FORM OF CONTRIBUTION AGREEMENT Between ARIZONA LAND INCOME CORPORATION And POP VENTURE, LLC

Exhibit 2.1

 

[FORM OF] CONTRIBUTION AGREEMENT

Between

ARIZONA LAND INCOME CORPORATION

And

POP VENTURE, LLC

Dated as of November 2, 2006

IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF ARIZONA LAND INCOME CORPORATION, POP VENTURE, LLC, “PACIFIC OFFICE PROPERTIES, L.P.” AND “PACIFIC OFFICE PROPERTIES TRUST, INC.”, AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR THE SECURITIES LAWS OF ANY STATE, AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND STATE SECURITIES LAWS. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES REGULATORY AUTHORITY OF ANY STATE, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS AND OTHER LAWS GOVERNING THE OFFER AND SALE OF THE SECURITIES. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISK OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.

THIS CONTRIBUTION AGREEMENT (this “Agreement”) is made and entered into as of this 2^nd day of November, 2006 (the “Contract Date”), by and among POP Venture, LLC, a Delaware limited liability company (“Contributor”), each other party reflected on the signature page hereto under “Contributor and the Other LP Unit Recipients” and Arizona Land Income Corporation, an Arizona corporation (“Acquiror”).

 

1.

INTRODUCTION.

Acquiror and Contributor entered into a certain Master Formation and Contribution Agreement dated as of October 3, 2006 (the “Master Agreement”). The Master Agreement sets forth the terms pursuant to which Acquiror and Contributor shall create an “UPREIT” subsidiary limited partnership of Acquiror. The UPREIT shall acquire from Contributor, or the POP Member designated by Contributor, the Member Interest (as hereinafter defined) in exchange for the UPREIT’s issuance of certain Common Units and “Convertible Preferred Units.” The UPREIT, through the POP Affiliate (as hereinafter defined), shall indirectly own, in full, and in fee simple, the Project (as hereinafter defined). All capitalized terms used in this Agreement and not defined shall have the meaning ascribed to such terms in the Master Agreement.

 

2.

CONTRIBUTION.

Contributor, or the POP Member designated by Contributor, agrees to contribute and convey to Acquiror, and Acquiror agrees to accept and assume from Contributor (or the designated POP Member), for the Gross Asset Value and on the terms and conditions set forth in this Agreement, all of Contributor’s right, title and interest in Contributor’s membership interest, or that of the designated POP Member (in either case, the “Member Interest”) in [name of applicable POP Affiliate] (the “POP Affiliate”). The POP Affiliate is the [indirect] [fee simple owner] [ground lessee] of the Project, which Project includes that certain building or buildings (individually or collectively referred to herein as the “Building”), as more particularly described on Exhibit B attached hereto. The Building is leased to certain tenants, principally for commercial office purposes. For purposes of this Agreement, the term “Project” shall mean, collectively: (i) all of the parcels of land described on Exhibit A attached hereto (collectively, the “Land”), together with all rights, easements and interests appurtenant thereto, including, but not limited to, any streets or other public ways adjacent to said Land; (ii) all improvements located on the Land, including, but not limited to, the Building, and all other structures, systems, and utilities associated with, and utilized in the ownership and operation of the Building (all such improvements being collectively referred to herein as the “Improvements”); (iii) all personal property not owned by any tenant at the Building and either (A) located on or in the Land or Improvements, or (B) used in connection with the operation and maintenance of the Project (collectively, the “Personal Property”), including, without limitation, all fixtures and other built-in improvements and equipment necessary to operate the Project; (iv) all building materials, supplies, hardware, carpeting and other inventory maintained in connection with the ownership and operation of the Land and/or Improvements and not owned by tenants at the Building (collectively, the “Inventory”); (v) all trademarks, tradenames, development rights and entitlements and other intangible property used or useful in connection with the foregoing (collectively, the “Intangible Personal Property”); (vi) the POP Affiliate’s interest in all leases and other agreements (including, without limitation, any amendment or other modification of a lease) to occupy, or concerning the occupancy of, all or any portion of the Land and/or

 

1

Improvements in effect on the Contract Date or into which the POP Affiliate enters prior to Closing, (collectively, the “Leases”); and (vii) Contributor’s interest, if any, in and to any and all leasing, service and management contracts pursuant to which services are provided in connection with the ownership and operation of the Building.

 

3.

CONTRIBUTION CONSIDERATION; LP UNITS; TAX MATTERS.

3.1.        General. It shall be a Contributor’s Condition Precedent (as defined in Section 11.2) that, prior to the Closing, Acquiror shall file with the Secretary of State of the State of Delaware the UPREIT’s certificate of formation and shall immediately thereafter assign (the “Assignment”) its entire right, title and interest in, to and under this Agreement to Pacific Office Properties, L.P., a Delaware limited partnership (the “UPREIT”). The sole general partner of the UPREIT shall be Pacific Office Properties Trust, Inc., a Maryland corporation, Acquiror’s successor by merger as more particularly described in the Master Agreement (the “REIT”) and a publicly-traded real estate investment trust. Simultaneously with, and in all events subject to, and conditional upon, the consummation of the Assignment, the UPREIT shall assume all of Acquiror’s obligations and responsibilities under this Agreement.

