions contemplated by this Agreement. The parties agree that any such
reallocation of an Interest shall not change the total number of Elected Securities to be received
by the Exchanging Member under this agreement and under the Transaction Agreement for CSA



     C. Other Matters. The Exchanging Member has delivered to the Company or Cogdell Spencer OP,
as applicable, (a) a duly completed and executed Form W-9 and FIRPTA Affidavit; and (b) two duly
completed and executed signature pages to this Irrevocable Exchange and Subscription Agreement. As
provided in paragraph 9 hereof, by executing this agreement, the Exchanging Member is granting a
power-of-attorney to the Company to execute, on behalf of the undersigned at the closing of the
transactions contemplated hereby (the “Closing”), the Registration Rights Agreement, the
Tax Protection Agreement, the Lock-Up Agreement, the applicable Transaction Agreements, and the
partnership agreement of Cogdell Spencer OP. Such agreements together with this agreement are
collectively referred to in this agreement as the “Subscription Documents.”



     D. . Consents. By executing this agreement, the undersigned and CSA hereby consent and vote
in favor of (i) the participation by the applicable Existing Entity and CSA in the Consolidation
Transaction, as described herein or in the Confidential Offering Memorandum, and (ii) the
Organizational Document Amendments, as described in the Confidential Offering Memorandum.



     2. Representations, Warranties and Covenants of The Exchanging Member. The Exchanging
Member hereby acknowledges, represents and warrants to, and covenants and agrees with the Company
and Cogdell Spencer OP as follows (and each representation and warranty set forth below shall be
deemed remade as of the Closing Date):



          2.1 Authorization. Such Exchanging Member represents and warrants that such
Exchanging Member has full power and authority to enter into the Subscription Documents and to
consummate the transactions contemplated by the Subscription Documents, that the execution and
delivery of the Subscription Documents by such Exchanging Member and the consummation by such
Exchanging Member of the transactions contemplated by the Subscription Documents have been duly
authorized by all necessary action on the part of such Exchanging Member and will not constitute or
result in a breach or default under, or conflict with or violate, any agreement or other
undertaking, to which such Exchanging Member is a party or by which such Exchanging Member is bound
or with any judgment, decree, statute, order, rule or regulation applicable to such Exchanging
Member or such Exchanging Member’s assets, and, if the Exchanging Member is not an individual, will
not violate any provisions of the organizational or other formation or governing documents of such
Exchanging Member. The Subscription Documents have been duly executed and delivered by such
Exchanging Member and constitute valid and legally binding obligations of such Exchanging Member
enforceable against such Exchanging Member in accordance with and subject to their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors’ rights and general principles of equity. The signatures on the Subscription Documents
are genuine, and the signatory, if such Exchanging Member is an individual, has legal competence
and capacity to execute the same, or, if




 









 







such Exchanging Member is not an individual, the signatory has been duly authorized to execute
the same on behalf of such Exchanging Member.




