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FORM OF CONSULTING AGREEMENT

Consulting Services Agreement

FORM OF CONSULTING AGREEMENT | Document Parties: 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 | Inland Northwest Management Corp | Inland Real Estate Investment Corporation | Inland Southwest Management Corp | Inland Western Management Corp | INLAND WESTERN RETAIL REAL ESTATE TRUST, INC | IWEST Merger Agent, LLC You are currently viewing:
This Consulting Services Agreement involves

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 | Inland Northwest Management Corp | Inland Real Estate Investment Corporation | Inland Southwest Management Corp | Inland Western Management Corp | INLAND WESTERN RETAIL REAL ESTATE TRUST, INC | IWEST Merger Agent, LLC

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Title: FORM OF CONSULTING AGREEMENT
Governing Law: Illinois     Date: 8/17/2007
Law Firm: Duane Morris;Jenner Block    

FORM OF CONSULTING AGREEMENT, Parties: 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 , inland northwest management corp , inland real estate investment corporation , inland southwest management corp , inland western management corp , inland western retail real estate trust  inc , iwest merger agent  llc
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Exhibit 10.3

FORM OF CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”) is made as of this     day of              , 2007, by and between INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a Maryland corporation (“IWEST”), and                                      (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                        , 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).  Consultant acknowledges the Consulting Services are in addition to, and in no way limit, Consultant’s duties, as applicable, to IWEST as a director of IWEST but nothing in this Agreement shall have the effect of expanding the scope of fiduciary duties that Consultant may owe IWEST under applicable law.  IWEST acknowledges that Consultant is providing the Consulting Services solely in his capacity as a consultant and not as a director, if applicable, 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

 

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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 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

 

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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.

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









 
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