Exhibit 10.80


 


POST CLOSING AND INDEMNITY AGREEMENT


 


This Post Closing
and Indemnity Agreement (“Agreement”)
is dated as of this 25th day of July, 2006 by and among MB Herndon,  L.L.C., a Delaware limited liability company (“Purchaser” which for purposes of this
Agreement shall also include its successors and assigns), and Valley View Associates Limited Partnership (“Seller”), in connection with the
acquisition of Dulles Executive Center, located in Hemdon, Virginia (the “Property”) as defined in that certain
Agreement of Purchase and Sale dated July 6, 2006 (the “Contract”), as amended, by and between
Seller and Inland Real Estate Acquisitions, Inc. (“IREA”).


 


RECITALS:


 


A.                     IREA assigned
its interest in the Contract to Purchaser by assignment dated as of the date of
this Agreement.


 


B.                       As a
condition precedent to Purchaser proceeding to the Closing (as defined in the
Contract), Purchaser has required and Seller has agreed to certain undertakings
following the Closing and further, Purchaser has required and Seller has agreed
that Seller shall indemnify, defend and hold harmless Purchaser to the extent
provided for in this Agreement.


 


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


 


1. Cisco
Estoppel / Seller’s Estoppel


 


(a)                    Cisco Systems,
Inc. (“Cisco”), as tenant, entered
into a lease dated December 20, 2000 for approximately 189,764 s.f., being all
of building known as 13560 Dulles Technology Drive (the “Premises”), one of the buildings on the
Property. The Cisco Lease was supplemented by a License Agreement dated
December 20, 2000, and amended by the First Amendment dated October 8, 2001 and
by the Second Amendment dated August 25, 2004 (collectively, the “Cisco Lease”).


 


(b)                   By the Second
Amendment to the Cisco Lease, Cisco assigned its rights to occupy the Premises
and certain other rights under the Cisco Lease to Lockheed Martin Corporation (“Lockheed”).


 


(c)                    As of the date
of Closing under the Contract, Seller could not provide an estoppel from Cisco
as to certain of the obligations of Cisco under the Cisco Lease. Purchaser has
agreed to proceed to Closing in consideration of which Seller has agreed as
follows: (i) at Closing, Seller shall provide a landlord estoppel (the “Landlord Estoppel”) with regard to the
Cisco Lease and the obligations of Cisco under the Cisco Lease in form
substantially as attached hereto as Exhibit A;
and (ii) Seller shall use commercially reasonable efforts to secure and provide
Purchaser with an estoppel from Cisco on or before August 25, 2006, with
respect to the same matters covered in the Landlord’s Estoppel, and addressed
to the same parties; and (iii) Seller shall indemnify and hold Purchaser
harmless with regard to


 


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any claims and/or
costs or damages suffered by Purchaser as a result of any of the statements in
the Landlord Estoppel being incorrect; provided this indemnity by Seller shall
terminate or lapse after the earlier to occur of (A) Purchaser’s receipt of the
Cisco estoppel without material variance from the Landlord Estoppel, and (B)
six months after the date of this Agreement (unless there is a material
variance between the Landlord’s Estoppel and the Cisco estoppel).


 


2.        Letters of Credit


 


(a)                    In conjunction
with their respective leases at the Property, both Nokia, Inc. (“Nokia”) and Exostar, LLC (“Exostar”) have provided Seller with letters
of credit to secure certain obligations of such tenants under their respective
leases and subject to the terms of their leases (the “Letters of Credit”). The Letters of Credit
are attached hereto as Exhibit “B” and
Exhibit “C”, respectively.


 


(b)                   As of the date
of Closing under the Contract the Letters of Credit had not been assigned
and/or reissued from Seller to Purchaser. Purchaser has agreed to proceed to
Closing in consideration of which Seller has agreed to use commercially
reasonable efforts to secure and provide Purchaser with an assignment of the
existing Letters of Credit, or to have such Letters of Credit re-issued to name
Purchaser as the secured party within thirty (30) days after the date of this
Agreement, all at Purchaser’s cost.


 


(c)                    Seller shall
indemnify and hold Purchaser harmless with regard to any claims and/or costs or
damages suffered by Purchaser as a result of Seller’s failure to comply with
the requirements of Subsection 2(b) above.


 


3.        Assignment Of TI Work Contracts


 


(a)                    Prior to the
Closing under the Contract, Seller has entered into certain contracts and
engaged in certain construction at the Property, as described on Exhibit “D”, with regard to work required
under tenant leases of the Property (the “TI
Contracts”).


 


(b)                   At Closing,
Seller shall assign to Purchaser the TI Contracts; provided that (i) Purchaser
assumes no obligations under the TI Contracts, and (ii) Purchaser shall have
all rights to enforce the warranties of the contractors under the TI Contracts
post Closing; and (iii) the effective date of the assignment of the Open TI
Contract, as defined in Section 4, below, shall occur after all work under the
Open TI Contract has been completed, without further assignment required; and
(iv) Seller shall complete the obligations on its part to perform under the
Open TI Contract, as defined in Section 4, below.


