EXHIBIT 10.1
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into as of the 6th day of June
2002, by and among INLAND RETAIL REAL ESTATE TRUST, INC., a Maryland corporation
(the "Company"), INLAND SECURITIES CORPORATION, an Illinois Corporation (the
"Dealer Manager"), and LASALLE BANK NATIONAL ASSOCIATION, CHICAGO, ILLINOIS (the
"Escrow Agent").
1. The Company does hereby open this escrow and Escrow Agent's sole
concern and duties shall be as specifically set forth herein:
1.1. From time to time during the course of this escrow, in
connection with the Company's offering (the "Offering") of up to
150,000,000 shares of common stock on a "best efforts" basis (the
"Shares") (exclusive of Shares offered and sold pursuant to the
Company's distribution reinvestment program), Escrow Agent will receive
from subscribers deposits to be held in escrow in accordance with the
terms hereof. All such funds received by Escrow Agent shall be placed
into an account entitled "Inland Retail Real Estate Trust, Inc.
Subscription Account" (the "Escrow Account"), which shall be invested
pursuant to Section 10 hereof.
2. All deposits from each subscriber shall be accompanied by the
subscriber name, social security number, current address and investment amount.
3. Checks deposited in the Escrow Account from the various subscribers
shall be made payable to "LBNA/Escrow Agent for IRRET."
4. All parties understand and are aware that all funds received during
the course of the escrow and deposited in the Escrow Account must clear the
normal banking channels prior to the release of any funds.
5. The Company understands that it is not entitled to any funds
received into escrow in the event of cancellation of the Offering and in such
event, deposits shall be returned to the subscribers.
6. The parties agree that this is an impound escrow between the
Company, the Dealer Manager and the Escrow Agent. The Company and the Dealer
Manager agree that the subscribers who deposit into the "Escrow Account" are not
a party to this escrow.
7. All documents, including any instrument necessary for the
negotiation or other transfer of escrow assets, deposited simultaneously with
the execution of this Agreement are approved by the Company, and the Escrow
Agent shall not be obligated to inquire as to the form, manner of execution or
validity of these documents or any document hereafter deposited pursuant to the
provisions hereof, nor shall the Escrow Agent be obligated to inquire as to the
identity, authority or rights of the persons executing the same. The Escrow
Agent shall be liable
under this Agreement only for its gross negligence or willful misconduct in the
performance of its duties expressly set forth in this Agreement. The Escrow
Agent shall have a lien on all securities, monies and documents deposited in
this escrow by each subscriber to secure Escrow Agent's reasonable compensation
and expenses and for judgments, attorneys' fees and other liabilities which the
Escrow Agent may incur or sustain by reason of this escrow, and the undersigned
agrees to pay to Escrow Agent, upon demand, amounts to satisfy all such
liabilities, fees and expenses. In case of conflicting demands upon it, the
Escrow Agent may withhold performance of this escrow until such time as the
conflicting demands shall have been withdrawn or the rights of the respective
parties shall have been settled by court adjudication, arbitration, joint order
or otherwise.
8. Until the termination of the Offering, the Company shall notify the
Escrow Agent of the Company's acceptance or rejection of each subscription
agreement as promptly as practicable, but in any event within ten (10) days of
its receipt, and of any subscription which is rescinded within five (5) days of
such rescission. If the Escrow Agent receives notice that a subscription is
rejected by the Company, the subscriber's deposit will be returned by the Escrow
Agent to the subscriber, without interest or deduction, as promptly as
practicable, but in any event within ten (10) days after its receipt of notice
from the Company that the subscription has been rejected. If a subscription is
rescinded, the Escrow Agent shall return to the subscriber the subscriber's
deposit, without interest or deduction, within seven (7) days of being notified
by the Company of such rescission. In the event the check of a subscriber whose
subscription has been rescinded has been negotiated (and if the funds
represented thereby have been disbursed to the Company), the Company shall
deposit with the Escrow Agent an amount of funds equal to the amount necessary
to be returned to the subscriber (or the Escrow Agent may deduct such amount
from any funds due to the Company under this Agreement). The Escrow Agent shall
not be liable for the failure to return a rejected or rescinded subscription if
the Company fails to notify the Escrow Agent of the rejection of rescission of
the corresponding subscription agreement.
9. Commencing with the date paid subscriptions have been received and
accepted for Shares of the Company (such initial date of the Company's
prospectus being the "Effective Date"), and ending on the Termination Date (the
"Offering Period"), the Escrow Agent shall (i) disburse to the Company on a
weekly basis any funds received by the Escrow Agent for accepted subscriptions
(but not those funds of a subscriber whose subscription has been rejected or
rescinded of which the Escrow Agent has been notified by the Company, or
otherwise in accordance with the Company's written request; and (ii) invest any
funds held in the escrow subject to paragraph 10 hereof, in such instruments as
the Company may direct. Upon termination of the Offering, which shall occur not
later than 12 months after the Effective Date, provided however that, subject to
requalification in certain states, the Company may extend the Offering Period
from time to time, but in no event more than two years after the Effective Date
(the "Termination Date"), all amounts theretofore undistributed shall be
distributed to the Company, and this escrow shall close and be consummated in
its entirety.