          2.2 Purchase for Investment. Such Exchanging Member is acquiring the Elected
Securities for such Exchanging Member’s own account (or if such Exchanging Member is a trustee, for
a trust account) for investment only, and not with a view to or for sale in connection with any
distribution of all or any part of such Elected Securities, other than the exchange of shares of
CSA common stock for other Elected Securities as contemplated hereby. Such Exchanging Member
hereby agrees that such Exchanging Member shall not, directly or indirectly, transfer all or any
part of such Elected Securities (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of all or any part of the Elected Securities), except in accordance with the
registration provisions of the Securities Act of 1933, as amended (the “Securities Act”),
and the regulations thereunder or an exemption from such registration provisions, with any
applicable state or non-U.S. securities laws, and with the terms of this Irrevocable Exchange and
Subscription Agreement. Such Exchanging Member understands that such Exchanging Member must bear
the economic risk of an investment in the Elected Securities for an indefinite period of time
because, among other reasons, the offering and sale of such Elected Securities have not been
registered under the Securities Act and, therefore, such Elected Securities cannot be resold unless
such resale is subsequently registered under the Securities Act or an exemption from such
registration is available. Such Exchanging Member also understands that sales or transfers of such
Elected Securities are further restricted by the provisions of the Company’s charter or the
organizational agreements of Cogdell Spencer OP, and may be restricted by other applicable
securities laws. If at any time the Elected Securities are evidenced by certificates or other
documents, each such certificate or other document shall contain a legend stating that (i) such
Elected Securities (1) have not been registered under the Securities Act or the securities laws of
any state; (2) have been issued pursuant to a claim of exemption from the registration provisions
of the Securities Act and any state securities law which may be applicable; and (3) may not be
sold, transferred or assigned without compliance with the registration provisions of the Securities
Act and the regulations thereunder and any other applicable federal or state securities laws or
compliance with applicable exemptions therefrom; (ii) sale, transfer or assignment of such Elected
Securities is further subject to restrictions contained in the organizational documents of the
issuer of such securities and such Elected Securities may not be sold, transferred or assigned
unless and to the extent permitted by, and in accordance with, the provisions of the organizational
documents of such issuer; and (iii) sale, transfer or assignment of such Elected Securities (other
than shares of CSA common stock) is subject to restrictions contained in the Lock-Up Agreement
being executed by such Exchanging Member on the date of this agreement.




          2.3 Information. Such Exchanging Member has carefully reviewed this Irrevocable
Exchange and Subscription Agreement, the Confidential Offering Memorandum and the other
Subscription Documents. Such Exchanging Member has been provided an opportunity to ask questions
of, and such Exchanging Member has received answers thereto satisfactory to such Exchanging Member
from, the Company or its representatives regarding the terms and conditions of the offering of the
Elected Securities, and such Exchanging Member has obtained all additional information requested by
such Exchanging Member of Cogdell Spencer OP or the Company and their representatives to verify the
accuracy of all information furnished to such Exchanging Member regarding the offering of such
Elected Securities. Such Exchanging Member represents and warrants that such Exchanging Member has
read the Confidential Offering Memorandum in its entirety and has relied upon and is making his,
her or its subscription decision to acquire the Elected Securities in exchange for its Interests
based solely upon his, her or its review and evaluation of the Confidential Offering Memorandum and
is not relying on CSA or the Company or any of its subsidiaries, affiliates or any of their
respective representatives or agents with respect to any tax or other economic considerations
involved in connection with the subscription for the Elected Securities. Such Exchanging Member
represents and warrants that such Exchanging Member has been advised to consult with his, her or
its tax, legal and other advisors regarding the subscription and its




 









 







effects, the tax consequences of making and not making a subscription hereunder, and has
obtained, in such Exchanging Member’s judgment, sufficient information to evaluate the merits and
risks of a subscription and investment hereunder. Such Exchanging Member has not been furnished
with and has not relied on any oral or written representation in connection with the offering of
the Elected Securities that is not contained in this agreement.




          2.4 Economic and Liquidity Risk. Such Exchanging Member represents and warrants that
such Exchanging Member has such knowledge and experience in financial and business matters such
that such Exchanging Member is capable of evaluating the merits and risks of investing in the
Elected Securities, and that such Exchanging Member has evaluated the risks of investing in the
Elected Securities and has determined that they are a suitable investment for such Exchanging
Member. Such Exchanging Member represents and warrants that such Exchanging Member understands
that an investment in the Elected Securities is a speculative investment that involves very
significant risks and tax uncertainties and that such Exchanging Member is prepared to bear the
economic, tax and other risks of an investment in the Elected Securities for an indefinite period
of time, and is able to withstand a total loss of such Exchanging Members investment in the Elected
Securities.




          2.5 Eligibility; Accredited Investor Status. Such Exchanging Member represents and
warrants that such Exchanging Member is an “accredited investor” as defined in Regulation D under
the Securities Act (“Accredited Investor”). Such Exchanging Member will, upon request,
execute and/or deliver any additional documents deemed by the Company to be necessary or desirable
to confirm such Exchanging Members Accredited Investor status.