3.2.        Contribution Consideration. The consideration for the contribution by Contributor of the Member Interest and the Contributed Assets to the UPREIT for the Project (the “Contribution Consideration”), shall consist of that number of Common Units and Convertible Preferred Units (the allocation between Common Units and Convertible Preferred Units is more specifically described in Section 3.3.1 below) having an aggregate value, calculated as provided in Section 3.3.2 below, equal to (the “Total LP Unit Amount”): the sum of: (A) the Gross Asset Value assigned to the Project, as determined pursuant to Exhibit C attached hereto; minus (B) the sum of any POP Property Indebtedness with respect to the Project, as provided on Exhibit C attached hereto, as Exhibit C may be modified (pursuant to the next succeeding sentence or otherwise); minus (C) the Reduction Amount (as defined in Section 14); minus (D) any other adjustments described in this Agreement (“Adjustments”) occurring on or prior to the Closing Date in favor of Acquiror; plus (E) any Adjustments occurring on or prior to the Closing Date in favor of Contributor; and plus (F) any reserves, deposits and escrows maintained by Contributor with the lender holding the POP Property Indebtedness encumbering the Project. The parties agree that, in the event the Closing Statement (as defined below) includes information that differs from that reflected on Exhibit C with respect to the Gross Asset Value and any POP Property Indebtedness with respect to the Project, all such information included within the Closing Statement shall be controlling in all such respects. Notwithstanding the preceding contemplated calculations, however, none of such calculations shall occur at Closing if they are duplicative of calculations described under the Master Agreement for purposes of determining Gross Asset Value. If the above-described calculation of Contribution Consideration would result in a fractional number of LP Units (as hereinafter defined) to be delivered to Contributor, the UPREIT shall round that fraction up or down, as the case may be, to the nearest whole number of LP Units. The Project is to be acquired by the UPREIT subject to the corresponding items of POP Property Indebtedness with respect to the Project. No portion of the Contribution Consideration shall be paid in cash. Provided that all conditions precedent to Acquiror’s obligations to close as set forth in this Agreement (collectively, “Acquiror’s Conditions Precedent”) have been satisfied and fulfilled, or waived in writing by Acquiror, the

 

2

Contribution Consideration shall be paid to Contributor at Closing pursuant to Section 3.3 below.

 

3.3.

LP Units.

3.3.1.        The Total LP Unit Amount shall be paid by the UPREIT’s delivery of Common Units in the UPREIT having a value equal to twenty five percent (25%) of, and Convertible Preferred Units in the UPREIT having a value equal to seventy five percent (75%) of, the Total LP Unit Amount (collectively, the “LP Units”). The Total LP Unit Amount and the allocation thereof shall be set forth in the LP Unit Schedule (as defined below). The LP Units shall be redeemable for shares of common stock of the REIT (“Stock”) or cash (or a combination thereof) in accordance with the redemption procedures described in the UPREIT Agreement. Contributor acknowledges that the LP Units are not certificated and that, therefore, the issuance of the LP Units shall be evidenced by the execution and delivery of an amendment to the UPREIT Agreement, which amendment shall be executed and delivered by the REIT at Closing (the “Amendment”).

3.3.2.        At Closing, all LP Units shall be issued, delivered and distributed to Contributor unless at or prior to Closing, Contributor directs the UPREIT to issue, deliver and distribute any or all of the LP Units to those LP Unit recipients set forth on Exhibit D attached hereto (together with Contributor, the “LP Unit Recipients”), in which event the UPREIT shall follow the Contributor’s direction with respect to the issuance, delivery and distribution of LP Units. Each LP Unit Recipient shall receive, with respect to the Project, as reflected on Exhibit D, that number of LP Units (subject to appropriate rounding to eliminate fractional LP Units) as shall be set forth on Exhibit D; provided, however, that in the event the Closing Statement sets forth and contains information with respect to the breakdown of the Total LP Unit Amount among LP Unit Recipients that differs from that reflected on Exhibit D, the Closing Statement shall be controlling in all such respects. The number of LP Units issued to each LP Unit Recipient with respect to the Project shall equal the product of (A) the Total LP Unit Amount, multiplied by (B) the “Ownership Percentage in Subject Project” (expressed as a fraction) of each LP Unit Recipient as reflected on Exhibit D. The number of LP Units issued to each LP Unit Recipient shall be allocated between Common Units and Convertible Preferred Units on the same percentage basis described in the first sentence of Section 3.3.1 above.

3.3.3.        For purposes of determining the number of LP Units to be delivered in satisfaction of payment of the Total LP Unit Amount, the Common Units shall have a per unit value equal to the Adjusted Per Share Value, and the Convertible Preferred Units shall have a per unit value of $25.00 (each, a “Unit Price”). The LP Unit Schedule shall reflect the Unit Price.

3.3.4.        Contributor shall deliver to Acquiror, no later than ten (10) days prior to Closing, and shall cause its partners, shareholders, members or other equity interest holders, as the case may be (“Interest Holders”), and any other LP Unit Recipient to also deliver to Acquiror, or to any other party designated by Acquiror, no later than ten (10) days prior to Closing, a completed questionnaire and representation letter (in substantially the form set forth in Exhibit E attached hereto, the “Investor Materials”) providing, among other things, information concerning Contributor’s, each Interest Holder’s and each LP Unit Recipient’s status

 

