EXHIBIT 10.4
FIRST AMENDED AND RESTATED
PROPERTY ACQUISITION SERVICE AGREEMENT
THIS FIRST AMENDED AND RESTATED PROPERTY ACQUISITION SERVICE AGREEMENT
(this "Agreement") is entered into as of the ___ day of November, 2000, by
and among Inland Real Estate Acquisitions, Inc., an Illinois corporation
("Acquisitions"), Inland Retail Real Estate Trust, Inc., a Maryland
corporation (the "Company") and Inland Retail Real Estate Advisory Services,
Inc., an Illinois corporation (the "Advisor").
WHEREAS, the Company intends to commence a secondary offering of its
shares of common stock, par value $0.01 per share, soon after a registration
statement it will file with the Securities and Exchange Commission is
declared effective; a prospectus will be included as part of that
registration statement; such prospectus, while in draft form, the latest
draft form thereof, and then in its final form, as it may be amended or
supplemented from time to time, is hereinafter referred to as the
"Prospectus"; and
WHEREAS, the Company was incorporated in September 1998 to acquire and
manage a diversified portfolio of real estate primarily (i) improved for use
as retail establishments, principally multi-tenant shopping centers, or (ii)
improved with other commercial facilities which provide goods or services
(collectively, the "Primary Criteria for Investment"); such real estate will
be located mainly in the states east of the Mississippi River in the United
States (the "Primary Geographical Area of Investment"); the Company may also
acquire, among other properties, single-user retail properties located
anywhere throughout the United States if they are leased on a triple-net
lease basis by creditworthy tenants as described in the Prospectus; and
WHEREAS, the Company may enter into sale and leaseback transactions,
pursuant to which the Company will purchase a property from a person and
lease the property to such Person; and
WHEREAS, the Advisor and the Company have entered into a certain
advisory agreement (the "Advisory Agreement"), dated February 11, 1999 as
amended and restated on the date hereof; and
WHEREAS, under the terms of the Advisory Agreement, the Advisor
generally has responsibility for the day-to-day operations of the Company,
administers the Company's bookkeeping and accounting functions, serves as the
Company's consultant in connection with policy decisions to be made by the
directors of the Company (the "Directors"), manages or causes to be managed
by another party the Company's properties and renders other services as the
Directors deem appropriate; the Advisor is subject to the supervision of the
Directors and has only such functions as are delegated to it by the
Directors; and
WHEREAS, Acquisitions seeks properties for the Company, and may do so
for other real estate investment programs sponsored by Inland Real Estate
Investment Corporation ("IREIC"), and, among other things, does due diligence
in connection therewith, and negotiates the terms of such acquisitions; and
WHEREAS, the Company, the Advisor and Acquisitions are all affiliates;
WHEREAS, the Company, the Advisor, Acquisitions, Inland Real Estate
Advisory Services ("IREAS") and Inland Real Estate Corporation ("IREC") have
executed that certain Property Acquisition Services Agreement dated February
11, 1999 (the "Original Agreement"); and
WHEREAS, IREC has become a self-administered real estate investment
trust ("REIT") through a merger with IREAS and Inland Commercial Property
Management, Inc. and is no longer a party to the Original Agreement; and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement to reflect the withdrawal of IREC and IREAS from the terms of the
Original Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows and hereby amend and
restate the Original Agreement in its entirety to read as follows:
1. INCORPORATION OF RECITALS. By this reference, the recitals set forth
above are hereby incorporated into this Agreement to the same extent as if
set forth fully herein.
2. GENERAL SERVICES. During the term of this Agreement, Acquisitions
shall continually present to the Company suitable opportunities to make
investments in real properties consistent with the investment policies of the
Company, the amount of funds the Company has available for investment, and
the investment program adopted by the Directors and in effect at the time.
Towards this end, Acquisitions shall (i) search for, (ii) identify, (iii)
examine and evaluate the potential value, the financial condition, the
business history, the demographics of the surrounding area, the proposed
purchase price and the geographic and market diversification of, (iv)
negotiate with proposed sellers for the purchase of, on behalf of the
Company, and (v) in some cases, enter into contracts to purchase, real
properties that meet the Company's Primary Criteria for Investment (a
"Proposed Property").
