Exhibit 10.109
MASTER LEASE
ESCROW AGREEMENT
This ESCROW AGREEMENT is made and entered into as of February 4, 2004, by
and among Kimco Peoria Crossing, L.P., an Arizona Limited Partnership
("Seller"), and Inland Western Glendale, L.L.C., a Delaware limited liability
company ("Purchaser"), and CHICAGO TITLE INSURANCE COMPANY (hereinafter referred
to as "Escrow Agent") having as its address - attention: Xxxxx Xxxxxx, Division
II, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, pursuant to that certain Agreement of Sale, dated as of January 9,
2004 (the "Contract"), Purchaser acquired on and as of the date hereof from
Seller a portion of that certain real property known as Peoria Crossing shopping
center located in Peoria, Arizona (the "Property"); and
WHEREAS, Seller has agreed to deposit with Escrow Agent the sum of One
Hundred Sixteen Thousand Three Hundred Twenty-five and no/100 Dollars
($116,325.00) (the "Master Lease Deposit") with respect to Seller's obligation
to pay certain lease commissions, landlord's share of tenant build out, free
tent periods, and rent payable to Purchaser, and other charges, for the Vacant
Space (as defined below), and as itemized on EXHIBIT A attached hereto and made
a part hereof by this reference (the "Deposit Breakdown"); and
WHEREAS, the Master Lease Deposit is hereafter sometimes referred to as the
Escrow Deposit.
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 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. Seller hereby deposits with Escrow Agent, and Escrow Agent hereby
acknowledges receipt of the Master Lease 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 Purchaser, Seller and Escrow Agent, with interest accruing for
the benefit of Seller. The federal taxpayer identification of Seller is as
follows: 00-0000000 and the FEIN of Seller's general partner is 00-0000000.
2. Escrow Agent shall retain the Escrow Deposit in the account, and shall
cause the same to be disbursed therefrom as follows:
(i) Subject to the terms hereof, the Escrow Deposit shall be
held and disbursed by Escrow Agent and used to fund to Purchaser the items set
forth on the Deposit Breakdown.
(ii) For purposes hereof, the term "Vacant Space" shall mean
the 4600 square feet of tenant floor area at the Property that, as of the date
of Closing, for which the Tenant Conditions as hereinafter defined are not
satisfied. For the purposes hereof, the Tenant Conditions for any Property
vacant space gross leasable area are hereby defined as (i) a signed lease, and
(ii) with Tenant either paying full rent and reimbursements or the all
conditions precedent to Rent Commencement Date (as defined in such tenant lease)
shall have occurred or been satisfied and (iii) with all the leasing commissions
and tenant improvement allowances either paid for by Seller or credited to Buyer
and (iv) with a certificate of occupancy or its equivalent occupancy permit
issued by the local governmental authorities, for such tenant's respective
demised premises. Purchaser shall receive a prorated credit from the Master
Lease 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 in accordance with
the terms of Exhibit "A" attached hereto and made a part hereof. However as
noted on Exhibit A such total shall be reduced by Thirty Eight Thousand Dollars
and 00/100 ($38,000). Thereafter, through the date upon which all Tenant
Conditions are satisfied with respect to all or any portion of the Vacant Space,
Escrow Agent shall pay to Purchaser (and Escrow Agent is hereby authorized to
pay to Purchaser without further direction from Seller) from the Master Lease
Deposit, on the first day of each month, the amount of rent and other
reimburseable expenses and other charges (in accordance with the terms of
Exhibit A) which would be due on a monthly basis from tenants of the Vacant
Space as if the Tenant Conditions were satisfied (prorated for any partial
month) (the "Master Lease Deposit Monthly Payment"). The Master Lease Deposit
Monthly Payment shall be made by Escrow Agent to Purchaser until such time as
the respective tenant(s) for the Vacant Space, and Seller, have satisfied the
Tenant Conditions.
