Exhibit 10.2.1
AMENDED AND RESTATED
ADVISORY AGREEMENT
This AMENDED AND RESTATED ADVISORY AGREEMENT (this "Agreement") is made as of
December 28, 2004 between Inland Western Retail Real Estate Trust, Inc., a
Maryland corporation (the "Company"), and Inland Western Retail Real Estate
Advisory Services, Inc., an Illinois corporation (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Company and the Advisor have agreed to enter into this Agreement to
cause the Advisor to provide certain services with respect to the Property (as
defined below) on behalf of the Company; and
NOW, THEREFORE, in consideration of the mutual covenants herein set forth, the
parties hereto agree as follows:
1.
DEFINITIONS.
AS USED HEREIN, THE
FOLLOWING TERMS SHALL HAVE THE MEANINGS SET FORTH BELOW:
A)
"ACQUISITION EXPENSES" MEANS EXPENSES RELATED TO THE COMPANY'S
SELECTION, EVALUATION AND ACQUISITION OF, AND INVESTMENT IN, PROPERTIES, WHETHER
OR NOT ACQUIRED OR MADE, INCLUDING BUT NOT LIMITED TO LEGAL FEES AND EXPENSES,
TRAVEL AND COMMUNICATIONS EXPENSES, COST OF APPRAISALS AND SURVEYS,
NONREFUNDABLE OPTION PAYMENTS ON PROPERTY NOT ACQUIRED, ACCOUNTING FEES AND
EXPENSES, COMPUTER USE RELATED EXPENSES, ARCHITECTURAL AND ENGINEERING REPORTS,
ENVIRONMENTAL AND ASBESTOS AUDITS, TITLE INSURANCE AND ESCROW FEES, LOAN FEES OR
POINTS OR ANY FEE OF A SIMILAR NATURE, HOWEVER DESIGNATED, AND PERSONNEL AND
MISCELLANEOUS EXPENSES RELATED TO THE SELECTION AND ACQUISITION OF PROPERTIES.
ACQUISITION EXPENSES WILL ACCRUE AND BE PAID ON PROPERTIES PURCHASED WITH THE
GROSS OFFERING PROCEEDS AND PROCEEDS OF SHARES SOLD VIA THE COMPANY'S
DISTRIBUTION REINVESTMENT PROGRAM, AS WELL AS ON THE ENTIRE PURCHASE PRICE OF
ALL PROPERTIES INCLUDING ANY ACQUISITION FINANCING RELATED THERETO.
B)
"ADVISOR ASSET MANAGEMENT FEE" MEANS AN AMOUNT EQUAL TO 1% OF
THE AVERAGE INVESTED ASSETS.
C)
"AFFILIATE" MEANS, WITH RESPECT TO ANY OTHER PERSON: (I) ANY
PERSON DIRECTLY OR INDIRECTLY OWNING, CONTROLLING OR HOLDING, WITH THE POWER TO
VOTE 10% OR MORE OF THE OUTSTANDING VOTING SECURITIES OF SUCH OTHER PERSON; (II)
ANY PERSON 10% OR MORE OF WHOSE OUTSTANDING VOTING SECURITIES ARE DIRECTLY OR
INDIRECTLY OWNED, CONTROLLED OR HELD, WITH THE POWER TO VOTE, BY SUCH OTHER
PERSON; (III) ANY PERSON DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY OR
UNDER COMMON CONTROL WITH SUCH OTHER PERSON; (IV) ANY EXECUTIVE OFFICER,
DIRECTOR, TRUSTEE OR GENERAL PARTNER OF SUCH OTHER PERSON; AND (V) ANY LEGAL
ENTITY FOR WHICH SUCH PERSON ACTS AS AN EXECUTIVE OFFICER, DIRECTOR, TRUSTEE OR
GENERAL PARTNER.
D)
"AFFILIATED DIRECTORS" MEANS THOSE DIRECTORS OF THE COMPANY WHO
ARE AFFILIATED WITH THE COMPANY OR ITS AFFILIATES.
E)
"ARTICLES OF INCORPORATION" MEANS THE ARTICLES OF INCORPORATION
OF THE COMPANY, AS AMENDED FROM TIME TO TIME.
F)
"AVERAGE INVESTED ASSETS" MEANS, FOR ANY PERIOD, THE AVERAGE
OF THE AGGREGATE BOOK VALUE OF THE ASSETS OF THE COMPANY INVESTED, DIRECTLY OR
INDIRECTLY, IN EQUITY INTERESTS AND IN LOANS SECURED BY REAL ESTATE, BEFORE
RESERVES FOR DEPRECIATION OR BAD DEBTS OR OTHER SIMILAR NONCASH RESERVES,
COMPUTED BY TAKING THE AVERAGE OF SUCH VALUES AT THE END OF EACH MONTH DURING
SUCH PERIOD.
G)
"BOARD OF DIRECTORS" MEANS