EXHIBIT 10.557
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this “Agreement”) is made as
of this 14th day of August, 2007, by and between INLAND WESTERN
RETAIL REAL ESTATE TRUST, INC., a Maryland corporation
(“IWEST”), and Daniel L. Goodwin (the
“Consultant”).
RECITALS:
A.
IWEST is a real estate investment trust which owns, operates and
acquires a diversified portfolio of real estate, primarily
multi-tenant shopping centers and single-user net lease properties
(the “Business”).
B.
IWEST, IWEST Acquisition 1, Inc., IWEST Acquisition 2, Inc., IWEST
Acquisition 3, Inc., IWEST Acquisition 4, Inc., Inland Western
Retail Real Estate Advisory Services, Inc. (the
“Advisor”), Inland Southwest Management Corp.
(“Southwest”), Inland Northwest Management Corp.
(“Northwest”), Inland Western Management Corp.
(“Western”), Inland Real Estate Investment Corporation,
and IWEST Merger Agent, LLC, in its capacity as agent for certain
stockholders, have entered into that certain Agreement and Plan of
Merger, dated as of August 14, 2007 (the “Merger
Agreement”), pursuant to which the Advisor, Southwest,
Northwest and Western will each become a wholly-owned subsidiary of
IWEST and/or its Affiliates (as defined herein) (collectively, the
“Mergers”).
C.
Consultant, as an officer of an Affiliate of the Advisor has
obtained certain unique and particular talents and abilities with
regard to the Business and will provide IWEST with strategic and
operational assistance for the Engagement Term (as defined herein),
including, without limitation making recommendations and providing
guidance to IWEST as to prospective investment, financing,
acquisition, disposition, development, joint venture and other real
estate opportunities contemplated from time to time by IWEST and
the Board of Directors (collectively, the “Consulting
Services”). For purposes herein, the term (i)
“Affiliate” means a person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by,
or is under common control with, the person specified and (ii)
“control” or any similar term means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a person, whether through the
ownership of voting shares, by contract or otherwise.
D.
The Consultant will receive benefits from consummating the Mergers
as a shareholder of one or more of the Advisor, Southwest,
Northwest and Western.
E.
IWEST and the Consultant are entering into this Agreement
concurrently with the execution of the Merger Agreement, subject to
the terms, conditions and covenants hereinafter set forth.
Terms not otherwise defined herein shall have the meaning
ascribed to the term in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
agreements, covenants and conditions set forth herein, the receipt
and sufficiency of which is hereby acknowledged, the Consultant and
IWEST hereby agree as follows:
ARTICLE I
1.1
ENGAGEMENT . IWEST hereby engages Consultant on a
non-exclusive basis, and Consultant hereby accepts such engagement
upon the terms and conditions hereinafter set forth. Upon
reasonable prior notice to Consultant, the Consultant shall use his
commercially reasonable efforts to
provide IWEST with the Consulting Services at the Chief Executive
Officer of IWEST’s or IWEST’s Board’s request.
At the Chief Executive Officer of IWEST’s or its
Board’s request, Consultant shall use commercially reasonable
efforts to attend meetings of senior management of IWEST with
respect to the near and long-term operations of IWEST and its
Affiliates. Consultant shall also provide such additional
services as may be reasonably requested from time to time by the
Board, consistent with the services provided to IWEST or any
Service Provider prior to the date of this Agreement by Consultant,
other than those services that are contemplated to be provided
pursuant to the Services Agreements (as defined in the Merger
Agreement) as of the date of this Agreement. The Consulting
Services to be provided hereunder require Consultant to attend, at
the Chief Executive Officer of IWEST’s or its Board of
Directors’ request, certain meetings of the Board of
Directors or management team of IWEST of the kind and nature
attended by Consultant prior to the date of this Agreement (i.e.,
Board of Directors meetings, management committee meetings, audit
committee meetings and acquisition committee meetings). IWEST
acknowledges that Consultant is providing the Consulting Services
solely in his capacity as a consultant and that, with respect to
Consulting Services, Consultant’s status shall be that of an
independent contractor, and not that of an agent or employee of
IWEST. Consultant shall not hold himself out as, nor claim to
be acting as, an employee or agent of IWEST solely as a result of
providing the Consulting Services. Consultant is not
authorized to, and shall not, make or undertake any agreement,
understanding, waiver or representation on behalf of IWEST in his
capacity as Consultant, except as may be provided in a separate
Ancillary Agreement.
1.2
ACTIVITIES AND DUTIES DURING ENGAGEMENT . Consultant
represents and warrants to IWEST that he is able to accept
engagement by IWEST as Consultant; provided, however, that
Consultant and IWEST acknowledge and agree that Consultant will
devote a limited amount of time to his duties hereunder, and
nothing contained herein shall restrict Consultant from being
employed by or accepting employment, consulting arrangements or
other positions with IWEST or other businesses, including
businesses that may compete with the business conducted by IWEST,
provided that such activities do not violate Article IV hereof.
