Exhibit 10.301
XXXXXX CENTRE ESCROW
This XXXXXX CENTRE ESCROW ("Escrow") is by and between INLAND WESTERN
SPARTANBURG, L.L.C., a Delaware limited liability company ("Inland"), LCW
SPARTANBURG, L.L.C., a South Carolina limited liability company ("LCW"), and
CHICAGO TITLE AND TRUST COMPANY, a Missouri corporation ("CT&T").
RECITALS:
WHEREAS, LCW and Inland Real Estate Acquisition, Inc., ("IREA") entered
into that certain purchase and sale agreement dated November 7, 2003, as amended
by that certain Modification of Purchase Agreement dated March 2, 2004
(collectively the "Contract") for the sale and purchase of the approximately
37,200 net rentable square feet of the Xxxxxx Center Shopping Centre located on
approximately 9.701 acres of land at Xxxxxxxxxx Road and W.O. Xxxxx Road,
Spartanburg, South Carolina known as Phase II (the " Property"); and
WHEREAS, the Contract provides that in the event that any space in Phase II
is not occupied by a tenant currently paying full rent, common area maintenance
("CAM") charges, real estate taxes and insurance (collectively "rent and pass
throughs"), then LCW shall deposit with CT&T an amount equal to the annual rent
and pass throughs for each such space; and
WHEREAS, there are seven (7) spaces in Phase II that require the deposit of
the rent and pass throughs as listed on Exhibit "A" attached hereto and made a
part hereof.
NOW, THEREFORE, for and in consideration of the terms and provisions
contained in the Contract and the mutual agreements and understandings contained
in this Escrow, Inland, LCW and CT&T agree as follows:
1. All of the above recitals are incorporated herein by reference as if
fully restated herein as this paragraph 1.
2. LCW hereby deposits with CT&T the amounts listed on Exhibit "A" for
each of the spaces on Exhibit "A", which amounts represent the rent and pass
throughs for each such space from July 16, 2004 through July 15, 2006.
Commencing on August 10, 2004 and on the tenth (10th) day of each month
thereafter, Inland will report to CT&T the amount of any rent and pass throughs
for the applicable month that Inland receives from each tenant that occupies one
of the spaces listed on Exhibit "A" and on the date that CT&T receives such
report, CT&T shall pay to Inland from this Escrow on a per space basis, the
amount per space listed on Exhibit "A" less any amount that Inland reports it
has received from a tenant occupying such space. Simultaneously with the payment
to Inland each month, CT&T shall also pay to LCW from this Escrow on a per space
basis, the amount that Inland reports it has received from a tenant occupying
the space, less all unpaid costs and expenses of this Escrow which CT&T shall be
entitled to pay itself from the funds to be paid to LCW. If after notifying CT&T
of the receipt of any payments from the tenants of the spaces, Inland receives
any rent and/or pass throughs for the applicable
month, then after receiving payment from CT&T, Inland shall pay to LCW the
lesser of the CT&T payment for the space or the payments received from the
tenant.
When a tenant occupies a space, is paying full rent and pass throughs for
such space, and a final Certificate of Occupancy has been issued for the space,
then LCW and Inland shall notify CT&T in writing ("Full Payment Notice") of such
fact. Upon receipt of the Full Payment Notice, CT&T shall pay to itself from the
remaining funds held in this Escrow for the applicable space all unpaid costs
and expenses of this Escrow and shall pay the balance of such funds for such
space to LCW. CT&T shall be entitled to act upon a Full Payment Notice sent
solely by LCW ten (10) days after receipt thereof provided that with such notice
CT&T receives proof that the Full Payment Notice was delivered to and received
by Inland and the Full Payment Notice is not contested in a writing by Inland
delivered to CT&T before actual pay out by CT&T. The monthly payment of rent and
pass throughs will be made either to Inland or LCW as described above by CT&T
until: (i) all funds originally deposited into this Escrow have been paid out as
described herein, (ii) Inland and LCW mutually direct CT&T to disburse the
funds, or any portion thereof, or (iii) a Full Payment Notice from LCW is not
contested by Inland and it directs full payment of all sums less costs and
expenses held in this Escrow. A sample of the joint written direction
authorizing CT&T to disburse funds is attached hereto and made a part hereof as
Exhibit "B."