3. EVALUATION OF PROPOSED PROPERTIES. In evaluating a Proposed Property,
Acquisitions shall consider a number of factors, including a Proposed
Property's: (i)geographic location and type; (ii) construction quality and
condition; (iii) current and projected cash flow; (iv) potential for capital
appreciation; (v) rent roll, including the potential for rent increases; (vi)
potential for economic growth in the tax and regulatory environment of the
community in which the Proposed Property is located; (vii) potential for
expanding the physical layout of the Proposed Property and/or the number of
sites; (viii) occupancy and demand by tenants for properties of a similar
type in the same geographic vicinity; (ix) prospects for liquidity through
sale, financing or refinancing of the Proposed Property; (x) competition from
existing properties and the potential for the construction of new properties
in the area; and (xi) treatment under applicable federal, state and local tax
and other laws and regulations.
2
4. ENVIRONMENTAL REPORTS. In evaluating any Proposed Property for
purchase, Acquisitions shall require the seller to provide a current Phase I
environmental report and, if necessary, a Phase II environmental report, with
respect to such Proposed Property.
5. APPRAISALS. All acquisitions of a Proposed Property to be made by the
Company shall be supported by an appraisal prepared by a competent,
independent appraiser who is a member-in-good standing of the Appraisal
Institute prior to the purchase of such Proposed Property.
6. PURCHASE OF PROPERTY. Acquisitions may purchase a Proposed Property
in its own name, assume loans in connection therewith and temporarily hold
title thereto for the purpose of facilitating acquisition or financing by the
Company.
7. PROCESS FOR RESOLVING CONFLICTING OPPORTUNITIES. To the extent
possible, the resolution of conflicting investment opportunities between the
Company and other investment entities advised or managed by the Advisor and
its affiliates shall be resolved by giving priority to the Company, provided
that the Proposed Property meets the acquisition criteria of the Company. The
Company shall have the first opportunity to purchase such Proposed Property
placed under contract by Acquisitions, the Advisor or its affiliates,
provided the Company is able to close the purchase of the Proposed Property
within 60 days.
Other factors which may be considered in connection with evaluating the
suitability of the Proposed Property for investment include: (i) the effect
of the acquisition on the diversification of each entity's portfolio; (ii)
the amount of funds available for investment; (iii) cash flow; and (iv) the
estimated income tax effects of the purchase and subsequent disposition. The
Independent Directors of the Company, must, by a majority vote, approve all
actions by the Advisor or its affiliates which present potential conflicts
with the Company as set forth above.
8. BOARD APPROVAL. Any transfer of a Proposed Property from Acquisitions
to the Company must be approved by a majority of the Directors, in each case
including a majority of the Company's Independent Directors.
9. PURCHASE PRICE. The Purchase Price of any Proposed Property acquired
by the Company from Acquisitions: (i) may not exceed its fair market value as
determined by a competent independent appraiser who is a member in good
standing of the Appraisal Institute; and (ii) must be approved by a majority
of the Directors of the Company (including a majority of the Independent
Directors) not interested in the transaction as being fair and reasonable to
the Company and generally at a price to the Company no greater than the cost
of the Proposed Property to Acquisitions (including the Contract Price for
the Property, as hereinafter defined, and the Acquisition Expenses, as
hereinafter defined); provided that if the price to the Company is in excess
of such cost, substantial justification for such excess must exist and such
excess must be reasonable. In no event may the cost of the Proposed Property
to the Company exceed its appraised value as of the date of the Company's
acquisition thereof.
10. NO PARTNERSHIP OR JOINT VENTURE. The parties to this Agreement are
not, and shall not be deemed to be, partners or joint venturers with each
other.
3
11. RECORDS. Acquisitions shall maintain appropriate books of account
and records relating to services performed hereunder, which shall be
accessible for inspection by the Company at any time during ordinary business
hours.
12. REIT QUALIFICATIONS. Notwithstanding any other provision of this
Agreement to the contrary, Acquisitions shall refrain from any action which,
in its reasonable judgment or in the judgment of the Directors, would
adversely affect the qualification of the Company as a REIT under the
Internal Revenue Code of 1986, as amended, or which would violate any law,
rule or regulation of any governmental body or agency having jurisdiction
over the Company or its securities, or which would otherwise not be permitted
by the articles of incorporation of the Company. If any such action is
ordered by the Directors, Acquisitions shall promptly notify the Directors of
Acquisition's judgment that such action would adversely affect such status or
violate any such law, rule or regulation or such articles of incorporation
and shall refrain from taking such action pending further clarification or
instruction from the Directors.
