EXHIBIT 10.6


 


PROPERTY ACQUISITION AGREEMENT


 


THIS PROPERTY ACQUISITION
AGREEMENT (this “Agreement”) is entered into as of May     ,
2009 by and between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation (“Acquisitions”), and INLAND DIVERSIFIED REAL ESTATE TRUST, INC., a
Maryland corporation (the “Company”). 
Acquisitions 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, to 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 is an
indirect wholly owned subsidiary of The Inland Group, Inc., an Illinois
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, Inc., the parent entity of
Acquisitions;


 


WHEREAS, concurrently with
entering into this Agreement, the Company entered into the Business Management
Agreement with the Business Manager;


 


WHEREAS, Acquisitions is
willing to 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 Acquisition 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 Manager” means Inland
Diversified Business Manager & Advisor, Inc., an Illinois
corporation and an affiliate of Acquisitions.


 


(b)           “Business Management
Agreement” means that certain Business Management Agreement, dated May     ,
2009, between the Company and the Business Manager.


 

















 


(c)           “Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


(d)           “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 the subject Real
Estate Asset, Acquisitions hereby grants to the Company: (i) subject to
the exercise of any prior rights vested in third parties and previously granted
by Acquisitions, a right of first refusal to acquire each and every Real Estate
Asset identified by Acquisitions.


 


4.             During the pendency of a
right of first refusal 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 entered into a letter of intent or acquisition
agreement with respect to, the applicable Real Estate Asset.  The Company shall have ten (10) business
days after the date of its receipt of an Acquisition Notice (the “Notice Period”)
to inform Acquisitions in writing (a “Company Notice”) whether the Company desires
to acquire the subject Real Estate Asset. 
Upon the occurrence of a Right of First Refusal Termination Event with
respect to the 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. 
If the Company delivers a Company Notice electing to pursue the
acquisition, but thereafter the Company determines not to pursue the
acquisition, then the Company shall deliver to Acquisitions written notice of termination
(each, a “Property Termination Notice”). 
The Company shall, upon request, provide Acquisitions with evidence
setting forth the authority of the designated officers of the Company to cause
the Company to send a Company Notice or a Property Termination Notice.


 


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.


 


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 of a Company Notice with respect to the subject Real Estate
Asset; and (iii) failure of the Company to diligently pursue acquisition
of the subject Real Estate Asset or delivery by the Company of a Property
Termination Notice.


 


6.             Acquisition
Agreements.  Acquisitions
may, from time to time, 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 


 


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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 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 and shall continue so long as at least one of our officers is
an officer or director of The Inland Group or its affiliates and at least one
of our directors is an officer or director of The Inland Group or its
affiliates.


 


10.           Assignments.  This Agreement may not be assigned except
with the written consent of each Party hereto, except in the case of assignment
by a Party to a corporation, trust or other organization which is a successor
to such Party.  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:


 


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  If to Acquisitions:

  	
   

  
	
  Inland
  Real Estate Acquisitions, Inc.

  	
   

  
	
  2901
  Butterfield Road

  	
   

  
	
  Oak
  Brook, IL 60523

  	
   

  
	
  Attention:

  	
  G.
  Joseph Cosenza

  	
   

  
	
  Telephone:

  	
  (630)
  218-8000

  	
   

  
	
  Facsimile:

  	
  (630)
  218-4955

  	
   

  



 


	
  If to the Company:

  	
  with a copy to:

  
	
  Inland
  Diversified Real Estate Trust, Inc.

  	
  Inland
  Diversified Real Estate Trust, Inc.

  
	
  2901
  Butterfield Road

  	
  c/o
  The Inland Real Estate Group, Inc.

  
	
  Oak
  Brook, IL 60523

  	
  2901
  Butterfield Rd.

  
	
  Attention:

  	
  Barry
  L. Lazarus

  	
  Oak
  Brook, IL 60523

  
	
  Telephone:

  	
  (630)
  218-8000

  	
  Attention:

  	
  Legal
  Department

  
	
  Facsimile:

  	
  (630)
  218-4955

  	
  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.


 


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 the other party of this
Agreement will cause irreparable damage to the non-breaching party which cannot
be readily remedied in monetary damages in an action at law.  In the event of any default or breach by
either party, the non-breaching party 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.


 


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IN WITNESS WHEREOF, the
undersigned have executed this 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:

  	
   

  



 

















 


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:      Robert D. Parks


 


Reference is made to that
certain First Amended and Restated Property Acquisition Agreement, dated as of May     ,
2009 (the “Agreement”), by and between Inland Real Estate Acquisitions, Inc.,
an Illinois corporation (“Acquisitions”), and 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.


 


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)
  218-4955

  



 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUISITIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Its: