Exhibit 10.4


 


POST CLOSING AND INDEMNITY AGREEMENT


 


THIS POST CLOSING AND INDEMNITY
AGREEMENT (“Agreement”) is dated this 11th of July, 2014 by SOUTH MAIN CENTER, INC., a Wisconsin corporation
(“Seller”), and IREIT WEST BEND MAIN, L.L.C., a Delaware limited liability company (“Purchaser”)
in connection with the acquisition of the Pick’n Save Center in West Bend, Wisconsin (referred to as the “Property”
as defined in that certain Purchase and Sale Agreement dated April 4, 2014 (as amended, “Contract”) by and between
Seller and Purchaser’s predecessor-in-interest, Inland Real Estate Acquisitions, Inc. (“Inland”).


 


WHEREAS, Purchaser is the
successor to Inland with respect to the Contract; and


 


WHEREAS, in connection
with the acquisition of the Property from Seller, Purchaser requires a confirmation of Seller to complete certain obligations following
the closing (the “Closing”) for the acquisition of the Property by Purchaser; and it being acknowledged that
Purchaser would not complete its purchase of the Property without Seller’s execution of this Agreement; and


 


WHEREAS, in order to proceed
to Closing, Purchaser requires Seller to make certain undertakings, to obtain documents regarding or confirming certain issues,
and/or certifications as to the state of facts regarding such issues, and further, Purchaser requires that Seller indemnify and
hold harmless Purchaser, and each of its successors, assigns, officers, directors, employees and lenders (each an “Indemnified
Party” and collectively, the “Indemnified Parties”) harmless from any loss, cost or expense incurred
by any Indemnified Party, including costs and attorneys fees, (“Loss”) as a result of either Seller’s
failure to obtain the required documents, Seller’s failure to timely complete its obligations as set forth herein, or any
Loss that results from a certification hereafter being incorrect.


 


NOW, THEREFORE, for good
and valuable consideration including the mutual promises contained herein, the parties hereto agree as follows:


 


1.               
Tenant Reconciliations. Seller agrees to indemnify and hold Purchaser, its lender
and their respective successors and assigns harmless from and against any claims relating to or arising out claims by any tenant
to the Property relating to reconciliations for periods ending prior to the Closing, including, but not limited to, claims relating
to refunds of real estate taxes.





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2.               
Earnouts. Seller and Purchaser hereby acknowledge and agree that the Property is not
one hundred percent (100%) occupied at the time of Closing with all tenants occupying their space, open for business and paying
full rent, including CAM, taxes and insurance current. Notwithstanding anything to the contrary set forth in the Contract, Seller
shall have twenty-four (24) months following the date of Closing (“Earnout Period”) to receive additional proceeds
of up to $4,874,726.00 (“Earnout Purchase Price”) based upon an Earnout Annual Base Minimum Rent of $370,042.00
divided by the Base Rent Divider of 7.5910% by leasing (i) the vacant space shown on Exhibit A attached hereto and made
a part hereof (the “Constructed Vacant Space”) and (ii) vacant space located in a building(s) to be constructed
by Seller after the date hereof (“Unbuilt Vacant Space”), the Constructed Vacant Space and the Unbuilt Vacant
Space shall be collectively referred to herein as the “Earnout Space”); provided, however, in no event shall
the overall purchase price for the Property exceed $23,997,286.00. During the Earnout Period, it shall be Seller’s responsibility
and sole cost and expense for leasing out and paying all costs related to placing the tenants into the Earnout Space, including,
but not limited to, any commissions, tenant improvement allowances and concessions; provided, however, no tenant shall be Seller
or an affiliate of Seller. The tenant for each Earnout Space and each lease for the Earnout Space shall be subject to the leasing
parameters attached hereto as Exhibit B. Seller is not entitled to any portion of the Earnout Purchase Price until a Purchaser-approved
tenant under a Purchaser-approved lease for an Earnout Space has accepted its space “as is” and takes total possession,
has opened for business and commences full rental payments, including CAM, taxes and insurance on a pro rata basis, all applicable
tenant improvement allowances and leasing commissions have been paid in full and Purchaser has received an estoppel letter reasonably
acceptable to Purchaser from each such tenant (“Earnout Requirements”). Each Earnout closing shall occur upon
ten (10) business days advance written notice to Purchaser that the Earnout Requirements have been satisfied and provided the Earnout
Period has not expired; provided, however, (a) Seller hereby acknowledges that Seller waives its right to any remaining payments
of the Earnout Purchase Price if the Earnout Requirements for the Earnout Space have not been satisfied during the Earnout Period,
and (b) at the respective Earnout closing, Seller shall deliver to Purchaser (if not previously delivered) a down date endorsement
to Purchaser’s Owner’s Policy of Title Insurance showing that there are no mechanic’s or materialmens’
liens affecting Purchaser’s title to the Property caused by Seller. During the Earnout Period and until tenants have satisfied
all requirements stated herein with respect to its respective Earnout Space, Seller shall be responsible on a monthly basis for
all CAM, taxes and insurance due for the applicable Earnout Space, but in no event following the expiration of the Earnout Period.