13. BANK ACCOUNTS. At the direction of the Directors, Acquisitions may
establish and maintain bank accounts in the name of the Company, and may
collect and deposit into and disburse from such accounts moneys on behalf of
the Company, upon such terms and conditions as the Directors may approve,
provided that no funds in any such account shall be commingled with funds of
Acquisitions. Acquisitions shall from time to time, as the Company may
require, render appropriate accountings of such collections, deposits and
disbursements to the Directors and to the auditors of the Company.
14. FIDELITY BOND. Acquisitions shall not be required to obtain or
maintain a fidelity bond in connection with the performance of its services
hereunder.
15. INFORMATION FURNISHED ACQUISITIONS. The Directors will keep
Acquisitions informed in writing concerning the investment and financing
policies of the Company, and the amount of funds it has available for
investment. The Directors shall notify Acquisitions promptly in writing of
its intention to make any investments or to sell or dispose of any existing
investments. The Company shall furnish Acquisitions with a certified copy of
all financial statements, a signed copy of each report prepared by
independent certified public accountants, and such other information with
regard to its affairs as Acquisitions may reasonably request.
16. COMPENSATION. Acquisitions shall be paid for services rendered by
Acquisitions under this Agreement as follows:
(a) the Company shall reimburse Acquisitions in full for all Acquisition
Expenses (as defined below) incurred by Acquisitions on behalf of the Company
in connection with its performance of its duties under this Agreement;
PROVIDED, HOWEVER, the total of all Acquisition Expenses paid by the Company
in connection with the purchase of a Proposed Property by the Company may not
exceed an amount equal to 6% of the Contract Price for the Property (as
defined below);
4
(b) "Acquisition Expenses" means expenses related to the selection,
evaluation and acquisition of, and investment in, properties, whether or not
acquired or made, including but not limited to legal fees and expenses,
travel and communications expenses, cost of appraisals and surveys,
nonrefundable option payments on property not acquired, accounting fees and
expenses, computer use related expenses, architectural and engineering
reports, environmental and asbestos audits, title insurance and escrow fees,
loan fees or points or any fee of a similar nature, however designated, and
personnel and miscellaneous expenses related to the selection and acquisition
of properties; and
(c) "Contract Price for the Property" means the amount actually paid or
allocated to the purchase of a Proposed Property exclusive of Acquisition
Expenses.
17. BUSINESS COMBINATION OF EITHER COMPANY AND ITS ADVISOR. If the
business conducted by the Advisor to the Company is acquired by or
consolidated into the Company at any time at the option of the Company, the
Advisor and/or its respective shareholders will receive in connection with a
business combination then consummated with the Company, and in exchange for
terminating the Advisory Agreement and the release or waiver of all fees
payable under the Advisory Agreement until its stated termination, but not
paid, shares of common stock of the Company, as the case may be, in an amount
equal to the value of the fees released or waived as determined by the
Independent Directors of the Company, who may rely on a valuation prepared by
an independent third party. The Company shall not terminate this Agreement
solely for the purpose of avoiding such a business combination, such as in
anticipation of the listing of its shares of common stock on a national stock
exchange or their inclusion in a national market system. In the event such a
business combination is consummated, this Agreement will terminate.
18. EXPENSES OF THE COMPANY. The Company shall pay all of its own
expenses and shall reimburse Acquisitions for its expenses as provided in
Section16 hereof.
19. OTHER ACTIVITIES OF ACQUISITIONS. Nothing herein contained shall
prevent Acquisitions from engaging in any other business or activity
including the rendering of services with respect to real estate investment
opportunities to any other person or entity. Directors, officers, employees
and agents of Acquisitions may serve as directors, trustees, officers,
employees or agents of the Company, but shall receive no compensation (other
than reimbursement for expenses) from the Company for such service.
20. TERM; TERMINATION OF AGREEMENT. This Agreement shall have an
initial term of one year and, thereafter, will continue in force for
successive one-year renewals with the mutual consent of the parties including
an affirmative vote of a majority of the Independent Directors of the
Company. Each extension shall be executed in writing by each party hereto
before the expiration of the term of this Agreement or of any extension
thereof.
Notwithstanding any other provision of this Agreement to the
contrary, the parties, by mutual consent, may terminate this Agreement, or
any extension hereof, upon 60 days written notice without cause or penalty.
