EXHIBIT 10.552
EXECUTION COPY
TRANSITION PROPERTY
DUE DILIGENCE SERVICES AGREEMENT
THIS TRANSITION PROPERTY DUE DILIGENCE
SERVICES AGREEMENT (this “Agreement”) is made
and entered into as of the 15 th of November, 2007,
by and between INLAND WESTERN RETAIL REAL ESTATE TRUST,
INC. , a Maryland corporation (“Client”), and
INLAND REAL ESTATE ACQUISITIONS, INC. , Illinois
corporation (“Service Provider”).
RECITALS:
A.
Client is in the business of the ownership,
operation, management, leasing and development of a diversified
portfolio of real estate, primarily retail, multi-tenant,
office, single-user net lease properties and commercial real
estate.
B.
Concurrently with the execution of this
Agreement, Client acquired, through its subsidiaries and
pursuant to that certain Agreement and Plan of Merger, dated as
of the 14th day of August, 2007 (the “Merger
Agreement”), by and among Client, IWEST Acquisition 1,
Inc., IWEST Acquisition 2, Inc., IWEST Acquisition 3, Inc.,
IWEST Acquisition 4, Inc., Inland Western Management Corp.
(“Western”), Inland Southwest Management Corp.
(“Southwest”), Inland Northwest Management Corp.
(“Northwest”), Inland Western Retail Real Estate
Advisory Services, Inc. (“Advisor”), Inland Real
Estate Investment Corporation, and IWest Merger Agent, LLC, as
agent for the stockholders.
C.
Service Provider and certain of its employees
have, prior to the consummation of the transactions contemplated
by the Merger Agreement (collectively, the
“Mergers”), provided to the Client, the services
described and set forth on Exhibit A attached hereto and
made a part hereof (collectively, the
“Services”).
D.
Client is desirous of retaining Service Provider
to provide Services for a period of time from and after the
consummation of the transactions contemplated by the Merger
Agreement.
E.
Service Provider is desirous of providing the
Services to Client for a period of time from and after the
consummation of the transactions contemplated by the Merger
Agreement.
F.
Client and Service Provider wish to set forth
their understanding and agreement with respect to the Services,
the compensation to be paid to Service Provider by Client and
other matters relating thereto, all as hereinafter provided.
NOW, THEREFORE , in consideration of the
mutual covenants herein, the compensation to be paid by Client
to Service Provider as herein provided, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1.
Incorporation of Recitals .
The foregoing Recitals are, by this reference,
incorporated into the body of this Agreement as if the same had
been set forth herein in their entirety.
2.
Performance of Services with respect to
Subject Properties . Upon request of the Client,
Service Provider agrees to provide Client with the Services in
connection with evaluating and acquiring any Subject Property
(as defined in the Property Acquisition Agreement, dated
February 22, 2005, between Client, Service Provider and Inland
Western Retail Real Estate Advisory Services, Inc. (the
“Advisor”), which agreement is referred to as the
“Property Acquisition Agreement”) and any other
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property the Client desires to acquire (Subject
Properties and any other property with respect to which Client
requests Service Provider to provide Services shall hereinafter
collectively be referred to as a “Property” or
“Properties”). Notwithstanding the foregoing or
anything else contained in this Agreement, Service Provider shall
be excused from providing the Services in connection with any
specific Property if:
(A)
Performing the Service would violate applicable
law or the rules of any regulatory body having jurisdiction over
the Services;
(B)
Performing the Service would result in the
commission of fraud upon any person or party;
(C)
Service Provider has a reasonable basis, upon
the advice of counsel, that performing the Service could subject
the Service Provider to liability or material damages in any
civil litigation; or
(D)
Service Provider does not have a sufficient
number of qualified personnel to provide the Services, provided
that Service Provider shall use commercially reasonable efforts
to eliminate and minimize the duration of any personnel
shortage.
3.
Term . The initial term (
the “Initial Term”) of this Agreement shall commence
as of the date hereof (the “Commencement Date”),
and, unless terminated earlier as provided in Section 4
below, automatically shall expire and terminate, unless renewed,
on the first anniversary of the Commencement Date;
provided, that this Agreement shall be automatically renewed for
an additional one year period (“Renewal Term”)
unless either party provides notice of its intent not to renew
at least 90 days prior to the expiration of the Initial Term or
Renewal Term, as the case may be.
4.
Termination .
(a)
By Client .
(i)
For Cause . Client may terminate
this Agreement upon material default by Service Provider
hereunder upon ten days prior notice to Service Provider;
provided, however, that prior to exercising its rights under
this Section 4(a)(i) , Client shall notify Service
Provider of the alleged default, and Service Provider shall have
30 days after receipt of such notice to cure the default to
Client’s reasonable satisfaction. Upon terminating
in accordance with this Section 4(a)(i) , Client shall
pay Service Provider all amounts due Service Provider under
Section 7 hereof.
(ii)
Without Cause . Client may
terminate this Agreement, without cause, by providing not less
than 60 days prior notice (which notice shall specifically set
forth the effective date of termination) to the Service Provider
of such election to so terminate. Upon terminating in
accordance with this Section 4(a)(i) , Client shall, pay
Service Provider all amounts due Service Provider under
Section 7 hereof.
(b)
By Service Provider
(i)
For Cause . Service Provider may
terminate this Agreement, upon the occurrence of any of the
following events:
a.
Client fails, in the absence of a bona fide
dispute with respect to such payment, to make payment for
Services on its due date, provided however, that Client may cure
such breach up to three times per calendar year by making
payment within 10 days of Client’s receipt of notice
that it failed to make such
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payment when due;
b.
Client requests that Service Provider violate
any applicable law or the rules of any regulatory body having
jurisdiction (and Client does not promptly revoke such request
upon Service Provider’s refusal to comply);
c.
Client requests that Service Provider take any
action which would result in the commission of a fraud upon any
person or party (and Client does not promptly revoke such
request upon Service Provider’s refusal to comply);
d.
Client requests that Service Provider take any
action that, upon the advice of counsel to Service Provider,
could subject the Service Provider to liability or material
damages in a civil litigation (and Client does not promptly
revoke such request upon Service Provider’s refusal to
comply); or
e.
A Change of Control (hereinafter defined).
(ii)
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 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 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 persons or entities listed in clauses (i) through (v) above
(all of the persons and 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 Client of any plan or proposal for the liquidation or
dissolution of Client;
(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 Client representing more
than 25% of the aggregate ordinary voting power represented by
the issued and outstanding common shares of Client; or
(d)
Following any change in the composition of the
board of directors of Client, a majority of the board of
directors of Client are not a combination of either
(i) members of the board of directors of Client as of the
date hereof, or (ii) members of the board of directors of
Client whose nomination for election or election to the board of
directors of Client has been recommended, approved or ratified
by at least 80% of the board of directors of Client then in
office who were either members of the board of directors of
Client as of the date hereof or whose election as a member of
the board of directors of Client was previously so approved
pursuant to this clause (ii)
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5.
Independent Contractor .
Service Provider’s status shall be that of
an independent contractor, and not that of an agent or em