3

as an accredited investor (“Accredited Investor”), as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”), and shall provide or cause to be provided to Acquiror, or to any other party designated by Acquiror, such other information and documentation as may reasonably be requested by Acquiror in furtherance of the issuance of the LP Units as contemplated hereby. Notwithstanding anything contained in this Agreement to the contrary, in the event that, in the reasonable opinion of Acquiror, based on advice of its securities counsel, (i) any such person or entity providing Investor Materials is not considered an Accredited Investor, (ii) the proposed issuance of LP Units hereunder might not qualify for the exemption from the registration requirements of Section 5 of the Securities Act, or (iii) the proposed issuance of LP Units hereunder would violate any applicable federal or state securities laws, rules or regulations, or agreements to which the REIT or the UPREIT is subject, or any tax related or other legal rules, agreements or constraints applicable to Acquiror, the REIT or the UPREIT, Acquiror shall so advise Contributor, in writing (the “Regulatory Violation Notice”). In the event a Regulatory Violation Notice is delivered for the reason set forth in clause (i) above, the interest of each and every person or other entity with respect to which Acquiror delivers a Regulatory Violation Notice shall be redeemed by the appropriate Contributor, at no cost to any or all of Acquiror, the REIT and the UPREIT, at least two business days prior to the Closing Date. In the event of any such redemption, the Closing Statement shall reflect the updated list of LP Unit Recipients and the revised ownership percentages in the appropriate LP Unit Recipients and the Project resulting from such redemption. Subject to the terms of the Master Agreement, in the event a Regulatory Violation Notice is delivered for another reason, this Agreement shall terminate, and no party shall have any further liability hereunder except (a) as otherwise expressly set forth in this Agreement and (b) to the extent a breach of this Agreement gives rise to, or becomes the basis for, the Regulatory Violation Notice.

3.3.5.        Contributor hereby covenants and agrees that it shall deliver or shall cause each of its partners, shareholders, members and any other LP Unit Recipient to deliver to Acquiror, or to any other party designated by Acquiror, any documentation that may be required under the UPREIT Agreement or any charter document of the REIT, and such other information and documentation as may reasonably be requested by Acquiror, at such time as any LP Units are redeemed for shares of Stock (“Conversion Shares”). The preceding covenant shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing.

3.3.6.        The parties acknowledge that, except to the extent that any portion of the Total LP Unit Amount consists of cash, Contributor intends for the transfer of the Project in exchange for LP Units (the “Exchange”) to result in non-recognition of gain or loss for federal income tax purposes pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “Code”) (such treatment, the “Intended Tax Treatment”). Acquiror, the UPREIT and the REIT shall cooperate in all reasonable respects with Contributor to facilitate such Intended Tax Treatment; provided, however, that:

 

(i)

The Closing shall not be extended or delayed by reason of such Intended Tax Treatment, unless Acquiror has breached its obligations to Contributor under this Agreement;

 

4

(ii)

None of Acquiror, the UPREIT nor the REIT shall be required to incur any additional extraordinary (as opposed to a normal, customary and recurring) cost or expense as a result of such Intended Tax Treatment, other than the cost of Acquiror’s counsel in connection with the preparation of this Agreement. Notwithstanding anything to the contrary in the foregoing sentence, the UPREIT and the REIT shall be responsible for costs associated with any Internal Revenue Service audit made directly of either or both of the UPREIT and the REIT relating to their respective operations (as opposed to an audit that is ancillary to an audit made of any or all of the entities comprising the Contributor). In the event of the occurrence of an audit made directly of any or all of the entities comprising the Contributor, and relating to the Contributor’s operations, the Contributor shall be responsible for all costs associated therewith. Contributor hereby covenants and agrees that it shall, promptly on demand, reimburse Acquiror, the UPREIT or the REIT for any additional extraordinary cost or expense (as opposed to a normal, customary and recurring cost or expense, such as the analysis or computation related to the manner in which depreciation and built-in gain are allocated amongst the LP Unit Recipients), including, but not limited to, reasonable attorneys’ fees, actually incurred by any or all of Acquiror, the UPREIT and the REIT as a result of structuring the Exchange in order to achieve the Intended Tax Treatment, or which additional extraordinary cost or expense is or may be otherwise directly attributable thereto; and

 

(iii)

Subject to the UPREIT’s and the REIT’s performance and fulfillment in all material respects of the express covenants and conditions contained in this Agreement, none of Acquiror, the UPREIT or the REIT warrant, nor shall any of them be responsible for, the federal, state or local tax consequences to any or all of Contributor, any or all of the Interest Holders and any or all of the LP Unit Recipients resulting from either (i) the transactions contemplated by this Agreement or (ii) the allocation, if any, of losses and liabilities of the UPREIT to and among the Contributor or any of the Interest Holders in Contributor under the UPREIT Agreement, the Code or Treasury Regulations promulgated under the Code.

The provisions of this Section 3.3.6 shall survive the Closing and shall not merge into any conveyancing documents delivered at Closing.

3.4.        UPREIT Agreement; Other Informational Materials. For purposes hereof, the term “UPREIT Agreement” shall mean the form of limited partnership agreement upon which Acquiror and Contributor have agreed on or prior to the date hereof and that shall be filed by Acquiror as an exhibit to a Current Report on Form 8-K within four (4) business days following the date hereof. Contributor hereby acknowledges and agrees that the ownership of LP Units by it and its respective rights and obligations as a limited partner of the UPREIT (including, without limitation, its right to transfer, encumber, pledge and exchange LP Units) shall be subject to all of the express limitations, terms, provisions and restrictions set forth in this Agreement and in the UPREIT Agreement. (In the event that there are any LP Unit Recipients in addition to Contributor, then Contributor shall cause such LP Unit Recipients to execute a joinder to this Agreement for purposes of acknowledging their agreement to be bound by the

 