          2.6 Ownership of the Exchanging Member’s Entire Interest. Such Exchanging Member
hereby represents and warrants that such Exchanging Member has, or on the Closing Date will have,
good and marketable title to each Interest listed on the Investor Information Page and each such
Interest will on the Closing Date be free and clear of all pledges, claims, liens, restrictions,
charges, encumbrances, security interests, conditional sales agreements and other obligations of
any kind or nature. Such Exchanging Member will, upon request, execute, deliver and/or provide any
additional documents deemed by the Company to be necessary or desirable to confirm the foregoing.
Such Exchanging Member represents and warrants that the information on the Investor Information
Page and on the Supplementary Information Page is true and correct in all material respects.




          2.7 Status as Foreign Person. Such Exchanging Member represents and warrants that he,
she or it is not a foreign person and is not owned directly or indirectly, in whole or in part, by
a foreign person as determined for purposes of Section 897(h)(4) of the Internal Revenue Code of
1986, as amended (the “Code”), and the regulations promulgated thereunder.




          2.8 Continuing Efforts. Subject to the terms and conditions herein provided, such
Exchanging Member covenants and agrees to use its best efforts to take, or cause to be taken, all
actions and do, or cause to be done, all things necessary, proper and/or appropriate to consummate
and make effective the transactions contemplated by this Irrevocable Exchange and Subscription
Agreement.




          2.9 No Brokers or Finders. Such Exchanging Member has not entered into any agreement
and is not otherwise liable or responsible to pay any brokers’ or finders’ fees or expenses to any
person or Entity with respect to this Irrevocable Exchange and Subscription Agreement or the
purchase and issuance of any Elected Securities contemplated hereby, except for any such person or
Entity the fees and expenses for which such Exchanging Member shall be solely responsible for and
pay.




     3. Survival. The representations, warranties, covenants and agreements contained in
this Irrevocable Exchange and Subscription Agreement shall survive the Closing Date.



 









 





     4. Conditions to Consummation by Cogdell Spencer OP and the Company. The obligations
of Cogdell Spencer OP and the Company to accept a subscription from, and to issue the Elected
Securities to, the Exchanging Member pursuant to this Irrevocable Exchange and Subscription
Agreement are subject to the fulfillment of the conditions set forth in this Article 5, any one or
more of which may be waived by the Company:



          4.1 Representations, Warranties and Covenants. The representations and warranties of
the Exchanging Member contained in this Irrevocable Exchange and Subscription Agreement shall be
true, correct and complete in all material respects on and as of the Closing Date with the same
force and effect as though made on and as of such Closing Date unless expressly stated herein to be
made as of a specified date. The Exchanging Member shall have performed in all material respects
all obligations required to be performed by him, her or it under this Irrevocable Exchange and
Subscription Agreement at or prior to the Closing Date.




          4.2 Closing Documents. The Exchanging Member shall have duly executed and delivered
to the Company and Cogdell Spencer OP on or prior to the Closing Date all documents that are
reasonably requested by the Company to effectuate the transactions contemplated hereby.




          4.3 Receipt of Subscription by the Expiration Time. The Subscription Documents and
such other documents or instruments as are, or may be, requested hereunder must be properly
completed and duly executed and returned by the Exchanging Member and received by the Company by
the Expiration Time.




          4.4 Closing Of the IPO and Other Transactions. The closing of the IPO and the
transaction contemplated by the applicable Transaction Agreement shall have occurred or shall be
imminent.




     5. Conditions to Consummation by the Exchanging Member. The obligations of the
Exchanging Member to receive Elected Securities pursuant this Irrevocable Exchange and Subscription
Agreement are subject to the fulfillment of the conditions set forth in this Article 6, any one or
more of which may be waived by him, her or it:



          5.1 Covenants. The Company and Cogdell Spencer OP shall have performed in all
material respects all obligations required to be performed by them under this Irrevocable Exchange
and Subscription Agreement at or prior to the Closing Date.




