Exhibit 10.120
ESCROW AGREEMENT
This ESCROW AGREEMENT is made and entered into as of the 22, day of April,
2004, by and among Xxxxxx-Xxxxxx No. 2 Limited Partnership, (hereinafter
referred to as "Seller"), Inland Western Baton Rouge, L.L.C., (hereinafter
referred to as "Buyer"), and Chicago Title and Trust Company, (hereinafter
referred to as "Escrow Agent") having as its address 000 X. Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of
the 4th day of February, 2004, as amended, (collectively, the "Contract"), Buyer
acquired on and as of the date hereof from Seller certain real property commonly
known as Bluebonnet Parc Shopping Center located in Baton Rouge, Louisiana (the
"Property"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of Eight Hundred Eight Thousand Three Hundred
Twenty-Five Dollars ($808,325.00) (the "Escrow Deposit") with respect to
Seller's obligation to pay tenant improvement costs, leasing commissions, rent
and reimbursable expenses to Buyer for the Vacant Space (as such term is
hereinafter defined); and
WHEREAS, Escrow Agent is willing to accept the Escrow Deposit and hold and
disburse same in accordance with the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises hereto, the
covenants and agreements hereinafter made, and for Ten and 00/100 Dollars
($10.00) in hand paid to Escrow Agent, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. ESCROW DEPOSIT. Seller hereby deposits with Escrow Agent, and Escrow
Agent hereby acknowledges receipt of the Escrow Deposit. Escrow Agent hereby
agrees to deposit the Escrow Deposit into an interest bearing account with a
bank, savings and loan institution, money market account, or other depository
reasonably satisfactory to Buyer, Seller and Escrow Agent with interest accruing
for the benefit of Seller. The federal taxpayer identification of Seller is as
follows: 00-0000000.
2. ESCROW DISBURSEMENTS. The Escrow Deposit is comprised of two (2)
components.
(a) $429,525.00 (the "Leasing Deposit") representing minimum rent,
common area maintenance, taxes and insurance payments for an
eighteen (18) month period, computed and allocated as follows:
(i) $213,960.00 with respect to that certain vacant space (the
"Xxxxx Xxxx Space") aggregating 8,000 square feet;
(ii) $215,565.00 representing $20.53 per square foot for a
certain 7,000 square foot vacant space at the property
computed on the basis of 18 months; and,
(b) an amount equal to $378,800.00 (the "TI/Leasing Deposit") for
tenant improvement and leasing commissions costs computed and
allocated as follows:
(i) $126,000.00 representing $18.00 per square foot for the
7,000 square foot vacant space at the Property; and,
(ii) $252,800.00 for tenant improvements and leasing
commissions pursuant to an executed lease and leasing
agreement pertaining to the Xxxxx Xxxx Space which Seller
represents and warrants to be the full amount due in
respect thereof.
Escrow Agent shall retain the Escrow Deposit in the account, and shall
cause the same to be paid in the manner described herein. The Xxxxx Xxxx Space
and the 7,000 square foot vacant space referenced in 2(a)(ii) are hereinafter
collectively referred to as the "Vacant Space"). Buyer shall receive a prorated
credit (calculated in accordance with the allocations described in the
immediately following sentence) from the Escrow Deposit on the date of Closing
(as defined in the Contract) for the rent and reimbursable expenses attributable
to the Vacant Space from the date of Closing through the end of the month in
which Closing occurs.
The Leasing Deposit shall be held in escrow by Chicago Title subject to the
terms and condition of this Agreement and shall be disbursed as hereinafter
provided. Commencing on the day of closing, and continuing on the first day of
each calendar month thereafter for eighteen (18) months from the Closing Date,
Buyer shall be entitled to receive, without further direction from Seller, from
the Leasing Deposit, an amount equal to one eighteenth (1/18) of the initial
balance of the Leasing Deposit, which monthly payment shall continue until the
earlier of (x) the date the Leasing Deposit has been disbursed in full or (y)
with respect to any portion of the Vacant Space, the date that that portion of
the Vacant Space has been leased, the tenant has occupied the space, is open for
business and has commenced regularly scheduled monthly rent payments (with
respect to each Vacant Space the "Lease Up Event"). At such time as the Lease Up
Event has occurred with respect to a particular space and Buyer has received all
requisite payments due hereunder, the balance of the Leasing Deposit, if any,
with respect to such space, shall be released to Seller. Notwithstanding
anything to the contrary contained herein, in the event that a tenant in a
Vacant Space has commenced paying rental under its lease but the other
conditions for the Lease Up Event for such space has not occurred, the date of
such first rental payment shall be known as the "Potential Escrow Release Date".