5

provisions of this Section 3.4 and any and all other appropriate provisions of this Agreement upon which Acquiror and Contributor mutually and reasonably agree, including, but not limited to, any representations and warranties made by Contributor that should also be appropriately made by the LP Unit Recipients.) In that regard, Contributor and the other LP Unit Recipients hereby covenant and agree that, at Closing, they shall execute any and all documentation reasonably required by the UPREIT and the REIT to formally memorialize the foregoing (collectively, the “UPREIT Agreement Adoption Materials”). Contributor and the other LP Unit Recipients acknowledge that they have received and reviewed, or shall receive and review, prior to the Closing Date, the following: (i) Acquiror’s Annual Report on Form 10-K for the year ended December 31, 2005; (ii) Acquiror’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006, June 30, 2006 and September 30, 2006 (assuming the filing thereof prior to the Closing); (iii) Acquiror’s Notice of Annual Meeting of Stockholders and Proxy Statement in connection with Acquiror’s 2005 Annual Meeting of Stockholders; (iv) Current Reports on Form 8-K of Acquiror since January 1, 2006; (v) the UPREIT Agreement and (vi) Acquiror’s proxy statement and all additional proxy solicitation materials in connection with Acquiror’s special meeting of stockholders to approve the transactions contemplated in the Master Agreement. Contributor and the other LP Unit Recipients acknowledge that they: (a) have had an opportunity to conduct a due diligence review of the affairs of Acquiror; and (b) have been afforded the opportunity to ask questions of, and receive additional information from, Acquiror regarding the REIT and the UPREIT.

3.5.        Lock-Up Period. The LP Unit Recipients agree that for a period equal to two (2) years following the Closing (the “Lock-Up Period”), the LP Unit Recipients may not, pursuant to the terms of the UPREIT Agreement, in any way or to any extent, exchange, convert or redeem any or all of the Common Units issued to them at Closing into shares of the REIT’s common stock or any other form. The provisions of this Section 3.5 shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing.

3.6.        Volume Restriction. From and after the expiration of the Lock-Up Period, the LP Unit Recipients may sell Stock only in compliance with the applicable resale limitations of Rule 144 under the Securities Act. The provisions of this Section 3.6 shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing.

3.7.        Registration Rights. At Closing, Acquiror shall cause the REIT to confer to Contributor the benefits of its Master Registration Rights Agreement, dated on or before Closing (including the supplement thereto into which the parties shall enter at Closing, the “Registration Rights Agreement”), a copy of which has been delivered to Contributor.

3.8.         Partnership Liabilities and Sale of the Project.

3.8.1.        For a period of ten (10) years following the Closing, the REIT shall not, and shall cause the UPREIT to not:

 

(i)

sell the Project (or membership interests or other equity interests in the POP Affiliate or successors thereto) other than pursuant to a tax-deferred exchange effectuated in compliance with Section 1031 of the Code, and shall refrain from

 

6

selling any acquired replacement properties (or membership interests therein) other than pursuant to Section 1031;

 

(ii)

defease or prepay any of the POP Property Indebtedness with respect to the Project other than for purposes of concurrent refinancing of those assets with non-recourse mortgage debt of equal or greater amount;

 

(iii)

subject the entirety, or any portion, of the Project to cross-default or cross-collateralization with other assets of the UPREIT; and

 

(iv)

provide any guaranty or additional collateral for any of the assumed debt encumbering the Project.

3.8.2.        For a period of ten (10) years following the Closing, the REIT shall and shall cause the UPREIT to:

 

(i)

promptly replace any portion of the Project that is condemned or lost to casualty;

 

(ii)

provide, in the event of an unavoidable loss of mortgage indebtedness allocable as basis to the Project, whether through transfer of ownership of the Project to a taxable subsidiary of the REIT or otherwise, an opportunity for Contributor to replace such indebtedness for tax basis purposes with a surrogate for lost basis in the form of a liquidation-based guaranty of a sufficient quantity of UPREIT payables and obligations outstanding at any time; and

 

(iii)

provide, in the event of an inability of the UPREIT to comply with the above parameters, a make-whole cash payment by the UPREIT to Contributor in the full amount of all state and federal tax obligations incurred by them pursuant to special allocations of built-in gain made to them as a result of the sale, defeasance or failure of replacement of the Project (or membership interests or other equity interests in the POP Affiliate or successors thereto), in the full amount of the resulting state and federal tax obligations of Contributor (at the maximum personal rate), plus a gross-up payment sufficient to defray the state and federal taxes applicable to such make-whole payment.

3.8.3.         Without limitation of the above, at such time as any sale of the Project (or membership interests or other equity interests in the POP Affiliate or successors thereto) or defeasance of the loan(s) encumbering the Project is foreseeable, or a condemnation or casualty has occurred or is in process (in the case of a condemnation), the UPREIT shall promptly notify Contributor of such known facts, and shall provide it with full disclosure of the operative circumstances, and an opportunity to provide input with respect to the determination of the strategy for perpetuating tax deferral.

3.8.4.         Notwithstanding the provisions of this Section 3.8, the obligation of either or both of the REIT and the UPREIT to undertake those activities set forth in Sections 3.8.1, 3.8.2 and 3.8.3 hereof shall, in all events, be subject to, and otherwise interpreted consistent with, the REIT’s fiduciary and statutory obligations to all partners (both present and future) in the UPREIT, and to its stockholders, both present and future. Further, for purposes of

 

7

this Section 3.8 and except as otherwise provided in Section 3.9, the LP Unit Recipients agree that neither the REIT nor the UPREIT shall be required to obtain any approval, consent or waiver from, or take direction from, or otherwise communicate with, any person or representative or entity concerning the Project, other than the person(s) designated in Section 19 herein (the “Project Contact(s)”). Notification of the Project Contacts for the Project shall constitute sufficient and effective notification to all Interest Holders associated with the Project, and written communications from the Project Contact(s) for the Project shall bind all Interest Holders associated with, related to, or having an interest in, the Project.

The provisions of this Section 3.8 shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing.

