THE DAMAGES RESULTING FROM A BREACH OF THIS AGREEMENT. CONSULTANT HEREBY FURTHER
ACKNOWLEDGES AND AGREES THAT THE RESTRICTIONS HEREIN ARE
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REASONABLE AND NECESSARY FOR THE PROTECTION OF THE BUSINESS AND THE GOODWILL OF
IWEST AND ITS SUBSIDIARIES AND THAT A VIOLATION BY THE CONSULTANT OF ANY SUCH
COVENANT COULD CAUSE IRREPARABLE DAMAGE TO IWEST OR ITS SUBSIDIARIES.
CONSULTANT THEREFORE AGREES THAT ANY BREACH BY HIM OF ANY OF THE COVENANTS OR
PROVISIONS OF ARTICLE IV OF THIS AGREEMENT SHALL ENTITLE IWEST OR ITS
SUBSIDIARIES, IN ADDITION TO ANY OTHER REMEDY AVAILABLE TO THEM UNDER THIS
AGREEMENT, AT LAW OR IN EQUITY, TO A TEMPORARY AND PERMANENT INJUNCTION OR ANY
OTHER APPLICABLE DECREE OF SPECIFIC PERFORMANCE, WITHOUT ANY BOND OR SECURITY
BEING REQUIRED THEREOF, IN ORDER TO ENJOIN SUCH BREACH.
THE PARTIES UNDERSTAND
AND INTEND THAT EACH COVENANT, PROVISION AND RESTRICTION AGREED TO IN THIS
ARTICLE IV SHALL BE CONSTRUED AS SEPARATE AND DIVISIBLE FROM EVERY OTHER
PROVISION AND RESTRICTION AND THAT THE UNENFORCEABILITY OF ANY ONE PROVISION OR
RESTRICTION SHALL NOT LIMIT THE ENFORCEABILITY, IN WHOLE OR IN PART, OF ANY
OTHER PROVISION OR RESTRICTION AND THAT ONE OR MORE OF ALL OF SUCH PROVISIONS OR
RESTRICTIONS MAY BE ENFORCED, IN WHOLE OR IN PART, AS THE CIRCUMSTANCES WARRANT.
ARTICLE V
MISCELLANEOUS
5.1
NOTICES.
ALL NOTICES OR OTHER COMMUNICATIONS REQUIRED OR
PERMITTED HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN OR DELIVERED:
(I) WHEN DELIVERED PERSONALLY OR BY COMMERCIAL MESSENGER; (II) ONE BUSINESS DAY
FOLLOWING DEPOSIT WITH A RECOGNIZED OVERNIGHT COURIER SERVICE, PROVIDED SUCH
DEPOSIT OCCURS PRIOR TO THE DEADLINE IMPOSED BY SUCH SERVICE FOR OVERNIGHT
DELIVERY; (III) WHEN TRANSMITTED, IF SENT BY FACSIMILE COPY, PROVIDED
CONFIRMATION OF RECEIPT IS RECEIVED BY SENDER AND SUCH NOTICE IS SENT BY AN
ADDITIONAL METHOD PROVIDED HEREUNDER, IN EACH CASE ABOVE PROVIDED SUCH
COMMUNICATION IS ADDRESSED TO THE INTENDED RECIPIENT THEREOF AS SET FORTH BELOW:
To Consultant at
2901 Butterfield Road
Oak Brook, Illinois 60523
Facsimile: (630) 218-8033
With a copy to:
Jenner & Block LLP
330 N. Wabash Avenue
Chicago, IL 60611-7603
Attn:
Arnold S. Harrison
Facsimile: (312) 923-2702
To IWEST at:
Inland Western Retail Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn:_____________
Facsimile:_____________
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With a copy to:
Duane Morris LLP
227 West Monroe Street
Suite 3400
Chicago, Illinois 60606
Attn:
David J. Kaufman
Facsimile: (312) 499-6701
Any party may change its address for purposes of this paragraph by giving the
other party written notice of the new address in the manner set forth above.
5.2
ENTIRE AGREEMENT; AMENDMENTS, ETC.
THIS AGREEMENT CONTAINS THE
ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES HERETO, AND SUPERSEDES ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER THEREOF.
NO
MODIFICATION, AMENDMENT, WAIVER OR ALTERATION OF THIS AGREEMENT OR ANY PROVISION
OR TERM HEREOF SHALL IN ANY EVENT BE EFFECTIVE UNLESS THE SAME SHALL BE IN
WRITING, EXECUTED BY BOTH PARTIES HERETO, AND ANY WAIVER SO GIVEN SHALL BE
EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND