Exhibit 10.527
COMMUNICATIONS SERVICES AGREEMENT
This Communications Services Agreement (this
“Agreement”), dated as of January 1, 2004 (the
“Effective Date”), is entered into by and between
INLAND COMMUNICATIONS , INC., an
Illinois corporation (“Service Provider”) and
INLAND WESTERN RETAIL REAL ESTATE ADVISORY SERVICES,
INC., an Illinois corporation (the “Business
Manager”).
RECITALS
WHEREAS, Service Provider is in the business of
providing certain communications services, including without
limitation, the communications services described and set forth
in Exhibit A hereto (collectively, the
“Services”); and
WHEREAS, the Business Manager is desirous of
retaining Service Provider to perform the Services for the
Business Manager in connection with the Real Estate Business (as
defined herein) for the benefit of REIT (as defined herein)
and/or its Affiliates (as defined herein), and Service Provider
is willing to perform the Services, subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual
promises and obligations set forth below, the parties hereto,
intending to be legally bound, agree to the foregoing and as
follows:
ARTICLE I
DEFINITIONS
“Affiliate” shall mean,
except as otherwise provided herein, with respect to any Person,
any Person directly or indirectly controlling, controlled by or
under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative
meaning, the terms “controlling,” “controlled
by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or
cause the direction of management and policies of that Person
through the ownership of voting securities, by contract or
otherwise. With respect to the Business Manager, any entity
representing a joint venture or similar arrangement in which the
Business Manager, or an entity controlled by the Business
Manager, is the general partner or managing member shall be
deemed to be an “Affiliate” of the Business
Manager.
“Business Management
Agreement” shall mean that certain Advisory Agreement,
dated as of September 18, 2003, as amended from time to time,
between the Business Manager and REIT.
“Person” shall mean an
individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or
an agency or instrumentality thereof.
“Real Estate Business” shall
mean (i) any business activities conducted by REIT so long as
REIT remains qualified as a “real estate investment
trust” under Section 856 the Internal Revenue Code of
1986, as amended, and (ii) any business that is consistent with
and limited to the description of the business of REIT contained
in the prospectus forming a part of the Registration Statement
on Form S-11 (No. 333-122743), as amended, filed by REIT with
the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
“REIT” shall mean Inland
Western Retail Real Estate Trust, Inc., a Maryland
corporation.
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ARTICLE II
PERFORMANCE OF SERVICES
2.1 Service Provider agrees to perform the
Services for the Business Manager in connection with the Real
Estate Business of the REIT and/or its or their Affiliates.
Service Provider shall perform and provide the Services in a
professional manner and in accordance with all laws, statutes,
ordinances, codes, rules and regulations applicable to the
Services. Service Provider, at Business Manager’s cost,
may employ, contract with or use the service of any third party
in connection with the performance of the Services as the
Service Provider deems reasonably necessary or desirable,
including independent, outside counsel.
2.2 The Business Manager and Service Provider
acknowledge that the relationship created hereby is on an
exclusive basis as to Business Manager such that during the
Initial Services Term and any Additional Services Term (except
during any period that Service Provider is in default
hereunder), (x) the Business Manager shall be required to retain
only the Service Provider to perform all of the Services or any
individual Service, (y) the Business Manager shall not be
permitted to retain third parties to perform for the Business
Manager services the same as or similar to the Services or any
individual Service, but that in any event Service Provider shall
be permitted to perform the Services or any individual Service
for any other parties.
ARTICLE III
TERM AND TERMINATION
3.1 Subject to the termination provisions set
forth in this Article III, this Agreement shall continue
for an initial period of four (4) years from the Effective Date
(“Initial Services Term) and shall be automatically
renewed for consecutive three (3) year terms thereafter (each an
“Additional Services Term”) unless earlier
terminated as hereafter provided.
3.2 At any time during the Initial Services Term
or at any time during an Additional Services Term, the Business
Manager may terminate this Agreement for cause (i.e., a
material default by Service Provider hereunder) upon ten (10)
days’ prior written notice to Service Provider; provided,
however, that prior to exercising its rights under this
Section 3.2, the Business Manager shall notify Service
Provider of any default, and Service Provider shall have thirty
(30) days after receipt of the notice to cure the default to the
Business Manager’s reasonable satisfaction. As full
compensation to which Service Provider shall be entitled, the
Business Manager shall promptly make payment to Service Provider
as provided in Article V below for the Services performed
prior to the effective date of termination in compliance with
the terms and provisions of this Agreement.