3.9.        Notice of Certain Transactions.

3.9.1.        Provided that the obligations of the REIT and the UPREIT under Section 3.8 shall not have terminated by the terms of such section, in the event that, on or before the tenth anniversary of the Closing Date, a post-Closing sale of the Project that will not provide the UPREIT with an opportunity to continue to defer Contributor’s tax deferral (whether pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended, or otherwise) (a “Tax-Related Event”) is considered reasonably likely to occur, in the reasonable judgment of the UPREIT, then the UPREIT shall give written notice of such Tax-Related Event (a “Tax-Related Notice”) to the Project Contacts for the Project as soon as practicable after the UPREIT concludes that a Tax-Related Event is reasonably likely to occur, or, if later, on the date on which the UPREIT is, in the reasonable judgment of its securities counsel, legally permitted, under applicable federal and state securities laws and regulations, and the rules and regulations of the New York Stock Exchange, to disseminate such Tax-Related Notice to the Project Contacts.

3.9.2.        Upon their receipt of a Tax-Related Notice, the Project Contacts shall designate a single spokesperson from among them to represent the Interest Holders in connection with the Tax-Related Event that triggered the delivery of such Tax-Related Notice (the “Spokesperson”). The LP Unit Recipients hereby irrevocably appoint any Spokesperson so designated as their attorney-in-fact, with full power to grant in the name of and on behalf of such LP Unit Recipient, any and all consents, waivers, approvals, and to execute any and all documents required or appropriate to be executed, whether with respect to this Agreement, the UPREIT Agreement or otherwise; provided, however, that such attorney-in-fact may only act within the scope necessitated by the Tax-Related Event giving rise to the appointment of such Spokesperson. The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest. The UPREIT and the REIT shall be entitled to rely on the first written notice either of them receives that designates a Spokesperson with respect to a given Tax-Related Event, and shall be under no obligation to deal with any person other than the Spokesperson so designated in connection with the subject Tax-Related Event as it relates to the LP Unit Recipients. The UPREIT and the REIT shall have no obligation to deal with any person or entity whatsoever in connection with a Tax-Related Event unless and until a Spokesperson is properly designated. The UPREIT and the REIT, and their respective independent accountants, attorneys and other representatives and advisors, shall cooperate with the Spokesperson in order to consider strategies proposed by or through the Spokesperson (it

 

8

being understood that neither the REIT nor the UPREIT shall have any obligation whatsoever to propose any such strategies), on behalf of affected LP Unit Recipients, which strategies are designed or intended to defer or mitigate any recognition of gain under the Code by any LP Unit Recipient or any shareholder or partner in any LP Unit Recipient (any such gain recognition being referred to herein as an “Adverse Tax Consequence”) that may result from a Tax-Related Event, whether such strategies involve any or all of the LP Unit Recipients (including Contributor) on a basis independent of the REIT and UPREIT, or in conjunction with the REIT or the UPREIT. Each party shall pay its own fees and expenses incurred in connection with the procedure delineated in this Section 3.9.2. Under this Section 3.9.2, the UPREIT and the REIT are only obligated to cooperate with the Spokesperson on behalf of any LP Unit Recipient (or any partner, shareholder or member of any LP Unit Recipient) who may be facing an Adverse Tax Consequence, in connection with such LP Unit Recipient’s determination of the efficacy of tax-deferral or tax-mitigation alternatives proposed by or through the Spokesperson that may involve the REIT or the UPREIT. In no event shall either the REIT or the UPREIT be required to incur any expense (other than the cost of professional fees and expenses and administrative expenses incurred in complying with this Section 3.9) in connection with its cooperation under this Section 3.9, nor shall any transaction duly approved by the Board of Directors of the REIT that results in a Tax-Related Event be required to be suspended, postponed, impeded or otherwise adversely affected by virtue of any potential Adverse Tax Consequence. The provisions of this Section 3.9 shall survive the Closing and shall not merge into any of the conveyancing documents delivered at Closing.

 

4.

CLOSING.

The contribution of the Member Interest and the delivery of LP Units contemplated herein shall be consummated at a closing (the “Closing”), to take place commencing at 10:00 a.m. Central Standard Time at the offices of Contributor’s counsel, Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLP, 333 West Wacker Drive, Suite 2700, Chicago, Illinois 60606, or at such other place as the parties may agree upon in writing, on a date in January, 2007 as mutually agreed upon by the parties in writing (the “Closing Date”). The Closing shall be effective as of 12:01 a.m. Central Standard Time on the Closing Date. Notwithstanding the foregoing, the risk of loss of all or any portion of the Project prior to the Closing shall be governed by Section 16 of the Master Agreement.

 

5.

INTENTIONALLY OMITTED.

 

6.

CONFIDENTIALITY.

Each party agrees to maintain in confidence, and not to disclose (and shall cause its affiliates, employees and equity holders to maintain in confidence, and not to disclose) to any person or entity (including, without limitation, tenants or tenants’ employees), the information contained in this Agreement or pertaining to the transaction contemplated hereby; provided, however, that each party, its agents and representatives may disclose such information and data (i) to such party’s accountants, attorneys, existing or prospective lenders, investment bankers, accountants, underwriters, ratings agencies, partners, consultants and other advisors in connection with the transactions contemplated by this Agreement (collectively, “Representatives”) to the extent that such Representatives reasonably need to know (in the

 

9

disclosing party’s reasonable discretion) such information and data in order to assist, and perform services on behalf of, the disclosing party; (ii) to the extent required by any applicable statute, law, regulation or Governmental Authority (including, but not limited to, Form 8-K and other reports and filings required by the SEC and other regulatory entities, as described in Exhibit G attached hereto) or by the American Stock Exchange; (iii) in connection with any litigation that may arise between the parties in connection with the transactions contemplated by this Agreement or otherwise relating to the Project or any of them; (iv) to the extent such disclosure is required or appropriate in connection with any securities offering or other capital markets or financing transaction undertaken by the REIT; (v) to the extent such information and data become generally available to the public other than as a result of disclosure by such party or its agents or Representatives; (vi) to the extent such information and data become available to such party or its agents or Representatives from a third party who, insofar as is known to such party, is not subject to a confidentiality obligation to the other party hereunder; and (vii) to the extent necessary in order to comply with each party’s respective covenants, agreements and obligations under this Agreement. In the event the transactions contemplated by this Agreement shall not be consummated, such confidentiality shall be maintained indefinitely.