          5.2 Closing Documents. Cogdell Spencer OP shall have duly executed and delivered on
or prior to the Closing Date the Subscription Documents as herein contemplated.




          5.3 Closing Of the IPO and Other Transactions. The closing of the IPO and the
transactions contemplated by the applicable Transaction Agreements shall have occurred or shall be
imminent.




     6. Indemnity. The Exchanging Member hereby agrees to indemnify and defend the Company
and Cogdell Spencer OP and its affiliates against and to hold them harmless from any and all
damage, loss, liability and expense incurred or suffered by any of them arising out of or based
upon the inaccuracy of any representation or warranty or breach of any agreement made or to be
performed by such Exchanging Member pursuant to this Irrevocable Exchange and Subscription
Agreement or any of the documents or instruments contemplated hereby or referred to herein. The
Company and Cogdell Spencer OP hereby agree to indemnify and defend the Exchanging Member and its
affiliates against and to hold them harmless from any and all damage, loss, liability and expense
incurred or suffered by the



 









 




Exchanging Member or any of its affiliates arising out of or based upon the breach of any
agreement made or to be performed by the Company or Cogdell Spencer OP pursuant to this Irrevocable
Exchange and Subscription Agreement.




     7. Changes to Form Agreements. The Exchanging Member agrees and confirms that the
terms of the OP Units and Common Stock described in the Confidential Offering Memorandum and the
Exhibits thereto are not final and may be modified depending on the prevailing market conditions at
the time of the IPO. By executing this Irrevocable Exchange and Subscription Agreement such
Exchanging Member hereby authorizes Cogdell Spencer OP and the Company to, and understands and
agrees that Cogdell Spencer OP and the Company may, make changes (including changes that may be
deemed material) to the Company’s charter, the by-laws of the Company, the Registration Rights
Agreement, the Tax Protection Agreement, the Lock-Up Agreement and the partnership agreement of
Cogdell Spencer OP, to the Confidential Offering Memorandum, and such Exchanging Member agrees to
receive the Elected Securities, as the case may be, with such final terms and conditions as the
Company determines.



     8. Power-of-attorney. By executing this Irrevocable Exchange and Subscription
Agreement, the undersigned Exchanging Member hereby irrevocably constitutes and appoints the
Company (or a substitute appointed by Company) as his, her or its attorney-in-fact and agent with
full power of substitution to take any and all actions and execute any of the following agreements
on such Exchanging Member’s behalf and in such Exchanging Member’s name: Lock-Up Agreement,
Registration Rights Agreement, the Tax Protection Agreement, the Transaction Agreement, instruments
of assignment, partnership agreements of Cogdell Spencer OP, Organizational Document Amendments of
the Existing Entities, and any other documents related to the consummation of the Consolidation
Transaction, any reallocation of Interests as described in paragraph 1.B above or any of the other
transactions contemplated by this Agreement on such Exchanging Member’s behalf and in such
Exchanging Member’s name, as may be deemed by the Company as necessary or desirable to effectuate
the Consolidation Transaction, IPO, and the other transactions described herein or in the
Confidential Offering Memorandum. The undersigned hereby grants to each attorney-in-fact full
power and authority to do and perform each and every act and thing which may be necessary, or
convenient, in connection with the foregoing, as fully, to all intents and purposes, as the
undersigned might or could do if personally present, hereby ratifying and confirming all that such
attorney-in-fact shall lawfully do or cause to be done by authority hereof. Such power-of-attorney
shall be deemed to be coupled with an interest and shall be irrevocable and shall survive the
death, disability or dissolution of the Exchanging Member.



