EXHIBIT 10.318
ESCROW AND GUARANTEE AGREEMENT
This ESCROW AND GUARANTEE AGREEMENT is made and entered into as of the
_______, day of August, 2004, by and among Manchester-Xxxxx Limited Partnership,
a Missouri limited partnership, (hereinafter referred to as "Seller"), Inland
Western Town and Country Manchester, L.L.C., a Delaware limited liability
company, (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.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of
the 13th day of July, 2004 (the "Contract"), Buyer acquired on and as of the
date hereof from Seller certain real property commonly known as Manchester
Xxxxxxx located in Town and Country, Missouri (the "Property"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of Six Hundred Twenty-Five Thousand Six
Hundred and Two Dollars ($625,602.00) (the "Escrow Deposit") with respect to
Seller's obligation to pay rent and reimbursable expenses to Buyer; 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 three (3)
components representing the aggregate of minimum rent, common area maintenance,
taxes and insurance payments for a thirty (30) month period computed in
accordance with leases with Payless Shoes ("Payless"), 3 Day Blinds ("3 Day")
and Hobby Town ("Hobby Town") and allocable as follows:
(a) $169,875 allocable to Payless (the "Payless Deposit");
(b) $319,445 allocable to 3 Day (the "3 Day Deposit"); and
(c) $136,282 allocable to Hobby Town (the "Hobby Town Deposit").
The Payless Deposit, the 3 Day Deposit and the Hobby Town Deposit are
sometimes hereinafter referred to individually as a "Deposit".
The Payless Deposit, 3 Day Deposit and Hobby Town Deposit shall be held in
escrow by Escrow Agent subject to the terms and conditions of this Agreement and
shall be disbursed as hereinafter provided.
(a) If either of Payless, 3 Day or Hobby Town renews its respective
lease for a period of five (5) years or greater on or before the
expiration of the current term thereof at no expense to Buyer,
upon terms (i) for Payless and 3 Day at least as favorable as set
forth in such lease with respect to its renewal option, and (ii)
for Hobby Town, $19.00 per square foot, net, (the "Renewal
Terms"), then the portion of the Total Deposit allocable to such
tenant shall be disbursed to Seller upon the joint direction of
Buyer and Seller delivered to Escrow Agent within ten (10) days of
such renewal.
(b) In the event that either of Payless, 3 Day or Hobby Town does not
renew its lease at such time and upon terms set forth in
sub-paragraph (a) above, then upon notice from Buyer, Escrow Agent
shall (without the requirement of any direction from Seller)
disburse one-thirtieth (1/30) of either or all of the Payless
Deposit, the 3 Day Deposit, and/or the Hobby Town Deposit, as
applicable, on the first day of each month (with the initial
payment being prorated appropriately if made on a day other than
the first day of the month) until the earlier of the date the
applicable Deposit has been disbursed in full or such time as
Buyer notifies Escrow Agent of the occurrence of a Lease Up Event
(hereinafter defined) with respect thereto. "Lease Up Event" is
defined (with respect to the applicable space) as the date that a
replacement tenant reasonably satisfactory to Buyer as to use and
financial condition is in occupancy, open for business and paying
full minimum rent, common area maintenance, taxes and insurance
pursuant to an executed lease with a term of at least five (5)
years upon terms at least as favorable as the Renewal Terms
applicable with respect to such space, all leasing commissions and
tenant improvement costs and expenses have been paid in full by
Seller and a Certificate of Occupancy has been issued. Buyer shall
notify Escrow Agent within five (5) business days of the
occurrence of a Lease Up Event. Upon receipt of such notice, the
Escrow Agent shall disburse the balance of either the Payless
Deposit, the 3 Day Deposit, or the Hobby Town Deposit, as
applicable, to Seller. For the purpose of this sub-paragraph,
"reasonably satisfactory" with respect to "use" shall mean a use
fitting with and not inconsistent with existing tenants at the
Property.
3. LEASING. Seller shall market and lease any space vacated by either of
Payless, 3 Day or Hobby Town at no expense to Buyer. Seller shall pay all
brokerage commissions, tenant build-out
and leasing commissions. Buyer shall execute such leases, provided such leases
are in conformity with the terms of this Agreement or have otherwise been
approved by Buyer, promptly upon Seller's request.
4. 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.
5. 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: Manchester-Xxxxx Limited Partnership
Attention: Xxxxxxx X. Xxxxxxxxx
x/x Xxxxxxxx Xxxxxxxxxx, X.X.X.
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to Xxxxxxxxxxx X. Xxxxxxx
Seller's Counsel: The Xxxxxx Partnership LLP
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: NEBF Investments
Attention: Xxxxxxx X. Xxxxx,
Managing Director of Real Estate
0000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx-Xxxxx, Xxxxxx & Xxxxxxx
Attention: Xxxxx X. Xxxxxx
0000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Buyer: Inland Real Estate Acquisitions, Inc.
Attention: G. Xxxxxx Xxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 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, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to Chicago Title Insurance Company
Escrow Agent: Attention: Xxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6. 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.
7. 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: Buyer at the above address.
(SIGNATURES ON FOLLOWING PAGE)
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 TOWN AND COUNTRY MANCHESTER,
L.L.C., a Delaware limited liability
company
By: Inland Western Retail Real Estate
Trust, Inc., A Maryland corporation,
its sole member
By: /s/ Xxxxx X Xxxxxx
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Name: Xxxxx X Xxxxxx
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Title: Asst Secretary
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SELLER: MANCHESTER-XXXXX LIMITED PARTNERSHIP,
a Delaware limited partnership
By: MANCHESTER XXXXXXX LIMITED PARTNERSHIP,
a Missouri limited partnership,
General Partner
By: MIDLAND TC, INC., a Missouri
corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: XXXXXXX X. XXXXXXXXX
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Title: VICE PRESIDENT
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ESCROW AGENT: CHICAGO TITLE AND TRUST COMPANY
By:
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