 

7.

CONVEYANCE MATTERS.

7.1.        Conveyance of Member Interest. At Closing, Contributor shall deliver to Acquiror the fully completed and fully executed Members Instrument.

7.2.        Title Commitment. Prior to Closing, Contributor shall deliver to Acquiror a commitment (the “Title Commitment”) for the Land, dated after the Contract Date, issued by First American Title Insurance Company (the “Title Company”), for an owner’s title insurance policy (the “Title Policy”), ALTA Policy Form B-2006, in the full amount of the Gross Asset Value.

7.3.        Survey. Prior to Closing, Contributor shall deliver to Acquiror a copy of an existing survey for the Land and Improvements.

7.4.        Title at Closing. At Closing, the Land shall be free and clear of all liens, covenants, restrictions, easements and other title exceptions or objections except for the Permitted Exceptions. Title to the Land at Closing shall be good and marketable and insured by the Title Company with such endorsements as Acquiror shall reasonably require.

7.5.        Permitted Exceptions. For purposes of this Agreement, the term, “Permitted Exceptions” shall mean:

 

(i)

real estate taxes and assessments not yet due and payable;

 

(ii)

covenants, restrictions, easements and other similar agreements, provided that the same are not violated by existing improvements or the current use and operation of the Project, or if so violated that the same do not materially impair the value of the Project and that the violation of the same will not result in a forfeiture or reversion of title;

 

10

(iii)

zoning laws, ordinances and regulations, building codes and other governmental laws, regulations, rules and orders affecting the Project, provided that the same are not violated by existing improvements or the current use and operation of the Project, or if so violated that the same do not materially impair the value of the Project or that such violation will not result in a forfeiture or reversion of title;

 

(iv)

any minor imperfection of title which (a) does not affect the current use, operation or enjoyment of the Project, (b) does not render title to the Project unmarketable or uninsurable, and (c) does not materially impair the value of the Project;

 

(v)

the POP Property Indebtedness encumbering the Project;

 

(vi)

any Leases with respect to the Project;

 

(vii)

any encroachments or any other matters evidenced by Contributor’s existing owner’s policy or the Title Commitment or as disclosed by Contributor’s existing survey; and

 

(viii)

as otherwise noted herein or in any schedule hereto.

7.6.        No Subsequent Exception. From and after the date of this Agreement, Contributor shall not take any action, nor fail to take any action that would cause title to the Project to be subject to any material title exceptions or objections, other than the Permitted Exceptions.

 

8.

REPRESENTATIONS AND WARRANTIES.

8.1.        Contributor and LP Unit Recipients. Contributor and each LP Unit Recipient represents and warrants to Acquiror that the following matters are true as of the Contract Date and shall be true as of the Closing Date and covenants as follows:

8.1.1.        Member Interest. (i) At Closing, Contributor shall either (a) own the Member Interest or (b) have the power and right to direct and cause the conveyance of the Member Interest to occur, in either case free and clear of any and all liens, encumbrances and interests of any third parties (except those of the holder of the POP Property Indebtedness); (ii) at Closing, Contributor shall have good right and lawful authority to assign, transfer and deliver (or to direct the assignment, transfer and delivery of) the Member Interest and the Members Instrument as provided herein; (iii) the execution and delivery of the Members Instrument and the assignment and transfer of the Member Interest to the UPREIT does not, to Contributor’s knowledge, conflict with any material agreement, contract or other obligation or restriction affecting or binding upon Contributor, the Member Interest, or the underlying Project; and (iv) to Contributor’s knowledge, no authorization, approval or other action by and, no notice to or filing with, any governmental authority is required for assignment and transfer of the Member Interest to the UPREIT or for the execution or delivery of the Members Instrument.

8.1.2.        Descriptive Information. The descriptive information concerning the Project set forth in Section 2 and in all exhibits referred to in Section 2 are, to Contributor’s knowledge, complete, accurate, true and correct in all material respects.

 

11

8.1.3.        Title to Project. The POP Affiliate indirectly holds fee simple title to the Land and the Building, subject only to the Permitted Exceptions. The ownership structure of the Project is depicted and summarized on Exhibit F attached hereto and incorporated herein by this reference.

8.1.4.        Contributor’s Deliveries. All items delivered by Contributor pursuant to this Agreement, are, to Contributor’s knowledge, true, accurate, correct and complete in all material respects, and fairly present the information set forth in a manner that is not materially misleading. Contributor has delivered or made available to Acquiror true and complete copies of all of the Leases and other material agreements relating to or affecting the ownership and operation of the Project.

8.1.5.        Defaults. To Contributor’s knowledge, neither the execution of this Agreement nor the consummation of the Transactions will: (i) subject to any approval that may be required under any or all of the POP Property Indebtedness with respect to the Project, the applicable POP Operating Agreement, and any tenancy-in-common or joint venture agreement to which the Project may be subject, conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement or instrument to which the POP Affiliate is a party or by which the POP Affiliate or the Project is bound, (ii) subject to any approval required under any or all of the POP Property Indebtedness with respect to the Project, the applicable POP Operating Agreement, and any tenancy-in-common or joint venture agreement to which the Project may be subject, violate any restriction, requirement, covenant or condition to which the POP Affiliate is subject or by which the POP Affiliate or the Project is bound, (iii) constitute a violation of any applicable code, resolution, law, statute, regulation, ordinance, rule, judgment, decree or order applicable to the POP Affiliate, or (iv) result in the cancellation of any contract or Lease pertaining to the Project; except in any instance in any of (i) – (iv) such as would not have a POP Material Adverse Effect.

