EXHIBIT 10.6


 


PROPERTY ACQUISITION AGREEMENT


 


THIS
PROPERTY ACQUISITION AGREEMENT (this “Agreement”) is entered into as of                         ,
2009 by and between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation (“Acquisitions”), INLAND DIVERSIFIED BUSINESS  MANAGER & 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                         ,
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 (iv) delivery by the Company of a Property
Termination Notice.


 


6.                                       Acquisition Agreements.  From time to time, Acquisitions may enter
into a letter of intent or other acquisition agreement with respect to a
subject Real Estate Asset in its own name to facilitate, among other things,
the offer to, and possible purchase by, the Company of the subject Real Estate
Asset.  In any such case, if the Company
exercises its right of first refusal with respect to, and elects to pursue the
acquisition of, the subject Real Estate Asset, and the Company is willing to
enter into an agreement to acquire the subject Real Estate Asset, then upon the
Company’s request, Acquisitions shall assign the letter of intent or other
acquisition agreement to the Company or its designee.


 


7.                                       Reimbursements.  Section 9(b)(ii) of
the Business Management Agreement shall be, and hereby is, incorporated into
this Agreement by reference with the same force and effect as if set forth
herein.  Notwithstanding the earlier
termination, if any, of the Business Management Agreement, the Company hereby
agrees to reimburse Acquisitions in accordance with Section 9(b)(ii) of
the Business Management Agreement in the manner specified thereunder.  The Parties agree that there shall be no
duplication of payment for any services rendered with respect to any subject
Real Estate Asset under this Agreement and the Business Management Agreement.


 


8.                                       No Partnership or Joint Venture.  The Parties to this Agreement are independent
contractors.  Nothing in this Agreement
is intended or shall be deemed to constitute a partnership, agency, franchise
or joint venture relationship between the Parties.


 


9.                                       Term.  This term
of this Agreement shall commence on the date hereof, shall continue
concurrently with the term of the Business Management Agreement, as the same
shall be renewed; provided, however, that the Agreement shall
terminate upon the occurrence of a Change in Control (as defined herein).  In the event of the termination of the
Business Management Agreement for any reason, this Agreement shall terminate
simultaneously with the termination of the Business Management Agreement.


 


For purposes of this Section 9,
the term “Change in Control” shall mean:


 


(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 the Company to any
person or group of related persons for purposes of Section 13(d) of the
Exchange Act; 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 in
Control: (i) any affiliate controlled by the Company; (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.; (vi) Inland Real Estate Investment Corporation; or (vii) any
affiliate controlled by, or sponsored by, any of the persons or entities listed
in clauses (i) through (vi) above (all of the persons and entities
described in clauses (i) through (vii) above to be hereinafter
sometimes referred to as the “Inland Companies”);


 


3

















 


(b)                                 The approval by
the holders of the outstanding shares of the Company of any plan or proposal
for the liquidation or dissolution of the Company;


 


(c)                                  Any person or
group of related persons for purposes of Section 13(d) of the
Exchange Act (other than any one or more of the Inland Companies) shall become
the owner, directly or indirectly, beneficially or of record, of shares of the
Company representing more than twenty-five percent (25%) of the aggregate ordinary
voting power represented by the issued and outstanding common shares of the
Company; or


 


(d)                                 Following any
change in the composition of the board of directors of the Company, a majority
of the board of directors of the Company are not a combination of either (i) members
of the board of directors of the Company as of the date hereof, or (ii) members
of the board of directors of the Company whose nomination for election or
election to the board of directors of the Company has been recommended,
approved or ratified by at least eighty percent (80%) of the board of directors
of the Company then in office who were either members of the board of directors
of the Company as of the date hereof or whose election as a member of the board
of directors of the Company was previously so approved pursuant to this clause
(ii), or (iii) members of the board of directors of the Company who have
been elected pursuant to a proxy consent other than in connection with a
business combination transaction that would otherwise result in a “Change in Control”
under Section 9(a) or Section 9(c).


 


10.                                 Assignments. 
Except in the case of assignment by a Party to a corporation, trust or
other organization which is a successor to such Party, this Agreement may not
be assigned by any Party hereto without the prior written consent of the other
Parties.  Any assignment of this
Agreement shall bind the assignee hereunder in the same manner as the assignor
is bound hereunder.


 


11.                                 Amendments.  This
Agreement shall not be amended, changed, modified, terminated or discharged in
whole or in part except by an instrument in writing signed by each Party hereto
or their respective successors or assigns.


 


12.                                 Successors and Assigns.  This Agreement shall bind any successors or
assigns of the Parties hereto as herein provided.


 


13.           Governing Law.  The provisions of this Agreement shall be
governed, construed and interpreted in accordance with the internal laws of the
State of Illinois without regard to its conflicts of law principles.


 


14.                                 Notices.  All notices
or other communications required or permitted hereunder shall be in writing and
shall be deemed given or delivered:  (i) when
delivered personally or by commercial messenger; (ii) one business day
following deposit with a recognized overnight courier service, provided the
deposit occurs prior to the deadline imposed by the overnight courier service
for overnight delivery; (iii) when transmitted, if sent by facsimile copy,
provided confirmation of receipt is received by sender and is sent by an additional
method provided hereunder, in each case above provided the notice of
communication is addressed to the intended recipient thereof as set forth
below:


 


4

















 


	
  If to Acquisitions:

  	
   

  	
  with a copy to:

  
	
  Inland
  Real Estate Acquisitions, Inc.

  	
   

  	
  The
  Inland Real Estate Group, Inc.