ARTICLE II
2.1
TERM .
(a)
Unless terminated earlier in accordance with Section 2.1(b) or
Section 2.1(c) hereof, the term of this Agreement shall
automatically commence on the Closing Date (as defined in the
Merger Agreement) (but only upon the Closing Date) hereof and shall
last for a period of three (3) years (such period being hereinafter
referred to as the “Term”). Notwithstanding the
foregoing, IWEST may terminate this Agreement at any time, with or
without cause (the Term, as it may be extended or terminated
pursuant to this Article II, is herein referred to as the
“Engagement Term”).
(b)
The Consultant shall have the option, but not the obligation, to
terminate the Engagement Term upon the occurrence of any of the
following events:
(i)
Disability of Consultant. For purposes of this Agreement, the
term “disability” (or any similar term) shall mean any
bodily injury, disease, illness, or emotional or nervous disorder
that prevents the Consultant from performing any or all Consulting
Services for a period of at least thirty (30) consecutive days;
(ii)
The failure of IWEST to perform its obligations provided herein and
the continuance of such failure for a period of thirty (30)
consecutive days
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after receipt by IWEST from the Consultant of written notice of
such failure to perform ; or
(iii)
The occurrence of a Change in Control Event (as defined
herein).
(c)
This Agreement shall automatically terminate upon the death of
Consultant.
2.2
DEFINITION OF “CHANGE IN CONTROL EVENT” .
A “Change in Control Event” means the occurrence of 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 IWEST to any person or group of related persons for
purposes of Section 13(d) of the Securities Exchange Act of 1934,
as amended; 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 Event: (i) any
Affiliate controlled by IWEST, (ii) Inland Real Estate Corporation,
(iii) Inland American Real Estate Trust, Inc., (iv) The Inland
Group, Inc., or (v) any Affiliate controlled by any of the persons
listed in clauses (i) through (iv) above (all of the entities
described in clauses (i) through (v) above to be hereinafter
sometimes referred to as the “Inland Companies”);
(b)
The approval by the holders of the outstanding shares of IWEST of
any plan or proposal for the liquidation or dissolution of
IWEST;
(c)
Any person or group of related persons (other than any one or more
of the Inland Companies) shall become the owner, directly or
indirectly, beneficially or of record, of shares of IWEST
representing more than twenty-five percent (25%) of the aggregate
ordinary voting power represented by the issued and outstanding
common shares of IWEST; or
(d)
Following any change in the composition of the board of directors
of IWEST, a majority of the board of directors of IWEST are not
either (i) members of the board of directors of IWEST as of the
date hereof, or (ii) members of the board of directors of IWEST
whose nomination for election or election to the board of directors
of IWEST has been recommended, approved or ratified by at least
eighty percent (80%) of the board of directors of IWEST then in
office who were either members of the board of directors of IWEST
as of the date hereof or whose election as a member of the board of
directors of IWEST was previously so approved.
2.3
CESSATION OF RIGHTS AND OBLIGATIONS: SURVIVAL OF CERTAIN
PROVISIONS . On the date of expiration or termination of
the Engagement Term for any reason, all of the respective rights,
duties, obligations and covenants of the parties hereto, as set
forth herein, shall, except as specifically provided herein to the
contrary, cease and become of no further force or effect as of the
date of said termination, and shall only survive as expressly
provided for herein.
ARTICLE III
3.1
NO COMPENSATION . During the Engagement Term, IWEST
shall not pay to Consultant, and Consultant shall not be entitled
to receive, any salary or other compensation for his services
provided under this Agreement.
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3.2
REIMBURSEMENT OF EXPENSES . IWEST shall reimburse
Consultant for all ordinary and necessary out-of-pocket business
expenses incurred by him and in connection with performing
Consulting Services at the request of IWEST or IWEST’s Board
hereunder, in the manner and time consistent with IWEST’s
policy governing reimbursement of expenses incurred by
employees.
ARTICLE IV
4.1
ASSIGNMENT . This Agreement or any right or interest
hereunder may not be assigned by either party without the prior
written consent of the other party hereto. Consultant shall
not, without the prior written consent of IWEST, employ, contract
with or use the services of any third party in connection with the
performance of any of the services to be rendered under this
Agreement, or otherwise designate the responsibility of performance
of any services to be rendered under this Agreement to any third
party. Any attempted assignment, designation, employment or
use in violation of this Section 4.1 shall be void and of no force
or effect.
4.2
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION .
Consultant hereby acknowledges and agrees that as a result of
his engagement hereunder he may acquire and use information of a
special and unique nature and value specifically relating to IWEST
that is not generally known to the public such as financial or
operating information, business or strategic plans identified as
such, property acquisition memorandums or appraisals, entity
valuation or models, and employee records (all such information
being hereinafter referred to as “Confidential
Information”); provided, however, that any information
concerning tenants or prospective tenants of, investors or
potential investors, or members of any broker-dealer group or
potential broker-dealer group to, or of, IWEST shall not constitute
“Confidential Information” unless IWEST