3.3 At any time during the Initial Services Term
or during an Additional Services Term, the Business Manager
shall have the right to terminate this Agreement, without cause,
by providing not less than sixty (60) days’ prior written
notice to Service Provider of any election to so terminate and
specifying the effective date of such termination; provided,
however, in such event, Service Provider shall be entitled to
and shall be paid a termination fee equal to the product of: (a)
the average monthly compensation, set forth on Exhibit A, for
the six (6) months immediately preceding the month in which the
Service Provider is served the termination notice from the
Business Manager, multiplied by (b) six (6) (“Termination
Fee”). The Termination Fee shall be paid on the effective
date of such termination with a credit lo Business Manager for
compensation paid to Service Provider for the period from the
date of Service Provider’s receipt of the termination
notice to and including the effective date of such
termination.
3.4 Provided that Service Provider is not
providing or is terminating such Services to all other clients
of Service Provider, and no affiliate of Service Provider is
providing or is undertaking to provide such Services, Service
Provider, at any time during the Initial Services Term or during
an Additional
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Services Term, may elect to limit one or more of
the Services it is providing to the Business Manager upon not
less than sixty (60) days’ prior written notice to the
Business Manager, specifying the effective date such Services
shall no longer be performed and describing in reasonable detail
the Services to be terminated. As full compensation to which
Service Provider shall be entitled, the Business Manager shall
promptly make payment to Service Provider as provided in
Article V below for Services performed prior to the
effective date of termination in compliance with the terms and
provisions of this Agreement.
3.5 If at any time during the Initial Services
Term or any Additional Services Term the REIT has had a Change
of Control, as hereinafter defined, Service Provider shall have
the right to terminate this Agreement, without cause, upon
written notice to Business Manager. At any time during the
Initial Services Term or any Additional Services Term, and the
REIT has not had a Change of Control, Service Provider shall
have the right to terminate this Agreement, without cause, by
providing not less than one hundred eighty (180) days’
prior written notice to the Business Manager, specifying the
effective date of such termination. The foregoing
notwithstanding, Service Provider, upon ten (10) days’
prior written notice to the Business Manager, may terminate this
Agreement, or decline to provide a particular Service hereunder
upon the occurrence of any of the following events:
(a) The Business Manager fails, in the absence
of a bona fide dispute with respect to any payment, to
make payment for Services on its due date; provided, however,
the Business Manager may cure the breach up to three (3) times
per calendar year by making payment within ten (10) days of the
Business Manager’s receipt of written notice that it
failed to make the payment when due;
(b) The Business Manager requests that Service
Provider provide Services that in the Service Provider’s
opinion would violate any applicable law or the rules of any
regulatory body with jurisdiction and the Business Manager does
not promptly withdraw the request upon Service Provider’s
notice to the Business Manager of Service Provider’s
aforesaid opinion;
(c) The Business Manager requests that Service
Provider take any action that in the Service Provider’s
opinion would result in the commission of a fraud upon any
person or party and the Business Manager does not promptly
withdraw the request upon Service Provider’s notice to the
Business Manager of Service Provider’s aforesaid
opinion;
(d) The Business Manager requests that Service
Provider take any action that, upon the advice of counsel to
Service Provider, could subject Service Provider to liability or
material damages in civil litigation and the Business Manager
does not promptly withdraw the request upon Service
Provider’s notice to the Business Manager of Service
Provider’s aforesaid advice of counsel; or
(e) The Business Manager requests that Service
Provider provide Services that upon advice of counsel to Service
Provider would cause Service Provider or any of its employees to
be in violation of its professional code of ethics or other
ethical standards the Service Provider or any of its employees
is subject to and the Business Manager does not promptly
withdraw the request upon Service Provider’s notice to the
Business Manager of Service Provider’s counsel’s
advice.
As full compensation to which Service Provider
shall be entitled, the Business Manager shall promptly make
payment to Service Provider as provided in Article V
below for Services performed prior to the effective date of
termination in compliance with the terms and provisions of this
Agreement.
3.6 Upon any termination of this Agreement or
cessation of Services arising under Sections 3.2 or 3.4 of this
Agreement, during the Initial Services Term or any Additional
Services Term, Service Provider shall provide the Business
Manager with a reasonable opportunity to transition any
terminated Services to any replacement provider(s) designated by
the Business Manager (“Replacement Provider”), which
period shall not be more than sixty (60) days from the date of
termination of this Agreement or specified terminated Services
(the “Transition Period”). During the Transition
Period, Service Provider shall use reasonable efforts to avoid
causing any unnecessary interruption of the terminated Services
so as to
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provide a smooth transition of such Services
(the “Transition”). All services related to
Transition shall be deemed Services and subject to the charges
and fees set forth in Exhibit A attached hereto.
3.7 For the purposes hereof, the term
“Change of Control” shall mean the occurrence of any
one or more of the following:
(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