10. The funds deposited herein shall be invested in federally insured
bank accounts (e.g., savings accounts), short-term certificates of deposit
issued by a bank, short-term securities issued or guaranteed by the United
States government and any other investments permitted under Rule 15c2-4 of the
Securities Exchange Act of 1934, as amended, at the direction of the Company.
The interest on such investments shall, on a monthly basis while subscribers'
deposits
2
remain in escrow and, if all conditions herein are met, when such deposits are
disbursed to the Company, be disbursed by the Escrow Agent to the Company in
accordance with paragraph 9 hereof.
11. The Company agrees to disburse to the Dealer Manager any funds due
to it for the Offering in accordance with the terms and conditions of the Dealer
Manager Agreement dated June 6, 2002 between the Company and the Dealer
Manager, provided that the Escrow Agent has disbursed to the Company the funds
due to the Company for the related subscriptions. The Dealer Manager shall
assist the Company in connection with the Company's compliance with this
Agreement. The Dealer Manager shall not have any lien on or security interest in
any securities, monies or documents deposited in this escrow.
12. Any notices which are required or desired to be given hereunder to
the parties hereto shall be in writing and may be given by mailing the same to
the address indicated below (or to such other address as either of the parties
may have theretofore substituted therefor by written notification to the other
party hereto), by registered or certified United States mail, postage prepaid.
For all purposes hereof, any notice so mailed by the Escrow Agent shall be
treated as though served upon the party to whom it was mailed at the time it is
deposited in the United States mail by the Escrow Agent whether or not such
party thereafter actually receives such notice. Notices to the Escrow Agent
shall be in writing and shall not be deemed to be given until actually received
by the Escrow Agent's corporate trust department. Whenever under the terms
hereof the time for giving a notice or performing an act falls upon a Saturday,
Sunday or bank holiday, such time shall be extended to the Escrow Agent's next
business day.
13. The Escrow Agent, when acting as the Escrow Agent undertakes to
perform only such duties as are expressly set forth herein and the Escrow Agent
shall not be subject to, nor obliged to recognize, any other agreement between,
or direction or instruction of, the Company even though reference thereto may be
made herein; provided, however, this Agreement may be amended at any time or
times by an instrument in writing signed by the Company, the Dealer Manager and
Escrow Agent. In the event the Escrow Agent becomes involved in or is threatened
with litigation by reason hereof, it is hereby authorized to and may deposit
with the clerk of a court of competent jurisdiction any and all funds held by it
pursuant hereto, and thereupon the Escrow Agent shall stand fully relieved and
discharged of any further duties hereunder.
14. If any property subject hereto is at any time attached, garnished
or levied upon, under any court order, or in case the payment, assignment,
transfer, conveyance or delivery of any such property shall be stayed or
enjoined by any court order, or in any case any order, judgment or decree shall
be made or entered by any court affecting such property, or any part thereof,
then in any of such events, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree, which it is advised by legal counsel of its own choosing is binding upon
it, and if it complies with any such order, writ, judgment or decree, it shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, even though such order, writ, judgment
or decree may be subsequently reversed, modified, annulled, set aside or
vacated.
15. This Agreement shall be construed, enforced and administered in
accordance with the internal laws, as opposed to the conflicts of laws
provisions, of the State of Illinois.
3
16. In consideration for its services as Escrow Agent, the Escrow Agent
shall be entitled to receive compensation and reasonable costs and expenses in
connection with this Escrow as set forth in Exhibit A hereto, which fees, costs
and expenses shall be payable by the Company.
17. The Escrow Agent may resign at any time upon giving at least thirty
(30) days prior written notice to the Company; provided, however, that no such
resignation shall become effective until the appointment of a successor escrow
agent which shall be accomplished as follows: The Company shall use its best
efforts to select a successor escrow agent within thirty (30) days after
receiving such notice. If the Company fails to appoint a successor escrow agent
within such time, the Escrow Agent shall have the right to appoint a successor
escrow agent. The successor escrow agent shall execute and deliver an instrument
accepting such appointment and it shall, without further acts, be vested with
all the estates, properties, rights, powers, and duties of the predecessor
escrow agent as if originally named as escrow agent. Upon delivery of such
instrument, the Escrow Agent shall be discharged from any further duties and
liability under this Agreement. The Escrow Agent shall be paid any outstanding
fees and expenses prior to transferring assets to a successor escrow agent.
