EXHIBIT 10.536
EXECUTION COPY
LEGAL SERVICES AGREEMENT
This Legal Services Agreement (this
“Agreement”), dated as of November 15, 2007 (the
“Effective Date”), is entered into by and between
The Inland Real Estate Group, Inc. an Illinois corporation
(“Service Provider”) and Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation (the
“Client”).
RECITALS
WHEREAS, the Law Department of Service Provider
provides certain legal services, including without limitation,
the legal services described and set forth in
Exhibit A attached hereto, (the
“Services”) to Affiliates (as defined herein) of the
Service Provider and real estate investment trusts and other
entities sponsored by Affiliates of Service Provider; and,
WHEREAS, the Client is desirous of retaining
Service Provider to have Service Provider’s Law Department
perform the Services for the Client in connection with the
Client’s real estate business for the benefit of the
Client and/or its Affiliates, and Service Provider is willing to
have its Law Department 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
Client, any entity representing a joint venture or similar
arrangement in which the Client, or an entity controlled by the
Client, is the general partner, managing member, beneficiary or
a trustee shall be deemed to be an “affiliate” of
the Client.
“ Business Management Agreement
” shall mean that certain Advisory Agreement, dated as of
September 18, 2003, as amended from time to time, between Inland
Western Advisory Services, Inc. and the Client.
“ Person ” shall mean an
individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or
organization.
ARTICLE II
PERFORMANCE OF SERVICES
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2.1
Service Provider agrees to perform the Services
for the Client in connection with its real estate business for
the benefit of Client 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 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 Client and Service Provider
acknowledge that the relationship created hereby is on a
non-exclusive basis, and that (x) the Client shall not be
required to retain Service Provider to perform the Services or
any individual Service, (y) the Client shall be permitted to
retain third parties to perform for the Client services which
are the same as or similar to the Services or any individual
Service, and (z) Service Provider shall be permitted to perform
the Services for other parties. Notwithstanding the
foregoing or anything else contained in this Agreement to the
contrary, Client agrees that Service Provider’s failure to
perform and provide any of the Services shall not constitute a
default under the terms and provisions of this Agreement if any
failure is due solely to any of the following:
(a)
Service Provider has a reasonable basis, in
Service Provider’s opinion, for concluding that the
performance of the Service could subject Service Provider to
liability or material damages in civil litigation; or
(b)
Service Provider has an insufficient number of
qualified personnel to provide the Services, provided that
Service Provider shall use commercially reasonable efforts to
eliminate and minimize the duration of the shortage of qualified
personnel; or,
(c)
Service Provider has a reasonable basis, in
Service Provider’s opinion, for concluding that the
performance of the Service could 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.
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, Client
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, Client 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 Client’s reasonable
satisfaction. As full compensation to which Service Provider
shall be entitled, Client 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.
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3.3
At any time during any Additional Services Term,
the Client shall have the right to terminate this Agreement,
without cause, by providing not less than 180 days’ prior
written notice to Service Provider of any election to so
terminate and specifying the effective date of such termination.
As full compensation to which Service Provider shall be
entitled, Client 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.
3.4
At any time during the Initial Services Term or
during an Additional Services Term, Service Provider may elect
to limit one or more of the Services it is providing to Client
upon not less than thirty (30) days’ prior written notice
to Client, 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, Client 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.
3.5
At any time after the first anniversary of the
Effective Date, Service Provider shall have the right to
terminate this Agreement by providing not less than sixty (60)
days’ prior written notice to Client, specifying the
effective date of such termination. The foregoing
notwithstanding, (x) Service Provider, upon ten (10) days’
prior written notice to Client, may terminate this Agreement, or
decline to provide a particular Service hereunder upon the
occurrence of any of the following events:
(i)
The Client 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, Client may cure
the breach up to three (3) times per calendar year by making
payment within ten (10) days of the Client’s receipt of
written notice that it failed to make the payment when due;
(ii)
The Client 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 Client does not promptly withdraw
the request upon Service Provider’s notice to Client of
Service Provider’s aforesaid opinion;
(iii)
The Client 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 Client does not promptly withdraw the request upon
Service Provider’s notice to Client of Service
Provider’s aforesaid opinion;
(iv)
The Client 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 Client does not promptly withdraw
the request upon Service Provider’s notice to Client of
Service Provider’s aforesaid advice of counsel; or
(v)
The Client requests that Service Provider
provide Services that in the Service Provider’s opinion
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
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Provider or any of its employees is subject to
and the Client does not promptly withdraw the request upon
Service Provider’s notice to Client of Service
Provider’s aforesaid opinion;
and (y) if at any time during the Initial Services
Term or any Additional Services Term the Client 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 the Client.
As full compensation to which Service
Provider shall be entitled, Client 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 during the term of the Agreement, Service
Provider shall provide Client with a reasonable opportunity to
transition any terminated Services to any replacement
provider(s) designated by the Client (“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 Client 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 Client, (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 Client of any plan or proposal for the liquidation
or dissolution of the Client; 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 Client representing
more than twenty-five percent (25%) of the aggregate ordinary
voting power represented by the issued and outstanding common
shares of the Client.
ARTICLE IV
INTERNAL CONTROL PROCEDURES
4.1
As a public entity, Client 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, if the Client shall determine that
to provide services to and for the benefit of the Client,
Service Provider must comply with the requirements of Section
404, then the Client and Service Provider shall develop and
implement an internal control plan or other processes and
procedures (or amend and revise any existing internal control
plan, processes and procedures) to comply with the requirements
(collectively, the “Internal Control Plan”).
Once developed and implemented, Service Provider shall use
its reasonable best efforts to have its internal controls comply
in all resp