8.1.6.        Contracts. To Contributor’s knowledge, and except with respect to property management agreements and other service agreements that are normal and customary for the operation of the Project, there are no contracts relating to the management, leasing, operation, maintenance or repair of the Project, except those which may be terminated without penalty or other payment by Contributor (or its assignee, including Acquiror, or successor) upon no more than thirty (30) days’ prior notice.

8.1.7.        Leases. With respect to each Lease and to Contributor’s knowledge:

(a)        subject to Section 8.1.14, such Lease is legal, valid, binding, enforceable and in full force and effect against the lessor thereunder in accordance with its respective terms, subject to the qualification that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws, now or hereafter in effect, affecting creditors’ rights generally, and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding for the enforcement thereof may be brought and further subject to any other legal defenses to enforcement that may be available to such lessor; and subject to Section 8.1.14, such Lease is legal, valid, binding, enforceable and in full force and effect against the tenant named

 

12

therein and any other party thereto in accordance with its terms, subject to the qualification that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws, now or hereafter in effect, affecting creditors’ rights generally, and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding for the enforcement thereof may be brought;

(b)        neither the landlord under such Lease nor any other party to such Lease is in breach or default (subject to applicable notice and cure periods) that would have a POP Material Adverse Effect; and no event has occurred that permits termination, modification or acceleration, such that any such termination, modification or acceleration would have a POP Material Adverse Effect;

(c)        neither the landlord under the Lease nor any other party to such Lease has repudiated (in writing) any provision thereof, such that any such repudiation would have a POP Material Adverse Effect;

(d)        subject to Section 8.1.14, neither Contributor nor the POP Affiliate has received any written notice of any pending disputes under such Lease, nor is there any forbearance program in effect as to such Lease, such that any such forbearance program would have a POP Material Adverse Effect; and

(e)        neither Contributor nor the POP Affiliate has received any written notice from any governmental authority having jurisdiction over the Project (“Governmental Authority”) and alleging the failure of either or both of the Project and the tenant under the applicable Lease to comply with all applicable laws, rules and regulations in all material respects, such that any such failure would have a POP Material Adverse Effect.

8.1.8.        Physical Condition. To Contributor’s knowledge, all of (a) the Building and (b) the other Improvements that are material to the operation of the Project are in good operating condition and repair, subject only to ordinary wear and tear, maintenance and capital expenditures in the ordinary and normal course of the ownership and operation of the Project. To Contributor’s knowledge, there is no existing patent or latent structural or other physical defect or deficiency in the condition of the Project, or any component or portion thereof, that would have a POP Material Adverse Effect.

8.1.9.        Compliance with Laws and Codes. To Contributor’s knowledge, the Project, and the use and operation thereof, is (or the use and operation of any component, portion or area of the Project is) in material compliance with applicable municipal and other governmental laws, ordinances, regulations, codes. The fee simple owner of the Land possesses the material licenses, permits and authorizations for the use, occupancy and operation of the Project as it is presently being operated, except where such violation or failure would not have a POP Material Adverse Effect. To Contributor’s knowledge, no notice, citation, summons or order has been issued, nor has Contributor or the POP Affiliate received any written notice from any Governmental Authority that any investigation or review is pending or threatened by such Governmental Authority with respect to any alleged violation by the fee simple owner of

 

13

any such laws, statutes, rules, regulations or orders, except where the failure to comply with the same would not have a POP Material Adverse Effect.

8.1.10.        Litigation. There are no pending, or to Contributor’s knowledge, threatened judicial, municipal or administrative proceedings affecting the Project or against the fee simple owner of the Land affecting the use, ownership or operation of the Project or any portion thereof, except in any such case as would not have a POP Material Adverse Effect.

8.1.11.        Insurance. The fee simple owner of the Land now has in force normal and customary insurance relating to the Project, or as may be required by any lender in connection with the POP Property Indebtedness with respect to the Project (the “Insurance”). To Contributor’s knowledge, the POP Affiliate has not received any written notice of cancellation or non-renewal with respect to, or disallowance of any claim for any matter related to the Project under, any policy evidencing the Insurance. To Contributor’s knowledge, neither the fee simple owner nor the POP Affiliate has been refused any Insurance related to the Project, nor, to Contributor’s knowledge, has the coverage of the fee simple owner or the POP Affiliate been limited by any insurance carrier to which either of them has applied for Insurance or with which either of them has carried Insurance during the last five years (or any shorter period of time, as the case may be, in which the POP Affiliate has held an interest in the Project).

8.1.12.        Authority. Subject to Section 10.1 below, Contributor has obtained, or will obtain by Closing, all necessary consents for the execution and delivery of this Agreement and the Member Instrument by Contributor and the LP Unit Recipients. The performance of this Agreement by Contributor and the LP Unit Recipients, as the case may be, have been duly authorized by Contributor and the LP Unit Recipients, respectively, and this Agreement is the valid and binding obligation of Contributor and the LP Unit Recipients and enforceable against them in accordance with its terms, except to the extent enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principals and doctrines of general application. The Gross Asset Value with respect to the Project has been approved by Contributor and those of the LP Unit Recipients with an interest in the Project. To Contributor’s knowledge, neither the execution of this Agreement nor, subject to Section 10.1 below, the consummation of the transactions contemplated hereby will (i) result in a breach of, default under, or acceleration of, any agreement to which Contributor or any LP Unit Recipient is a party or by which Contributor, any LP Unit Recipient or the Project is bound; or (ii) violate any restriction, court order, agreement or other legal obligation to which any one or more of Contributor, any LP Unit Recipient and any of the Project is subject, in either case which would have a POP Material Adverse Effect.