18. Any notice required to be given hereunder by any of the parties
hereto shall be addressed as follows:
If to the Company:
Inland Retail Real Estate Trust, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Dealer Manager:
Inland Securities Corporation
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Escrow Agent:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx XxXxxxxx, Corporate Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4
19. The foregoing is subject to the following conditions:
The obligations and duties of the Escrow Agent are confined to those
specifically enumerated in the escrow instructions. The Escrow Agent shall not
be subject to, nor be under any obligation to ascertain or construe the terms
and conditions of any other instrument, whether or not now or hereafter
deposited with or delivered to the Escrow Agent or referred to in the escrow
instructions, nor shall the Escrow Agent be obligated to inquire as to the form,
execution, sufficiency, or validity of any such instrument nor to inquire as to
the identity, authority, or rights of the person or persons executing or
delivering the same.
The Escrow Agent shall not be personally liable for any act which it
may do or omit to do hereunder in good faith and in the exercise of its own best
judgment. Any act done or omitted by the Escrow Agent pursuant to the advice of
its attorneys shall be deemed conclusively to have been performed or omitted in
good faith by the Escrow Agent.
If the Escrow Agent should receive or become aware of any conflicting
demands or claims with respect to this Agreement, or the rights of any of the
parties hereto, or any money, property, or instruments deposited herein or
affected hereby, the Escrow Agent shall have the right in its sole discretion,
without liability for interest or damages, to discontinue any or all further
acts on its part until such conflict is resolved to its satisfaction and/or to
commence or defend any action or proceeding for the determination of such
conflict.
Notwithstanding any other provision hereof, in the event of any
dispute, disagreement or legal action relating to or arising in connection with
the escrow, the Escrow Account, or the performance of the Escrow Agent's duties
under this Agreement, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it. The Escrow Agent may hold all
documents and funds and may wait for settlement of any such controversy by final
appropriate legal proceedings, arbitration, or other means as, in the Escrow
Agent's discretion, it may require. In such event, the Escrow Agent will not be
liable for interest or damage. Furthermore, the Escrow Agent may, at its option,
file an action of interpleader requiring the parties to answer and litigate any
claims and rights among themselves. The Escrow Agent is authorized, at its
option, to deposit with the Court in which such interpleader action is filed all
documents and funds held in escrow. The Escrow Agent is further authorized to
withhold from such deposit for its own account an amount sufficient to
compensate itself for all costs, expenses, charges, and reasonable attorneys'
fees incurred by it due to the interpleader action. Upon initiating such action,
the Escrow Agent shall be fully released and discharged of and from all
obligations and liability imposed by the terms of this Agreement.
5
The Company and Dealer Manager agree, jointly and severally, to
indemnify and hold the Escrow Agent, its officers, directors and employees
harmless from and against all costs, damages, judgments, attorney's fees
(whether such attorneys shall be regularly retained or specially employed),
expenses, obligations and liabilities of every kind and nature which the Escrow
Agent may incur, sustain, or be required to pay in connection with or arising
out of this Agreement, and to pay the Escrow Agent on demand the amount of all
such costs, damages, judgments, attorney's fees, expenses, obligations, and
liabilities. To secure said indemnification and to satisfy its compensation
hereunder, the Escrow Agent is hereby given a first lien upon and the right to
reimburse itself therefor out of, all of the rights, titles, and interests of
each of said parties in all money, property, and instruments deposited
hereunder, except for any money, property or instruments that relate to money
received that must be returned pursuant to the provisions of the second to last
sentence of paragraph 9.
6
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
INLAND RETAIL REAL ESTATE TRUST, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: Chairman
-------------------------------
INLAND SECURITIES CORPORATION
By: /s/ Xxxxxx Xxxx Xxxxxx
----------------------------------
Title: President
-------------------------------
LASALLE BANK NATIONAL ASSOCIATION
CHICAGO, IL
By: /s/ Xxxx Xxxxxx
----------------------------------
Title: Vice President
-------------------------------
7
Exhibit A
ESCROW AGENT
SCHEDULE OF FEES
Acceptance Fee: $1,000.00
Quarterly Administration Fee: $3,000.00
THE ACCEPTANCE FEE AND INITIAL QUARTERLY ADMINISTRATION FEE ARE DUE UPON
EXECUTION OF THE ESCROW AGREEMENT.
Any investment transaction not in a money market fund or in the LaSalle Bank
National Association Time Deposit, Open Account ("TDOA") will incur a $100.00
per transaction fee. The parties to the agreement understand and agree that
LaSalle may receive certain revenue in the form of 12b-1 or shareholder
servicing fees on certain mutual fund investments. Such fees are disclosed in
the prospectus for any such fund. These fees are paid to LaSalle directly from
the mutual fund provider and are not fees paid by the parties to the Agreement.
All out-of-pocket expenses will be billed at our cost. Out-of-pocket expenses
include, but are not limited to, professional services (e.g. legal or
accounting), travel expenses, telephone and facsimile transmission costs,
postage (including express mail and overnight delivery charges), and copying
charges.
8