Purchaser shall
act in a commercially reasonable manner and in good faith during its review and determination of the approval of any new proposed
tenant and/or lease presented to Purchaser. Also, Purchaser agrees to respond to any request for the approval of any new proposed
tenant and/or lease presented to Purchaser within ten (10) business days after receipt of such request and all reasonable documentation
required to evaluate such request by Purchaser. If Purchaser fails to respond to such request within such 10-business day period
and such failure continues for a period in excess of five (5) business days after Purchaser’s receipt of notice of such failure,
then such proposed tenant and/or lease shall be deemed approved by Purchaser.





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3.               
Escrow Agreement. As part of the Closing, Seller shall place in escrow with Chicago
Title Insurance Company, pursuant to a mutually agreed upon escrow agreement (“Escrow Agreement”), (i) an amount
equal to $40,000.00 (“Roof Escrow Deposit”), such amount being agreed to
by Seller and Purchaser as the amount necessary to repair the roof on the vacant building located on the Property to the north
of the Pick ‘n Save grocery store, and (ii) an amount equal to $100,000.00 (“Roundy’s Tax Escrow Deposit”),
such amount being agreed to by Seller and Purchaser as the maximum amount that Roundy’s Supermarkets, Inc. may be owed due
to overpayment of real estate taxes for calendar years 2012 and 2013. The Escrow Agreement shall set forth the terms of
the disbursement of the Roof Escrow Deposit and the Roundy’s Tax Escrow Deposit. Any Roof Escrow Deposit and/or Roundy’s
Tax Escrow Deposit remaining at the end of the Earnout Period shall be disbursed to Purchaser. 


4.               
Further Assurances. Seller and Purchaser agree to cooperate with each other following
the closing to confirm any matter and execute any document reasonably required by the other party in furthering of the Closing
and consistent with the requirements of the Contract.


5.               
Defined Terms. All capitalized terms which are not expressly defined herein shall
have the meaning as set forth in the Contract.


6.               
Indemnification. Seller agrees to indemnify and hold the Indemnified Parties harmless
from any Loss.


7.               
Miscellaneous. This Agreement shall be binding upon and inure to the benefit of
the parties to this Agreement and their respective successors and permitted assigns and may be executed in counterparts.








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SIGNATURE PAGE FOR


POST CLOSING AND INDEMNITY AGREEMENT


 


IN WITNESS WHEREOF, Purchaser
and Seller have caused this Agreement to be executed as of the day and year first above written.


 


 


	 	SELLER:
	 	 	 	 
	 	
        SOUTH MAIN CENTER, INC., a

        Wisconsin corporation

	 	 	 	 
	 	By:	/s/ Matthew P. Prescott
	 	Name:	Matthew P. Prescott
	 	Title:	President
	 	 	 	 
	 	 	 	 
	 	PURCHASER:
	 	 	 	 
	 	
        IREIT WEST BEND MAIN, L.L.C., a

        Delaware limited liability company

	 	 	 	 
	 	By:	
        Inland Real Estate Income Trust, Inc., a

        Maryland corporation, its sole member

	 	 	 	 
	 	 	By:	/s/ Marcia L. Grant
	 	 	Name:	Marcia L. Grant
	 	 	Title:	Assistant Secretary


 


 





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EXHIBIT
A


 


CONSTRUCTED
VACANT SPACE


 


(see attached)


 


 


 


 


POST CLOSING
AND INDEMNITY AGREEMENT




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EXHIBIT
B


 


LEASING PARAMETERS


 


(see attached)


 




 


 


 


POST CLOSING AND INDEMNITY AGREEMENT


 


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