In addition to the rent and pass throughs deposited by LCW, LCW shall also
deposit the amount of the $5.00 per square foot per Exhibit "A" space to pay
tenant improvement costs for such spaces and $3.00 per square foot per space to
pay leasing commissions to lease such spaces. In addition, LCW shall deposit the
additional amounts listed on Exhibit "A" for amounts in excess of the aforesaid
deposits which are payable, but not yet due, the tenants therein identified. LCW
is responsible for procuring tenants for such spaces and is responsible for the
costs and expenses of all tenant improvement and the leasing commissions for
such spaces that are incurred or accrued for any lease of an Exhibit "A" space
during the period of two years from date of this Escrow. It is agreed between
LCW, Inland and CT&T that upon the joint written direction of LCW and Inland,
CT&T shall disburse from the funds deposited for tenant improvements and leasing
commissions the amounts directed by LCW and Inland, and to the parties
designated by LCW and Inland, to pay the tenant improvements and leasing
commissions for the spaces listed on Exhibit "A" as they are leased to new
tenants.
3. All funds deposited into this Escrow shall be invested as directed by
Inland and LCW jointly provided that on the tenth day of each month at least one
full month's rent and pass throughs per space is available for disbursement as
described above. The costs and expenses of this Escrow and any investment costs
or fees will be paid by LCW either out of the interest earned on the funds
deposited herein or out of additional funds deposited herein by LCW. It is
agreed between LCW and Inland that interest earned on the original funds
deposited into this Escrow can be used to pay the costs and expenses and
investment charges of this Escrow. All interest earned on the funds originally
deposited into this Escrow shall be assessed to LCW.
4. Except as to deposits of funds for which CT&T has received express
written direction concerning investment or other handling, the parties hereto
agree: (i) that CT&T shall be under no duty to invest or reinvest any deposits
at any time held by it hereunder; and, further, (ii) that CT&T may commingle
such deposits with other deposits or with its own funds in the manner provided
for the administration of funds under Section 2-8 of the Corporate Fiduciary Act
(205 ILCS 620/2-8), and (iii) that CT&T may use any part or all of such funds
for its own benefit without obligation to any party for
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interest or earnings derived thereby, if any; provided, however, nothing herein
shall diminish CT&T's obligation to apply the full amount of the deposits in
accordance with the terms of these escrow instructions.
In the event CT&T is requested to invest deposits hereunder, CT&T is
not to be held responsible for any loss of principal or interest which may be
incurred as a result of making the investments or redeeming said investment for
the purposes of this Escrow.
5. The undersigned hereby authorize and direct CT&T to accept, comply
with and obey any and all writs, orders, judgments or decrees entered or issued
by any court with or without jurisdiction; and in case CT&T obeys or complies
with any such writ, order, judgment or decree of any court, it shall not be
liable to any of the parties hereto or any other person, by reason of such
compliance, notwithstanding any such writ, order, judgment or decree be entered
without jurisdiction or be subsequently reversed, modified, annulled, set aside
or vacated. In case CT&T is made a party defendant to any suit or proceedings
regarding this Escrow, the undersigned, for themselves, their heirs, personal
representatives, successors and assigns, jointly and severally, agree to pay to
CT&T, upon written demand, all reasonable costs, attorney's fees and expenses
incurred with respect thereto. CT&T shall have a lien on the deposit(s) herein
for any and all such reasonable costs, fees and expenses. If said costs, fees
and expenses are not paid, then CT&T shall have the right to reimburse itself
out of said deposit(s) after providing notice thereof to the other parties
hereto.
6. This Escrow is governed by and is to be construed under the laws of
the State of Illinois. This Escrow, amendments or supplemental instructions
hereto, may be executed in counterparts, each of which shall be deemed an
original and all such counterparts together shall constitute one and the same
instrument.
7. In the event of a default hereunder on the part of Inland or LCW, the
other party may institute litigation against the defaulting party and the
prevailing party in such litigation shall be entitled to collect all reasonable
costs and expenses thereof, including, without limitation, all reasonable
attorney's fees and paralegal fees through all appellate proceedings together
with all costs and expenses charged by CT&T as described in this Escrow.
8. All notices from and to any of the parties to this Escrow shall be in
writing and should be served by an overnight courier or express service, such as
Federal Express or UPS, and shall be deemed delivered on the day after deposit
with such special delivery service or may be served upon the parties by
facsimile transmission provided such transmission is completed by 5:00 p.m. on a
business day otherwise such notice shall be deemed served at 9:00 a.m. on next
succeeding business day:
Copy to: LCW Spartanburg, LLC
c/o Art Xxxxx
WRS, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxx Xxxxxxxx 00000
Copy to: Inland Western Spartanburg, L.L.C.
x/x X. Xxx Xxxxx
0-
Xxxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx Trust Inc.,
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to: Xxxxx Xxxxxx
Chicago Title Insurance Company
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
9. As between LCW and Inland only, any conflicts between this Escrow and
the Contract are to be interpreted in favor of the Contract. CT&T is not a party
to the Contract and is not required to refer to nor interpret the Contract in
order to comply with the terms of this Escrow.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, Inland has caused its authorized officer to execute
this Escrow this ______ day of _______________, 2004.
INLAND WESTERN SPARTANBURG, 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
-----------------------------
Name: Xxxxxxx Xxxxxx
Its: Assistant Secretary
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IN WITNESS WHEREOF, LCW has caused its authorized officer to execute this
Escrow this 14th day of July, 2004
LCW Spartanburg, L.L.C.,
a South Carolina limited liability company
By: WRS Inc., its Manager
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Its: XXXXXX X. XXXXX V President
---------------------------------
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IN WITNESS WHEREOF, CT&T has caused its authorized officer to execute this
Escrow this 16th day of July, 2004.
CHICAGO TITLE AND TRUST COMPANY,
a Missouri corporation
By: /s/ Illegible
----------------------------------
ILLEGIBLE
Its: ESCROW ADMINISTRATOR
---------------------------------
Escrow No. 24020066-003
---------------------------
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EXHIBIT "A"
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HOLDBACK CALCULATION
For Vacant Space Agreement
SF Rent CAM/T/I Annual Months Days
-- ---- ------- ------ ----
Italian Pie 3,200 $ 16.50 $ 2.70 $ 61,440 23 $ 117,760.00 16 $ 2,642.58
Vacant Space 1,600 $ 18.00 $ 2.70 $ 33,120 23 $ 63,480.00 16 $ 1,424.52
Vacant Space 2,500 $ 17.00 $ 2.70 $ 49,250 23 $ 94,395.83 16 $ 2,118.28
America's Best 3,000 $ 15.50 $ 2.70 $ 54,600 23 $ 104,650.00 16 $ 2,348.39
Aim Mail 1,600 $ 17.50 $ 2.70 $ 32,320 23 $ 61,946.67 16 $ 1,390.11
Advance Check 1,400 $ 17.50 $ 2.70 $ 28,280 23 $ 54,203.33 16 $ 1,216.34
Vacant Space 4,000 $ 14.00 $ 2.70 $ 66,800 23 $ 128,033.33 16 $ 2,873.12
Rent TI/Leasing TI/Leasing
Holdback Rate Holdback TOTAL HOLDBACK
-------- ---------- ----------
Italian Pie $ 120,402.58 $ 8.00 $ 25,600.00 $ 146,002.58
Vacant Space $ 64,904.52 $ 8.00 $ 12,800.00 $ 77,704.52
Vacant Space $ 96,514.11 $ 8.00 $ 20,000.00 $ 116,514.11
America's Best $ 106,998.39 $ 8.00 $ 24,000.00 $ 130,998.39
Aim Mail $ 63,336.77 $ 8.00 $ 12,800.00 $ 76,136.77
Advance Check $ 55,419.68 $ 8.00 $ 11,200.00 $ 66,619.68
Vacant Space $ 130,906.45 $ 8.00 $ 32,000.00 $ 162,906.45
--------------
$ 776,882.50
For Other Leased Spaces
America's Home $ 20,000.00
America's Best $ 1,500.00
--------------
Holdbacks EXHIBIT
1 OF 1
EXHIBIT B
JOINT WRITTEN DIRECTION
TO: Chicago Title and Trust Company
Attn: _________________________
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
RE: Xxxxxx Centre Escrow No. _______________________
Dear ___________________:
You are hereby authorized and directed to withdraw $_________________from
Escrow No. _________________ and pay same to _________________________________.
INLAND Western Spartanburg, L.L.C., a
Delaware limited liability company
By:
------------------------------------
Its:
-----------------------------------
LCW Spartanburg L.L.C.,
a South Carolina limited liability company
By:
------------------------------------
Its:
-----------------------------------
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HOLDBACK CALCULATION
For Vacant Space Agreement
SF Rent CAM/T/I Annual Months Days
-- ---- ------- ------ ----
Italian Pie 3,200 $ 16.50 $ 2.70 $ 61,440 23 $ 117,760.00 16 $ 2,642.58
Vacant Space 1,600 $ 18.00 $ 2.70 $ 33,120 23 $ 63,480.00 16 $ 1,424.52
Vacant Space 2,500 $ 17.00 $ 2.70 $ 49,250 23 $ 94,395.83 16 $ 2,118.28
America's Best 3,000 $ 15.50 $ 2.70 $ 54,600 23 $ 104,650.00 16 $ 2,348.39
Aim Mail 1,600 $ 17.50 $ 2.70 $ 32,320 23 $ 61,946.67 16 $ 1,390.11
Advance Check 1,400 $ 17.50 $ 2.70 $ 28,280 23 $ 54,203.33 16 $ 1,216.34
Vacant Space 4,000 $ 14.00 $ 2.70 $ 66,800 23 $ 128,033.33 16 $ 2,873.12
Rent TI/Leasing TI/Leasing
Holdback Rate Holdback TOTAL HOLDBACK
-------- ---------- ----------
Italian Pie $ 120,402.58 $ 8.00 $ 25,600.00 $ 146,002.58
Vacant Space $ 64,904.52 $ 8.00 $ 12,800.00 $ 77,704.52
Vacant Space $ 96,514.11 $ 8.00 $ 20,000.00 $ 116,514.11
America's Best $ 106,998.39 $ 8.00 $ 24,000.00 $ 130,998.39
Aim Mail $ 63,336.77 $ 8.00 $ 12,800.00 $ 76,136.77
Advance Check $ 55,419.68 $ 8.00 $ 11,200.00 $ 66,619.68
Vacant Space $ 130,906.45 $ 8.00 $ 32,000.00 $ 162,906.45
--------------
$ 776,882.50
For Other Leased Spaces
America's Home $ 20,000.00
America's Best $ 1,500.00
--------------
Holdbacks EXHIBIT
10 OF 17
HOLDBACK CALCULATION
For Vacant Space Agreement
SF Rent CAM/T/I Annual Months Days
-- ---- ------- ------ ----
Italian Pie 3,200 $ 16.50 $ 2.70 $ 61,440 23 $ 117,760.00 16 $ 2,642.58
Vacant Space 1,600 $ 18.00 $ 2.70 $ 33,120 23 $ 63,480.00 16 $ 1,424.52
Vacant Space 2,500 $ 17.00 $ 2.70 $ 49,250 23 $ 94,395.83 16 $ 2,118.28
America's Best 3,000 $ 15.50 $ 2.70 $ 54,600 23 $ 104,650.00 16 $ 2,348.39
Aim Mail 1,600 $ 17.50 $ 2.70 $ 32,320 23 $ 61,946.67 16 $ 1,390.11
Advance Check 1,400 $ 17.50 $ 2.70 $ 28,280 23 $ 54,203.33 16 $ 1,216.34
Vacant Space 4,000 $ 14.00 $ 2.70 $ 66,800 23 $ 128,033.33 16 $ 2,873.12
Rent TI/Leasing TI/Leasing
Holdback Rate Holdback TOTAL HOLDBACK
-------- ---------- ----------
Italian Pie $ 120,402.58 $ 8.00 $ 25,600.00 $ 146,002.58
Vacant Space $ 64,904.52 $ 8.00 $ 12,800.00 $ 77,704.52
Vacant Space $ 96,514.11 $ 8.00 $ 20,000.00 $ 116,514.11
America's Best $ 106,998.39 $ 8.00 $ 24,000.00 $ 130,998.39
Aim Mail $ 63,336.77 $ 8.00 $ 12,800.00 $ 76,136.77
Advance Check $ 55,419.68 $ 8.00 $ 11,200.00 $ 66,619.68
Vacant Space $ 130,906.45 $ 8.00 $ 32,000.00 $ 162,906.45
--------------
$ 776,882.50
For Other Leased Spaces
America's Home $ 20,000.00
America's Best $ 1,500.00
--------------
Holdbacks EXHIBIT
1 OF 1
EXHIBIT B
JOINT WRITTEN DIRECTION
TO: Chicago Title and Trust Company
Attn: _________________________
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
RE: Xxxxxx Centre Escrow No. _______________________
Dear ___________________:
You are hereby authorized and directed to withdraw $_________________from
Escrow No. _________________ and pay same to _________________________________.
INLAND Western Spartanburg, L.L.C., a
Delaware limited liability company
By:
-------------------------------------
Its:
------------------------------------
LCW Spartanburg L.L.C.,
a South Carolina limited liability company
By:
-------------------------------------
Its:
------------------------------------
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