     9. Partnership Agreement Amendments. By executing this Irrevocable Exchange and
Subscription Agreement, the undersigned Exchanging Member hereby irrevocably constitutes and
appoints the Company (or a substitute appointed by the Company) as his, her or its attorney-in-fact
and agent with full power of substitution, to enter into, on such Exchanging Member’s behalf and in
such Exchanging Member’s name, any amendments to the partnership agreement of Cogdell Spencer OP
approved by the partners in accordance with the terms of such agreement. The undersigned hereby
grants to each attorney-in-fact full power and authority to do and perform each and every act and
thing which may be necessary, or convenient, in connection with the foregoing, as fully, to all
intents and purposes, as the undersigned might or could do if personally present, hereby ratifying
and confirming all that such attorney-in-fact shall lawfully do or cause to be done by authority
hereof. Such power-of-attorney shall be deemed to be coupled with an interest and shall be
irrevocable and shall survive the death, disability or dissolution of the Exchanging Member.



     10. Termination. This agreement shall be irrevocable by the undersigned, but shall
terminate automatically if the Closing has not occurred 12 months after the date of this Agreement.



     11. General Provisions.



 









 





          11.1 Modification. Neither this Irrevocable Exchange and Subscription Agreement nor
any provisions hereof shall be waived, modified, discharged or terminated except by an instrument
in writing signed by the party against whom any waiver, modification, discharge or termination is
sought.




          11.2 Notices. All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the parties at the following addresses or
facsimile numbers:




	 	 	 	 	 
	 

	 	If to the Exchanging Member:
	 	To the address indicated for such
Exchanging Member on the signature page
to this Irrevocable Exchange and
Subscription Agreement.
	 
	 	 	 	 
	 

	 	If to the Company or Cogdell
	 	c/o Cogdell Spencer Advisors, Inc.
	 

	 	Spencer OP:
	 	4401 Barclay Downs Drive
	 

	 	 	 	Suite 300
	 

	 	 	 	Charlotte, North Carolina 28209-4670
	 

	 	 	 	Tel: (704)940-2900
	 

	 	 	 	Fax: (704)940-2957
	 

	 	 	 	Attention: Frank Spencer
	 
	 	 	 	 
	 

	 	 	 	with a copy to:
	 

	 	 	 	Clifford Chance US LLP
	 

	 	 	 	31 West 52nd Street
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Jay Bernstein
	 

	 	 	 	Facsimile: (212) 878-8375





All such notices, requests and other communications will (a) if delivered personally to the address
as provided in this Section 12.2, be deemed given upon delivery; (b) if delivered by facsimile
transmission to the facsimile number as provided in this Section 12.2, be deemed given upon
receipt; and (c) if delivered by mail in the manner described above to the address as provided in
this Section 12.2, be deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other Person to whom a copy of such notice is to
be delivered pursuant to this Section 12.2). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto in accordance with this Section 12.2.




          11.3 Binding Effect. Except as otherwise provided herein, this Irrevocable Exchange
and Subscription Agreement shall be binding upon and inure to the benefit of the parties and their
heirs, executors, administrators, successors, legal representatives and permitted assigns. If the
Exchanging Member is itself more than one person, the obligations of such Exchanging Members shall
be joint and several and the acknowledgements, representations, warranties, covenants and
agreements herein contained shall be deemed to be made by and be binding upon each such person and
his or her heirs, executors, administrators, successors, legal representatives and permitted
assigns.




          11.4 Entire Agreement; Conflicting Provisions. The Subscription Documents contain the
entire agreement of the parties with respect to this subscription, and there are no
representations, warranties, covenants or other agreements except as stated or referred to herein
or therein.




 









 








          11.5 Assignability. This Irrevocable Exchange and Subscription Agreement is not
transferable or assignable by any party hereto. This Irrevocable Exchange and Subscription
Agreement shall be for the benefit of the parties hereto.




          11.6 Applicable Law. This Irrevocable Exchange and Subscription Agreement shall be
governed by and construed in accordance with the laws of the State of Maryland applicable to
contracts made and to be performed entirely within such State.




