EXHIBIT 10.532
EXECUTION COPY
INSTITUTIONAL INVESTOR RELATIONSHIPS
SERVICES AGREEMENT
This Institutional Investor Relationships
Services Agreement (this “Agreement”), executed on
November 15, 2007 and effective as of May 3, 2006 (the
“Effective Date”), is entered into by and between
INLAND INSTUTIONAL CAPITAL PARTNERS CORPORATION, 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 equity capital relationship services,
including without limitation, the 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
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(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.
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
Services to be provided by Service Provider
hereunder are to be provided on a non-exclusive basis such that
Business Manager shall be permitted to employ other parties to
perform any one or more of the Services and that Service
Provider shall be permitted to perform any one or more of the
Services to 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, including any
accrued Advisory Fee, and in addition, Business Manager shall
continue and promptly pay to Service Provider future Client
Relation success fees, as set forth in Section 2 of Exhibit A,
as funds are called for under applicable venture agreements,
through and including the final fund draw by the venture. The
terms of the immediately proceeding sentence shall indefinitely
survive any expiration or earlier termination 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 one hundred eighty (180) days’
prior written notice to Service Provider of any election to
terminate and specifying the effective date of such termination.
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,
including any accrued Advisory Fee, and in addition, Business
Manager shall continue and promptly pay to Service Provider
future Client Relation success fees, as set forth in Section 2
of Exhibit A, as funds are called for under applicable venture
agreements, through and including the final fund draw by the
venture. The
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terms of the immediately proceeding sentence
shall indefinitely survive any expiration or earlier termination
of this Agreement.
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 Services Term, may elect to limit one or more of the
Services it is providing to the Business Manager upon not less
than thirty (30) 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 the Services
performed prior to the effective date of termination in
compliance with the terms and provisions of this Agreement,
including any accrued Advisory Fee, and in addition, Business
Manager shall continue and promptly pay to Service Provider
future Client Relation success fees, as set forth in Section 2
of Exhibit A, as funds are called for under applicable venture
agreements, through and including the final fund draw by the
venture. The terms of the immediately proceeding sentence shall
indefinitely survive any expiration or earlier termination 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 not less
than thirty (30) days 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
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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 the Services performed prior to the effective date of
termination in compliance with the terms and provisions of this
Agreement, including any accrued Advisory Fee, and in addition,
Business Manager shall continue and promptly pay to Service
Provider future Client Relation success fees, as set forth in
Section 2 of Exhibit A, as funds are called for under applicable
venture agreements, through and including the final fund draw by
the venture. The terms of the immediately proceeding sentence
shall indefinitely survive any expiration or earlier termination
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 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 REIT 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 of Control: (i) any affiliate
controlled by the REIT, (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
entities listed in clauses (i) through (iv) above (all of the
entities described in clauses (i) through (v) above are
hereinafter sometimes referred to as the “Inland
Companies”;
(b)
The approval by the holders of the outstanding
shares of the REIT of any plan or proposal for the liquidation
or dissolution of the REIT; or
(c)
Any person or group of related persons for
purposes of Section 13(d) of the Securities Exchange Act of
1934, as amended (other than any one or more of the Inland
Companies) shall become the owner, directly or indirectly,
beneficially or of record, of shares of the REIT representing
more than twenty-five percent (25%) of the aggregate ordinary
voting power represented by the issued and outstanding common
shares of the REIT.
ARTICLE IV
INTERNAL CONTROL PROCEDURES
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4.1
As a public entity, REIT is required to comply
with the requirements of Section 404 of the Sarbanes-Oxley Act
of 2002, as may be amended from time to time (“Section
404”). Notwithstanding anything to the contrary
contained in this Agreement (including, without limitation,
Article III and Section 8.4 hereof), if the
Business Manager shall determine that, to provide services to
and for the benefit of the Business Manager and REIT, Service
Provider must comply with the requirements of Section 404, then
the Business Manager and Service Provider shall develop and
implement an internal control plan or other processes and
procedures (or amend and re
