Exhibit
10.6
EXECUTION
COPY
PROPERTY ACQUISITION
AGREEMENT
THIS PROPERTY ACQUISITION AGREEMENT (this
“ Agreement ”) is entered into as of August 24,
2009 by and between INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
(“ Acquisitions ”),
INLAND DIVERSIFIED
BUSINESS MANA GER & ADVISOR, INC., an Illinois corporation (“ Business
Manager ”) and INLAND DIVERSIFIED REAL ESTATE TRUST,
INC. , a Maryland corporation (the
“ Company ”). Acquisitions , Business Manager and the
Company are sometimes referred to herein individually as a
“Party” and collectively as the
“Parties.”
WHEREAS, the
Company is in the business of, among other things, acquiring and
developing commercial real estate located in the United States and
Canada including retail properties, office buildings, multi-family
properties, student housing properties, industrial/distribution and
warehouse facilities and lodging properties;
WHEREAS,
Acquisitions is in the business of acquiring and assisting certain
third parties in acquiring assets, such as the Real Estate Assets
(as defined below);
WHEREAS,
Acquisitions and Business Manager are
indirect wholly owned
subsidiaries of The Inland Group, Inc.,
a Delaware
corporation (“ The Inland Group ”);
WHEREAS, the
parties hereby acknowledge that Robert D. Parks is an officer and director of the Company and a
stockholder and director of The Inland Group;
WHEREAS,
concurrently with entering into this Agreement, the Company entered
into the Business Management Agreement with the Business Manager,
under which the Business Manager will serve as the business manager
of the Company;
WHEREAS, the
Business Management Agreement provides among other matters, that
the Business Manager will identify potential investment
opportunities for the Company; and
WHEREAS, the Business Manager has requested that Acquisitions
grant the Company certain rights to acquire Real Estate Assets
identified by Acquisitions .
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained
herein, and in consideration of the amounts payable to affiliates
of Acquisitions under
the Business Management Agreement, the Parties agree as
follows:
1.
Incorporation of
Recitals .
By this reference, the recitals set forth above are hereby
incorporated into this Agreement as if fully set forth
herein.
2.
Definitions
. The following capitalized terms
used in this Agreement shall have the following
meanings:
(a)
“ Business Management
Agreement ” means that certain Business Management
Agreement, dated August 24, 2009, between the Company and the
Business Manager.
(b)
“ Exchange Act ” means
the Securities Exchange Act of 1934, as amended.
(c)
“ Real Estate Asset ”
shall have the meaning ascribed to that term in the Business
Management Agreement.
3.
Right of Refusal
. For and
during the term of this Agreement, and until the occurrence of a
Right of First Refusal Termination Event (as defined below) with
respect to a subject
Real Estate Asset identified by Acquisitions, and subject to the exercise
of any prior rights vested in third parties previously granted by
Acquisitions (“ Prior Offerees
”),
Acquisitions hereby grants to the Company a
right of first refusal to acquire each and every Real Estate Asset,
excluding interests in any Real Estate Operating Company (as
defined in the Business Management Agreement), identified by
Acquisitions.
4.
During the pendency of a right of first
refusal to a Real Estate Asset granted under Section 3 above, Acquisitions
covenants and agrees that it shall not (a) present or offer for
sale the subject Real Estate Asset to, (b) forward any information
regarding the subject Real Estate Asset to or (c) pursue the
acquisition of the subject Real Estate Asset
, on behalf or for the benefit of any other
person, entity or client except the Company.
5.
Upon identifying a Real Estate Asset,
subject to the provisions of Section 3 above, Acquisitions
shall deliver written notice to the Company (in form and substance
attached hereto as Exhibit A , each an “
Acquisition Notice ”) that Acquisitions has
identified, or has
entered into a letter of intent or acquisition agreement with
respect to, the applicable Real Estate Asset. The Acquisition
Notice shall confirm that any third parties that had been granted
prior rights to the subject Real Estate Asset have waived any and
all rights to acquire that Real Estate Asset. The Company
shall have ten (10) business days after the date an Acquisition
Notice is delivered to the Company (the “ Notice Period ”) to
give Acquisitions
written notice of
whether the Company desires to acquire the subject Real Estate
Asset (a “ Company Notice
”) . If the Company delivers a
Company Notice to Acquisitions electing to pursue the acquisition, but thereafter
the Company determines not to pursue the acquisition, then the
Company shall deliver to Acquisitions written notice terminating the Company’s interest in pursuing
the subject Real Estate Asset ( a “
Property Termination Notice ”). At the request of Acquisitions, the Company shall provide
Acquisitions with evidence appointing and
setting forth the authority of Company officers designated
to cause the Company to issue Company Notices and Property
Termination Notices .
The
Company’s election, whether in response to, or at any time
after, its receipt of an Acquisition Notice, not to pursue the
acquisition of a particular Real Estate Asset shall not affect or
impair any of the Company’s rights set forth in this
Agreement with respect to any other Real Estate Asset.
Upon the occurrence of a Right of First Refusal
Termination Event with respect to a subject Real Estate Asset,
the Company shall be deemed to have waived any and all rights to
acquire the subject Real Estate Asset, including any corporate
opportunity with respect thereto . For the purposes hereof, the term “ Right
of First Refusal Termination Event ” means the first to
occur of: (i) the Company’s failure to deliver to
Acquisitions a Company Notice with respect to the subject Real
Estate Asset prior to the expiration of the Notice Period; (ii)
delivery by the Company to Acquisitions
of a Company Notice
not to pursue acquisition of the subject
Real Estate Asset; (iii) failure of the
Company to diligently pursue acquisition of the subject Real Estate
Asset after Company Notice to Acquisitions
of the Company’s election to pursue
2
acquisition of the subject Real Estate
Asset; or (i