 


4.        Open TI Contract


 


(a)                    As of the date
of Closing under the Contract the Construction Contract for a Fixed Sum dated
3/23/06 for work on the third floor of Building I (the “Open TI


 


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Contract”),
remains incomplete and there remains additional work, and additional costs
associated with that Open TI Contract.


 


(b)                   From and after
the date of this Agreement, Seller agrees to complete all work required under
the Open TI Contract on the part of Seller, as landlord under and as required
by the Lockheed lease. Purchaser grants Seller a license to enter Building I
with regard to such Open TI Contract.


 


(c)                    Seller shall
provide Purchaser with draw requests and contractor’s final lien waivers
showing that all amounts due under the Open TI Contract have been paid, and
Seller shall use any amounts paid by Lockheed Martin for its portion of such
costs, whether paid to Seller or Purchaser (which will be forwarded to Seller),
to pay such costs under the Open TI Contract.


 


(d)                   Seller shall
indemnify and hold Purchaser harmless from any and all actual losses, costs,
expenses and damages to persons or property, including actual and reasonable
attorneys’ fees and court costs, incurred as a result of the work under the
Open TI Contract, as provided in Section 8 of the Contract.


 


5.        Future Development Matters


 


(a)                    Seller has
engaged in activities and filed applications related to a proposed expansion of
the Property by the addition of a third building (the “Future Development”).


 


(b)                   At Closing,
Purchaser will reimburse Seller for $17,655.00 toward the application fee paid
by Seller related to the Future Development, and Purchaser shall have the right
to pursue such application, or not, at Purchaser’s sole discretion.


 


(c)                    Seller agrees that
all other costs incurred by Seller, and all obligations or contracts entered
into by Seller with respect to the Future Development, will be the sole
obligation of Seller and that Purchaser is not assuming any obligations under
any contracts related to the Future Development.


 


(d)                   Seller shall
indemnify and hold Purchaser harmless with regard to any claims and/or costs or
damages suffered by Purchaser as a result of Seller’s failure to comply with
the provisions of Subsection 5(c) above


 


6.        Audit
Letter


 


(a)                    Pursuant to
the terms of the Contract, Seller shall cooperate with Purchaser and Purchaser’s
accountants (at no cost to Seller) with regard to the audit of Seller’s books
and records related to rental income and operating expenses for the Property.


 


(b)                   Seller agrees
that from and after Closing, at Purchaser’s request, Seller shall execute an
audit letter in form and content reasonably acceptable to Seller and Purchaser,
making representations as to the matters related to rental income and


 


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operating expenses
for the Property prior to the date of Closing, and addressed to such auditors.


 


7.        Survival


 


The terms and provisions
of this Agreement shall expressly survive the Closing.


 


8.        Remedies


 


The remedies and
indemnities set forth herein are in addition to all rights of Purchaser as set
forth in the Contract.


 


9.        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 furtherance of the Closing and
consistent with the requirements of this Agreement.


 


10.      Defined Terms


 


All capitalized terms which are not expressly defined
herein shall have the meanings set forth in the Contract.


 


11.      Miscellaneous


 


(a)                    This Agreement
shall be binding upon and inure to the benefit of the parties to this Agreement
and their respective successors and permitted assigns.


 


(b)                   This Agreement
may be executed in one or more counterparts, each of which shall constitute an
original and all of which taken together shall constitute one Agreement.
Facsimile transmission or scanned (pdf) copy of any executed original of this
Agreement shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties shall confirm
facsimile transmissions by executing duplicate original documents and
delivering the same to the requesting party.


 


Signatures on following page.


 


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IN WITNESS
WHEREOF, the parties have executed this Post Closing and Indemnity Agreement
effective the first date written above.


 


 


Seller:


 


Valley
View Associates Limited Partnership


 


	
  By:

  	
  FCD-Hersch Associates,
  LLC, a North Carolina limited liability company

  
	
  Its:

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip W. Norwood

  	
   

  
	
   

  	
  Name:

  	
  Philip W. Norwood

  	
   

  
	
   

  	
  Its:

  	
   President

  	
   

  
					



 


 


Purchaser:


 


MB
HERNDON, L.L.C., a Delaware limited liability company


 


	
  By:

  	
  Minto Builders
  (Florida), Inc.,

  
	
   

  	
  a Florida corporation,
  its sole member

  
	
   

  	
   

  
	
  By:

  	
  /s/
  C. Benvenuto

  	
   

  
	
  Name:

  	
  C.
  Benvenuto

  	
   

  
	
  Its:

  	
  Authorized
  Agent