  
	
  2901
  Butterfield Road

  	
   

  	
  Law
  Department

  
	
  Oak
  Brook, IL 60523

  	
   

  	
  2901
  Butterfield Road

  
	
  Attention:

  	
  G.
  Joseph Cosenza

  	
   

  	
  Oak
  Brook, IL 60523

  
	
  Telephone:

  	
  (630)
  218-8000

  	
   

  	
  Attention:
  

  	
  Elliot
  B. Kamenear

  
	
  Facsimile:

  	
  (630)
  218-4935

  	
   

  	
  Telephone:
  

  	
  (630)
  218-8000

  
	
   

  	
   

  	
   

  	
  Facsimile:
  

  	
  (630)
  218-4900

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  If to the Business Manager:

  	
   

  	
  with a copy to:

  
	
  Inland
  Business Manager & Advisor, Inc.

  	
   

  	
  The
  Inland Real Estate Group, Inc.

  
	
  2901
  Butterfield Road

  	
   

  	
  Law
  Department

  
	
  Oak
  Brook, IL 60523

  	
   

  	
  2901
  Butterfield Road

  
	
  Attention:

  	
  Barry
  L. Lazarus

  	
   

  	
  Oak
  Brook, IL 60523

  
	
  Telephone:

  	
  (630)
  218-8000

  	
   

  	
  Attention:
  

  	
  Cathleen
  M. Hrtanek

  
	
  Facsimile:

  	
  (630)
  218-4955

  	
   

  	
  Telephone:
  

  	
  (630)
  368-2257

  
	
   

  	
   

  	
   

  	
  Facsimile:
  

  	
  (630)
  218-4900

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  If to the Company:

  	
   

  	
  with a copy to:

  
	
  Inland
  Diversified Real Estate Trust, Inc.

  	
   

  	
  The
  Inland Real Estate Group, Inc.

  
	
  2901
  Butterfield Road

  	
   

  	
  Law
  Department

  
	
  Oak
  Brook, IL 60523

  	
   

  	
  2901
  Butterfield Road

  
	
  Attention:

  	
  Roberta
  S. Matlin

  	
   

  	
  Oak
  Brook, IL 60523

  
	
  Telephone:

  	
  (630)
  218-8000

  	
   

  	
  Attention:
  

  	
  Cathleen
  M. Hrtanek

  
	
  Facsimile:

  	
  (630)
  218-4955

  	
   

  	
  Telephone:
  

  	
  (630)
  368-2257

  
	
   

  	
   

  	
   

  	
  Facsimile:
  

  	
  (630)
  218-4900

  



 


Any
Party may at any time give notice in writing to the other Party of a change of
its address for the purpose of this Section 14.  Copies of notices are for informational
purposes only, and a failure to give or receive copies of any notice shall not
be deemed a failure to give notice, and shall in no way adversely affect the
effectiveness of such notice to the addressee Party.


 


15.                                 Headings.  The section
headings hereof have been inserted for convenience of reference only and shall
not be construed to affect the meaning, construction or effect of this
Agreement.


 


16.                                 Equitable Relief.  Each Party hereto recognizes
and acknowledges that a breach by another Party to this Agreement may cause
irreparable damage to the non-breaching Party or Parties which cannot be
readily remedied in monetary damages in an action at law.  In the event of any default or breach by a
Party, the non-breaching Parties shall be entitled to seek immediate injunctive
relief to prevent such irreparable harm or loss, in addition to any other
remedies available at law and in equity.


 


[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK]


 


5

















 


IN
WITNESS WHEREOF, the undersigned have executed this Property Acquisition
Agreement as of the date first above written.


 


	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.

  	
   

  	
  INLAND
  DIVERSIFIED REAL ESTATE TRUST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INLAND
  DIVERSIFIED BUSINESS  MANAGER &
  ADVISOR, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  	
   

  



 


6

















 


EXHIBIT A

FORM OF ACQUISITION NOTICE


 


ACQUISITION NOTICE


 


[NAME OF SUBJECT REAL ESTATE
ASSET]

[GENERAL LOCATION]

[CITY, STATE]

[DATE OF ACQUISITION NOTICE]


 


Inland Diversified Real Estate Trust, Inc.


2901 Butterfield Road


Oak Brook, IL  60523


Attention:         Barry
L. Lazarus


 


Reference
is made to that certain Property Acquisition Agreement, dated as of                         ,
2009 (the “Agreement”), by and between Inland Real Estate Acquisitions, Inc.,
an Illinois corporation (“Acquisitions”), Inland Diversified Business
Manager & Advisor, Inc., an Illinois corporation,  Inland Diversified Real Estate Trust, Inc.,
a Maryland corporation (the “Company”). 
Capitalized terms used in this Acquisition Notice but not defined herein
shall have the meanings ascribed to such terms in the Agreement.


 


Pursuant
to Section 3 of the Agreement, Acquisitions has identified the
following Real Estate Asset: [DESCRIBE REAL ESTATE ASSET].  Attached hereto for your review is our
standard, preliminary “deal sheet” for the subject Real Estate Asset.  This letter constitutes the Acquisition
Notice under and pursuant to the Agreement with respect to the subject Real
Estate Asset and confirmation that all other parties having rights to purchase
this Real Estate Asset have waived such rights.


 


Please
direct all correspondence with respect to the subject Real Estate Asset to
Acquisitions as follows:


 


Inland Real Estate Acquisitions, Inc.


2901 Butterfield Road


Oak Brook, IL 
60523


	
  Attention:

  	
  G. Joseph Cosenza

  
	
  Telephone:

  	
  (630)
  218-8000

  
	
  Facsimile:

  	
  (630) 218-4935

  



 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


We
hereby elect o to acquire, o not to acquire
the above referenced Real Estate Asset.


 


Inland
Diversified Real Estate Trust, Inc.


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Its: