EXHIBIT 99.11
TRANSITION
PROPERTY
DUE DILIGENCE
SERVICES AGREEMENT
THIS
TRANSITION PROPERTY DUE DILIGENCE SERVICES AGREEMENT (this
"Agreement") is made and entered into as of the 29 th of
December, 2004, by and between INLAND RETAIL REAL ESTATE TRUST,
INC. , a Maryland corporation ("Client"), and INLAND REAL
ESTATE ACQUISITIONS, INC. , Illinois Corporation ("Service
Provider").
RECITALS:
A.
Client is in the business of the ownership, operation, management,
leasing and development of retail, multi-family, office and
commercial real estate.
B.
Concurrently with the execution of this Agreement, Client acquired,
through its subsidiaries and pursuant to that certain Agreement and
Plan of Merger, dated as of the 10 th day of September,
2004 (the "Merger Agreement"), by and among Client, IRRETI
Acquisition 1, Inc., IRRETI Acquisition 2, Inc., IRRETI Acquisition
3, Inc., IRRETI Acquisition 4, Inc., Inland Mid-Atlantic Management
Corp. ("Mid-Atlantic"), Inland Southern Management Corp.
("Southern"), Inland Southeast Property Management Corp.
("Southeast"), Inland Retail Real Estate Advisory Services, Inc.
("Advisor"), Inland Real Estate Investment Corporation, certain
shareholders of Mid-Atlantic, Southern and Southeast, and Daniel
Goodwin, not personally, but solely as agent for certain
shareholders of Mid-Atlantic, Southern, Southeast, and Advisor
(collectively, the "Businesses").
C.
Service Provider and certain of its employees have, prior to the
consummation of the transactions contemplated by the Merger
Agreement (collectively, the "Mergers"), provided to the Client,
the services described and set forth on Exhibit A attached hereto
and made a part hereof (collectively, the "Services").
D.
Simultaneous with the execution of this Agreement, Client and
Service Provider executed and entered into that certain Property
Acquisition Agreement dated December 29, 2004 (the "Property
Acquisition Agreement").
E.
Client is desirous of retaining Service Provider to provide
Services for a period of time from and after the consummation of
the transactions contemplated by the Merger Agreement.
F.
Service Provider is desirous of providing the Services to Client
for a period of time from and after the consummation of the
transactions contemplated by the Merger Agreement.
G.
Client and Service Provider wish to set forth their understanding
and agreement with respect to the Services, the compensation to be
paid to Service Provider by Client and other matters relating
thereto, all as hereinafter provided.
NOW,
THEREFORE , in consideration of the mutual covenants
hereinafter set forth, the compensation to be paid by Client to
Service Provider as herein provided, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1..
Incorporation of Recitals . The foregoing Recitals are,
by this reference, incorporated into the body of this Agreement as
if the same had been set forth herein in their entirety.
2.
Performance of Services with respect to Subject
Properties . Upon request of the Client, Service Provider
agrees to provide Client with the Services in connection with
evaluating and acquiring any Subject Property (as defined in the
Property Acquisition Agreement) and any other property the Client
desires to acquire (Subject Properties and any other property with
respect to which Client requests Service Provider to provide
Services shall hereinafter collectively be referred to as a
"Property" or "Properties"). Notwithstanding the foregoing or
anything else contained in this Agreement, Service Provider shall
be excused from providing the Services in connection with any
specific Property if:
(
A)
Performing the Service would violate applicable law or the rules of
any regulatory body having jurisdiction over the Services;
(B)
Performing the Service would result in the commission of fraud upon
any person or party;
(C)
Service Provider has a reasonable basis, upon the advice of
counsel, that performing the Service could subject the Service
Provider to liability or material damages in any civil litigation;
or
(D)
Service Provider does not have a sufficient number of qualified
personnel to provide the Services, provided that Service Provider
shall use commercially reasonable efforts to eliminate and minimize
the duration of any personnel shortage.
3.
Term . The initial term ( the "Initial Term") of this
Agreement shall commence as of the date hereof (the "Commencement
Date"), and, unless terminated earlier as provided in Section
4 below, automatically shall expire and terminate, unless
renewed, on the first (1 st ) anniversary of the
Commencement Date; provided, that this Agreement shall be
automatically renewed for an additional one (1) year period
("Renewal Term") unless either party provides notice of its intent
not to renew at least ninety (90) days prior to the expiration of
the Initial Term or Renewal Term, as the case may be.
4.