Upon the occurrence of the earlier of (i) the date of the 3rd rental payment
from such tenant (ii) the Lease Up Event, the balance of the Leasing Deposit, if
any, with respect to such space, shall be released to Seller effective as of the
Potential Escrow Release Date. Buyer and Seller agree to jointly instruct Escrow
Agent upon the happening of a Lease Up Event and/or a Potential Escrow Release
Date.
The TI/Leasing Deposit shall be held in escrow by Chicago Title subject to
the terms and conditions of this Purchase Agreement and shall be disbursed as
hereinafter provided. In the event
that a lease is entered into for any Vacant Space of the Property, then upon the
direction of Buyer, the leasing commissions and tenant improvement costs payable
with respect to such lease shall be disbursed from the TI/Leasing Deposit to the
party entitled to receive payment of the same; provided, however, (x)
disbursements from the TI/Leasing Deposit with respect to tenant improvements
costs shall be limited to the rate of $15.00 per square foot in any one Vacant
Space, unless otherwise approved by Buyer, and (y) disbursements from the
TI/Leasing Deposit with respect to leasing commissions shall be limited to the
rate of $3.00 per square foot in any one Vacant Space, unless otherwise approved
by Buyer. In the event that there are any sums remaining in the TI Leasing
Deposit on the date which is 18 months from the Closing Date, then such sums
shall be remitted to Buyer.
3. ESCROW ADMINISTRATION. The costs of administration of this Escrow
Agreement by Escrow Agent in the sum of Five hundred and 00/100 Dollars
($500.00) shall be shared equally by Seller and Buyer. This Escrow Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, principals, successors and assigns and shall be governed and
construed in accordance with the laws of the State of Illinois. No modification,
amendment or waiver of the terms hereof shall be valid or effective unless in
writing and signed by all of the parties hereto. This Escrow Agreement may be
executed in multiple counterpart originals, each of which shall be deemed to be
and shall constitute an original. If there is any conflict between the terms of
this Escrow Agreement and the terms of the Contract, the terms of this Escrow
Agreement shall control.
4. NOTICES. All notices, requests, consents and other communications
hereunder shall be sent to each of the following parties and be in writing and
shall either be: (i) delivered by facsimile transmission, or (ii) personally
delivered, or (iii) sent by Federal Express or other overnight or same day
courier service providing a return receipt, (and shall be effective when
received, when refused or when the same cannot be delivered, as evidenced on the
return receipt) to the following addresses:
If to Seller: Xxxxx X. Xxxxxx
Xxxxxx-Xxxxxx No. 2 Limited Partnership
0000 XxXxxxxx Xxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Following May 1, 2004:
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
with a copy to: Xxxx Xxxxxxxxx, Esq.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer: Inland Western Baton Rouge, L.L.C.
Attn: Xxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: The Inland Real Estate Group, Inc.
Attn: Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5. COUNTERPARTS. This Escrow Agreement may be executed in counterparts and
shall constitute an agreement binding on all parties notwithstanding that all
parties are not signatories of the original or the same counterpart.
Furthermore, the signatures from one counterpart may be attached to another to
constitute a fully executed original. The Escrow Agreement may be executed by
facsimile.
6. REPORTING. Escrow Agent agrees to deliver to Buyer, on a monthly basis,
a copy of the bank statement of account of the Escrow Deposit. Such monthly
statements shall be delivered to: ______________________________________________
_______________________________.
IN WITNESS WHEREOF, each of the parties hereto has caused this Escrow
Agreement to be signed and delivered as of the day and year first above written.
BUYER:
Inland Western Baton Rouge, L.L.C., a Delaware
limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Asst. Secretary
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SELLER:
Xxxxxx-Xxxxxx No. 2 Limited Partnership, a Texas
limited partnership
By: GSDB No. 2, Inc., a Texas corporation, a
general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
ESCROW AGENT: CHICAGO TITLE AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
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