          11.7 Counterparts. This Irrevocable Exchange and Subscription Agreement may be
executed through the use of separate signature pages or in counterparts, and each of such
counterparts shall, for all purposes, constitute one agreement binding on the parties hereto,
notwithstanding that the parties hereto are not signatories to the same counterpart.




          11.8 Further Assurances. The Exchanging Member will, from time to time, execute and
deliver to the Company all such other and further instruments and documents and take or cause to be
taken all such other and further action as CSA, the Company or Cogdell Spencer OP may reasonably
request in order to effect the transactions contemplated by this Irrevocable Exchange and
Subscription Agreement. Notwithstanding the foregoing, the Company or Cogdell Spencer OP may
request from the Exchanging Member such additional information as it may deem necessary to evaluate
the eligibility of such Exchanging Member to acquire Elected Securities, and may request from time
to time such information as it may deem necessary to determine the eligibility of such Exchanging
Member to hold Elected Securities or to enable CSA, Cogdell Spencer OP or the Company to determine
the Exchanging Member’s compliance with applicable regulatory requirements or tax status, and such
Exchanging Member shall provide such information as may reasonably be requested.




          11.9 Severability. If any term or provision of this Irrevocable Exchange and
Subscription Agreement shall to any extent be invalid or unenforceable, the remainder of this
Irrevocable Exchange and Subscription Agreement shall not be affected thereby, and each term and
provision of this Irrevocable Exchange and Subscription Agreement shall be valid and enforceable to
the fullest extent permitted by law. Upon the determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to
modify this Irrevocable Exchange and Subscription Agreement so as to effect their original intent
as closely as possible in an acceptable manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.




          11.10 Specific Performance. The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to compel specific performance of the obligations of any other
party under this agreement in accordance with the terms and conditions of this agreement.




          11.11 Expenses. Each of the parties hereto agrees to pay the expenses incurred by it
in connection with the negotiation, preparation, execution and delivery of this Irrevocable
Exchange and Subscription Agreement and the consummation of the transactions contemplated hereby,
including the fees and expenses of counsel to such party.




          11.12 Ambiguities. Any ambiguities or questions concerning the undersigned’s
completion or execution of the Consent and Election Form will be resolved by the Company, and its
determination will be final and binding upon undersigned.




[Remainder of this page is intentionally left blank.]




 









 








     IN WITNESS WHEREOF, the parties have executed this Irrevocable Exchange and Subscription
Agreement as of this 8th day of August, 2005.



EXCHANGING MEMBER:




	 	 	 
	/s/
James W. Cogdell
	 	Address:
	 	 	 
	Signature (on behalf of himself individually and

	 	c/o Cogdell Spencer Inc.
	the entities listed on Exhibit A)

	 	4401 Barclay Downs Drive, Suite 300
	 

	 	Charlotte, North Carolina 28209-4670`






	 	 	 	 	 	 	 
	COGDELL SPENCER ADVISORS, INC.:	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	  /s/ Frank
Spencer	 	 	 	 
	 

	 	 	 	 	 	 
	Name:

	 	Frank Spencer	 	 	 	 
	Title:

	 	President	 	 	 	 
	 
	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 
	COGDELL SPENCER LP	 	 	 	 
	By: CS Business Trust I, its General Partner	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	    /s/ Frank Spencer	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Name:
	 	Frank Spencer	 	 	 	 
	 

	 	Title:
	 	Trustee	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	COGDELL SPENCER INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	    /s/ Frank Spencer	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Name:
	 	Frank Spencer	 	 	 	 
	 

	 	Title:
	 	Chief Executive Officer and President	 	 	 	 







 










 






Investor Information Page




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	 
	 	 	Percentage (%)	 	 	 	Offered OP	 	Number of Offered
	Name of Entity	 	Ownership	 	Cash Value ($)	 	Units	 	Shares
	 