Termination .
|
|
|
|
|
(a) By Client
|
|
|
|
|
|
(i)
For Cause . Client may terminate this Agreement upon
material default by Service Provider hereunder upon ten (10) days
prior notice to Service Provider; provided, however, that prior to
exercising its rights under this Section 4(a)(i) , Client
shall notify Service Provider of the alleged default, and Service
Provider shall have thirty (30) days after receipt of such notice
to cure the default to Client's reasonable satisfaction. Upon
terminating in accordance with this Section 4(a)(i) , Client
shall pay Service Provider all amounts due Service Provider under
Section 7 hereof.
|
|
|
|
|
|
(ii)
Without Cause . Client may terminate this Agreement, without
cause, by providing not less than sixty (60) days prior notice
(which notice shall specifically set forth the effective date of
termination) to the Service Provider of such election to so
terminate. Upon terminating in accordance with this Section
4(a)(i) , Client shall, pay Service Provider all amounts due
Service Provider under Section 7 hereof.
|
|
|
|
|
|
(b) By Service Provider
|
|
|
|
|
|
(i)
For Cause . Service Provider may terminate this Agreement,
upon the occurrence of any of the following events:
|
|
|
|
|
|
a. Client
fails, in the absence of a bona fide dispute with respect to such
payment, to make payment for Services on its due date, provided
however, that Client may cure such breach up to three times per
calendar year by making payment within ten (10) days of Client's
receipt of notice that it failed to make such payment when due;
|
|
|
|
|
|
b. Client
requests that Service Provider violate any applicable law or the
rules of any regulatory body having jurisdiction (and Client does
not promptly revoke such request upon Service Provider's refusal to
comply);
|
|
|
|
|
|
c. Client
requests that Service Provider take any action which would result
in the commission of a fraud upon any person or party (and Client
does not promptly revoke such request upon Service Provider's
refusal to comply);
|
|
|
|
|
|
d. Client
requests that Service Provider take any action that, upon the
advice of counsel to Service Provider, could subject the Service
Provider to liability or material damages in a civil litigation
(and Client does not promptly revoke such request upon Service
Provider's refusal to comply); or
|
|
|
|
|
|
e. A
Change of Control (hereinafter defined).
|
|
|
|
|
|
(ii) For
the purposes hereof, the term "Change of Control" shall mean the
occurrence of any one or more of the following:
|
|
|
|
|
|
a. Any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the
assets of Client to any person or group of related persons for
purposes of Section 13(d) of the Securities Exchange Act of 1934,
as amended; provided, however , that any sale, lease,
exchange or transfer to (including, without limitation, any merger
or other business combination with or into) any of the following
shall not constitute a Change of Control: (i) any affiliate
controlled by Client, (ii) Inland Real Estate Corporation, (iii)
Inland Western Retail Real Estate Trust, Inc., (iv) Inland American
Real Estate Trust, Inc., (v) The Inland Group, Inc., or (vi) any
affiliate controlled by any of the persons or entities listed in
clauses (i) through (v) above (all of the persons and entities
described in clauses (i) through (vi) above to be hereinafter
sometimes referred to as the "Inland Companies");
|
|
|
|
|
|
b. The
approval by the holders of the outstanding shares of Client of any
plan or proposal for the liquidation or dissolution of Client;
|
|
|
|
|
|
c. Any
person or group of related persons for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended (other than any one
or more of the Inland Companies) shall become the owner, directly
or indirectly, beneficially or of record, of shares of Client
representing more than twenty-five percent (25%) of the aggregate
ordinary voting power represented by the issued and outstanding
common shares of Client; or
|
|
|
|
|
|
d. Following
any change in the composition of the board of directors of Client,
a majority of the board of directors of Client are not a
combination of either (i) members of the board of directors of
Client as of the date hereof, or (ii) members of the board of
directors of Client whose nomination for election or election to
the board of directors of Client has been recommended, approved or
ratified by at least eighty percent (80%) of the board of directors
of Client then in office who were either members of the board of
directors of Client as of the date hereof or whose election as a
member of the board of directors of Client was previously so
approved pursuant to this clause (ii)
|
|
|
|
|
|
|
5.
Independent Contractor .
Service Provider's status shall be that of an independent
contractor, and not that of an agent or employee of Client. Service
Provider shall not hold itself out as an employee or agent of
Client except as contemplated by any other Ancillary Agreement.
6.
Intentionally Omitted .
7.
Payment . For all Servi