8.1.13.        Environmental Matters.

(a)        To Contributor’s knowledge, there is no Environmental Claim (as hereinafter defined) pending or threatened against (i) the Project or (ii) the fee simple owner and that relates to the Project and that would have a POP Material Adverse Effect.

(b)        To the knowledge of Contributor, there are no past (during the period of time in which the fee simple owner has had an interest in the Project) or present actions, activities,

 

14

circumstances, conditions, events or incidents, including, without limitation, the handling, manufacture, treatment, storage, use, generation, release, emission, discharge, presence or disposal of any Hazardous Substances (as hereinafter defined), either collectively, individually, or severally, that constitute a violation of any Environmental Laws and that would have a POP Material Adverse Effect.

(c)        To the knowledge of Contributor, there has been no release of any Hazardous Substance on, in, at, under or from the Project during the period of time that the fee simple owner has held an interest in the Project, which release would have a POP Material Adverse Effect.

(d)        To the knowledge of Contributor: (i) there are no above ground or underground storage tanks currently located on any Land on which the Project is situated, such that the existence thereof would have a POP Material Adverse Effect; and (ii) there are no friable asbestos or friable asbestos containing materials on the Project, such that the existence thereof would have a POP Material Adverse Effect.

For purposes of this Section, the following definitions will apply:

“Environmental Laws” means all applicable laws, statutes, enactments, orders, regulations, rules and ordinances of any governmental authority relating to pollution or protection of human health, safety, the environment, natural resources or laws relating to releases or threatened releases of Hazardous Substances into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater, land, surface and subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, release, transport or handling of Hazardous Substances, including, without limitation (as applicable), the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. App. §1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Clean Water Act (33 U.S.C. §1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.) and the Occupational Safety and Health Act, 29 U.S.C. §653 et seq.), all as amended from time to time and the regulations promulgated pursuant thereto.

“Hazardous Substances” means any chemicals, materials or substances which are defined or regulated as dangerous, toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous or as a pollutant or contaminant under any Environmental Law, including but not limited to urea-formaldehyde, polychlorinated biphenyls, asbestos or asbestos-containing materials, petroleum and petroleum products.

“Environmental Claim” means any claim, order, investigation, action, suit, proceeding, injunction, demand, citation, summons, directive, fine, penalty, assessment or violation of or under any Environmental Laws, including, without limitation, any claim, order, investigation, action, suit, proceeding, injunction, demand, citation, summons, directive, fine, penalty, assessment or violation brought or issued by any

 

15

Governmental Authority, and any written notice advising the fee simple owner of any of the foregoing or of any fact, event or condition that is the basis for the assertion of any of the foregoing.

Contributor has no knowledge of any release, discharge, spillage, uncontrolled loss, seepage or filtration of oil, petroleum or chemical liquids or solids, liquid or gaseous products or any hazardous waste or hazardous substance (as those terms are used in the Comprehensive Environmental Response, Compensation and Liability Act of 1986, as amended, the Resource Conservation and Recovery Act of 1976, as amended, or in any other applicable federal, state or local laws, ordinances, rules or regulations relating to protection of public health, safety or the environment, as such laws may be amended from time to time) at, upon, under or within the Project that would have a POP Material Adverse Effect.

8.1.14.        Lease Controversies. To Contributor’s knowledge, no proceeding, suit or litigation relating to any Lease, is pending or, to Contributor’s actual knowledge, threatened, that would have a POP Material Adverse Effect.

8.1.15.        Rent Roll. Contributor has delivered to Acquiror a rent roll for the Project on Contributor’s usual and customary form, which rent roll is true, correct and complete in all material respects.

8.1.16.        United States Person. Contributor is a “United States Person” within the meaning of Section 1445(f)(3) of the Code, as amended, and shall execute and deliver an “Entity Transferor” certification at Closing.

8.1.17.        Condemnation. Contributor has no knowledge of pending or contemplated condemnation or other governmental taking proceedings affecting all or any part of the Project.

8.1.18.        Disclosure. To Contributor’s knowledge, no representation or warranty in this Agreement, no exhibit attached hereto with respect to the Project, and no schedule contained in this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary in order to make the statements contained therein not misleading, or necessary in order to provide Acquiror with adequate information as to the Project and the management, operation, maintenance and repair thereof. To Contributor’s knowledge, there is no fact known to Contributor which has, or which, to Contributor’s knowledge, could reasonably have been foreseen by Contributor as likely to have, a POP Material Adverse Effect on the management, operation, maintenance and repair of the Project which has not been disclosed herein, in any schedule attached hereto, or in any written document furnished by Contributor to Acquiror under this Agreement or in connection with the transactions contemplated hereby.

8.1.19.        Investment Representation. Each LP Unit Recipient represents that its LP Units are being acquired by it with the present intention of holding such LP Units for purposes of investment, and not with a view towards sale or any other distribution. Each LP Unit Recipient acknowledges that the LP Units have not been registered under the Act.

 

16

Each LP Unit Recipient recognizes that it may be required to bear the economic risk of an investment in the LP Units for an indefinite period of time. Contributor and each LP Unit Recipient is an Accredited Investor. Contributor and each LP Unit Recipient has such knowledge and experience in financial and busin