	Cogdell Spencer
Advisors, Inc.
	 	85.00	 	21,059,300.80	 	0	 	1,244,503
	Augusta Medical
Partners, LLC
	 	1.95	 	168,906.02	 	9189	 	 
	Baptist Northwest
Limited Partnership
	 	4.99	 	57,011.25	 	3102	 	 
	Cogdell Investors
(Birkdale), LLC
	 	66.74	 	2,661,842.81	 	144805	 	 
	Cogdell Investors
(Birkdale II), LLC
	 	68.10	 	663,999.52	 	36122	 	 
	Cabarrus POB LLC
	 	46.27	 	2,097,374.53	 	114098	 	 
	Cabarrus Medical
Partners, LLC
	 	3.25	 	99,311.94	 	5403	 	 
	East Jefferson
Medical Office
Building Limited
Partnership
	 	11.29	 	695,403.30	 	37830	 	 
	East Jefferson
Medical Specialty
Building Limited
Partnership
	 	5.07	 	361,624.44	 	19673	 	 
	Gaston MOB LLC
	 	9.90	 	822,845.83	 	44763	 	 
	Mulberry Medical
Park Limited
Partnership
	 	3.40	 	63,449.71	 	3452	 	 
	HMOB Associates
Limited Partnership
	 	4.99	 	246,368.84	 	13403	 	 
	Orangeburg Medical
Office Building
General Partnership
	 	0.69	 	17,973.01	 	978	 	 
	Providence Medical
Office Building,
LLC
	 	6.90	 	437,931.56	 	23824	 	 
	Rocky Mount Kidney
Center Associates
Partnership
	 	3.99	 	24,448.84	 	1331	 	 
	Rocky Mount Medical
Park Limited
Partnership
	 	4.99	 	216,602.33	 	11784	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of	 	 
	 	 	Percentage (%)	 	 	 	Offered OP	 	Number of Offered
	Name of Entity	 	Ownership	 	Cash Value ($)	 	Units	 	Shares
	 
	Roper Medical
Office Building,
LLC
	 	4.99	 	195,012.19	 	10609	 	 
	St. Francis
Community Medical
Office Building,
LLC
	 	4.90	 	206,299.36	 	11223	 	 
	St. Francis Medical
Plaza, LLC
	 	7.13	 	490,391.74	 	26678	 	 
	Medical Park III, LP
	 	6.71	 	366,587.56	 	19943	 	 
	Beaufort Medical
Plaza, LLC
	 	15.75	 	527,619.40	 	28703	 	 
	River Hills Medical
Associates, LLC
	 	14.65	 	410,363.16	 	22324	 	 
	Cogdell Investors
(Mallard), LLC
	 	66.33	 	1,668,271.14	 	90754	 	 
	Medical Investors I
	 	37.53	 	2,023,777.20	 	110,093	 	 
	Medical Investors
III
	 	37.53	 	721,207.95	 	39,234	 	 
	Rocky Mount MOB, LLC
	 	3.25	 	90,510.94	 	4924	 	 
	West Medical Office
I, LLC
	 	12.20	 	230,915.74	 	12562	 	 
	Rowan OSC
Investors, LLC
	 	2.50	 	43,217.48	 	2352	 	 
	Copperfield MOB
	 	1.25	 	49,807.84	 	2710	 	 
	Barclay Downs
Associates, LLC
	 	12.14	 	290,998.08	 	15831	 	 
	Cabarrus Land
Company, LLC
	 	3.25	 	188,779.53	 	10270	 	 
	Mary Black Medical
Office Building
Limited Partnership
	 	9.55	 	273,321.62	 	14869	 	 
	Mary Black MOB II
Limited Partnership
	 	1.00	 	5,505.79	 	300	 	 
	Mary Black Westside
Medical Park I
	 	4.99	 	109,241.58	 	5943	 	 
	McLeod Medical
Partners, LLC
	 	0.65	 	40,759.32	 	2218	 	 
	 
	 	 	 	 	 	 	 	 
	Total
	 	 	 	37,626,983.23	 	901,298	 	1,244,503