Exhibit 10.548
OFFICE AND FACILITIES MANAGEMENT SERVICES
AGREEMENT
This Office and Facilities Management Services
Agreement (this “Agreement”), dated as of February
10, 2005 (the “Effective Date”), is entered into by
and among INLAND FACILITIES MANAGEMENT, INC., an
Illinois corporation (“IFMI”), INLAND OFFICE
SERVICES, INC., an Illinois corporation, Inland Real Estate
Strategic Services, Inc. (“IRESSI”), an Illinois
corporation (IFMI, IOS and IRESSI, individually, “Service
Provider” and collectively, “Service
Providers”) and INLAND WESTERN RETAIL REAL ESTATE
ADVISORY SERVICES, INC., an Illinois corporation (the
“Business Manager”).
RECITALS
WHEREAS, Service Providers are in the business
of providing certain office and facilities management services,
including without limitation, the office and facilities
management services described and set forth in Exhibit A
hereto (collectively, the “Services”); and
WHEREAS, the Business Manager is desirous of
retaining Service Providers 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 Providers
are 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.
ARTICLE II
PERFORMANCE OF SERVICES
2.1 Service Providers agree to perform the
Services for the Business Manager in connection with the Real
Estate Business for the benefit of the REIT and/or its or their
Affiliates. Service Providers 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 Providers, 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 Providers deem reasonably necessary
or desirable, including independent, outside counsel.
2.2 The Business Manager and Service Providers
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 Providers 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 Providers
shall be permitted to perform the Services or any individual
Service for any other parties.
ARTICLE IV
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 three (3) 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 Providers hereunder) upon ten (10)
days’ prior written notice to Service Providers; provided,
however, that prior to exercising its rights under this
Section 3.2, the Business Manager shall notify Service
Providers of any default, and Service Providers 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 Providers shall be entitled, the
Business Manager shall promptly make payment to Service
Providers 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 the Service Providers of any election to so terminate
and specifying the effective date of such termination; provided,
however, in such event, the Service Providers 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 Providers are 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 to Business Manager of
compensation paid to the Service Providers for the period from
the date for Service Providers’ receipt of the termination
notice to and including the effective date of such
termination.
3.4 Provided that a 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 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, a 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, a 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, a 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 cute 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 a Service
Provider provide Services that in the Service Providers’
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 a 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 a Service
Provider take any action that, upon the advice of counsel to
Service Provider, could subject a 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 a Service
Provider provide Services that upon advice of counsel to a
Service Provider would cause the 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 the Service Provider’s
notice to the Business Manager of Service Provider’s
counsel’s advice.
As full compensation to which Service Providers
shall be entitled, the Business Manager shall promptly make
payment to the Service Providers 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 Providers 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 Providers 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 PROCE