In the event of the termination of this Agreement, Acquisitions will
5
cooperate with the other parties, and take all reasonable steps requested to
assist such parties in making an orderly transition of the acquisition
function.
If this Agreement is terminated pursuant to this Section, such
termination shall be without any further liability or obligation of any of
the terminating parties to each other.
If this Agreement is terminated because of a business combination as
described in Section 17, all obligations of Acquisitions to offer Proposed
Properties to the Company shall also terminate.
21. ASSIGNMENTS. No Party may assign this Agreement without the
written consent of each other 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.
22. DEFAULT, BANKRUPTCY, ETC. At the option solely of the Company,
this Agreement shall be terminated immediately upon written notice of
termination from the Board of Directors of the Company to Acquisitions if any
of the following events occurs:
(a) Acquisitions violates any provisions of this Agreement and
after notice of such violation shall not cure such default
within 30 days; or
(b) A court of competent jurisdiction enters a decree or order
for relief in respect of Acquisitions in any involuntary case
under the applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appoints a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of Acquisitions or for any substantial part
of its property or orders the winding up or liquidation of
Acquisition's affairs; or
(c) Acquisitions commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, or consents
to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of Acquisitions or for any substantial part
of its property, or makes any general assignment for the
benefit of creditors, or fails generally to pay its debts as
they become due.
Acquisitions agrees that if any of the events specified in
subsections(b) and (c) of this Section 22 occur, it will give written notice
thereof to the Company within seven days after the occurrence of such event.
23. ACTION UPON TERMINATION. Acquisitions shall not be entitled to
compensation after the date of termination of this Agreement for further
services hereunder, but shall be paid all compensation accruing to the date
of termination. Subject to the provisions of Section 17, Acquisitions shall
forthwith upon a termination:
6
(a) Pay over to the Company all moneys collected and held
for the account of the Company pursuant to this Agreement;
(b) Deliver to the Board of Directors of the Company a full
accounting, including a statement showing all payments
collected by it and a statement of all money held by it;
(c) Deliver to the Board of Directors of the Company all
property and documents of the Company then in the custody
of Acquisitions; and
(d) Cooperate with the Company and take all reasonable steps
requested by the Company to assist its Board of Directors in
making an orderly transition of the acquisition function.
24. 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, or otherwise provided herein.
25. SUCCESSORS AND ASSIGNS. This Agreement shall bind any successors
or assigns of the parties hereto as herein provided.
26. GOVERNING LAW. The provisions of this Agreement shall be
governed, construed and interpreted in accordance with the laws of the State
of Illinois as at the time in effect.
27. NOTICES. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing unless some other method
of giving such notice, report or other communication is accepted by the party
to whom it is given and shall be given by being delivered at the following
addresses of the parties hereto:
Inland Real Estate Acquisitions, Inc.; and
Inland Retail Real Estate Advisory Services, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: President
Inland Retail Real Estate Trust, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, Vice President
with a copy to:
Xxxxxx Xxxxxx Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
7
Attention: Xxxxx Xxxxxxx
Any party may at any time give notice in writing to the other parties of a
change of its address for the purpose of this Section 27.
28. CONFLICTS OF INTEREST AND FIDUCIARY DUTIES TO THE COMPANY AND TO
ITS STOCKHOLDERS. The parties hereto recognize that their relationship is
subject to various conflicts of interest as set forth in the Prospectus.
Acquisitions, on behalf of itself and its affiliates, acknowledges that
Acquisitions and its affiliates have fiduciary duties to the Company and to its
Stockholders. Acquisitions, on behalf of itself and its affiliates, represents
and agrees (i) that Acquisitions and its affiliates will endeavor to balance the
interests of the Company with the interests of Acquisitions and its affiliates
in making any determination where a conflict of interest exists between the
Company and Acquisitions or its affiliates; and (ii) that the actions and
decisions of Acquisitions and its affiliates under this Agreement (including but
not limited to actions and decisions in connection with the purchase of Proposed
Properties for the Company) will be made in the manner most favorable to the
Company and to its Stockholders, so as not to breach their respective fiduciary
duties to the Company and to its Stockholders.
29. 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.
* * * * *
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
Inland Real Estate Acquisitions, Inc.
By: /s/ G. Xxx Xxxxxxx
----------------------------------------------
Title: President
Inland Retail Real Estate Trust, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Title: Vice President
Inland Retail Real Estate Advisory Services, Inc.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Title: President
9