Purchaser shall promptly notify Seller and Escrow Agent of the date any tenant
satisfies its Tenant Conditions. The Vacant Space may be subdivided and leased
to more than one tenant in Seller's commercially reasonable discretion. As all
or any portion of the Vacant Space is leased during the 12-month period
following the date of Closing, with the Tenant Conditions having then been
satisfied for such Vacant Space so leased, the balance of the Master Lease
Deposit remaining to the end of the Escrow Term (as hereinafter defined)
(measured as the number of days remaining from the date the Tenant Conditions
for such leased portion of the Vacant Space are met through the last day of the
Escrow Term), attributable to rent, reimbursable expenses, taxes, other charges
and Excess Leasing Costs (defined as those costs stated on Exhibit "A" for such
expense less the actual cost incurred for such expense) for such leased portion
of the Vacant Space, shall be released to Seller upon the joint direction of
Seller and Purchaser. The approval of a disbursement requested by either party
will be deemed approved if the non-requesting party does not object to the
disbursement request within five (5)-business days of receipt of such request.
That portion of the Master Lease Deposit attributable to tenant improvement
allowances, free rent, and broker or consultant fees and commissions
(collectively, the "Leasing Costs"), shall be released for payment (either to
Seller or third parties, as the case may be) upon presentment of the required
lien waivers and related documentation required by any governing lease or
commission agreement. The balance of the Master Lease Deposit attributable to
the Leasing Costs, if any, after satisfaction of the Tenant Conditions with
respect to all or any portion of the Vacant Space within the 12-month period
following the date of Closing, shall be released to Seller in accordance with
the terms of Exhibit A. However, if the Tenant Conditions have not been
satisfied within 12-months of the date of Closing for any portion of the Vacant
Space to achieve the Lease-up Deficiency as defined in 11(B)(d) of the
Agreement of Sale on the first day of the thirteenth month after date of
Closing, all remaining sums then remaining of the Master Lease Deposit
attributable to such Leasing Costs (to the portion of vacant space necessary to
achieve the Lease-up Deficiency) shall be released to Purchaser. Purchaser shall
promptly notify Seller and Escrow Agent of the date any tenant opens for
business as provided under any lease. Any interest on the Escrow Deposit shall
be the property of Seller and in all events shall be disbursed to Seller no
later than the final disbursement made pursuant hereto. The term of this Escrow
Agreement (the "Escrow Term") shall be from the date hereof until the first to
occur of: (a) 12-months from the date of Closing; or (b) such date as Seller
leases sufficient portion of the vacant space to achieve Lease-up of the
Property equal to One Hundred (100%) percent.
(iii) In the event either party objects to the disbursement of
the Escrow Deposit, the Escrow Agent shall have the right, at its option, either
(a) to hold the Escrow Deposit in escrow pending resolution of such objection by
mutual agreement of the parties or by judicial resolution of same or (b) to
disburse the Escrow Deposit into the court having jurisdiction over such
objection. After any disbursement of the Escrow Deposit under the terms of this
Escrow Agreement, Escrow Agent's duties and obligations hereunder shall cease.
In the event of any dispute regarding disbursement of the Escrow Deposit, the
party ultimately receiving the Escrow Deposit after resolution of such dispute
shall be entitled to receive from the other party all the prevailing party's
costs and expenses incurred in connection with the resolution of such dispute
including, without limitation, all court costs and reasonable attorney's fees.
3. 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 Arizona. 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. This Escrow
Agreement constitutes the entire agreement between the parties hereto with
respect to this Escrow, and it supersedes all prior understandings or agreements
of the parties with respect thereto.
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 be personally delivered, sent by Federal Express or other overnight or
same day courier service providing a return receipt, to the following addresses:
If to Purchaser:
Inland Western Glendale, L.L.C.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: G. Xxxxxx Xxxxxxx
with a copy to:
The Inland Group, Inc.
0000 Xxxxxxxxxxx Xxxx\
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxx, General Counsel
Facsimile: (000) 000-0000
with a copy to: Xx. Xxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxxxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Seller: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
3333 New Hyde Park Road
Suite 000
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (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. SELLER'S FORM LEASE AND LEASING PARAMETERS. Purchaser has approved of
Seller's form tenant lease and agrees to reasonably approve of variations
negotiated in good faith by Seller with prospective tenants in the ordinary
course of business. Seller and Purchaser further agree that attached hereto as
Exhibit B, and made a part hereof, is the agreed-to Leasing Parameters
applicable to the lease-up of the Vacant Space. Purchaser shall be obligated to
accept a prospective tenant and its prospective lease so long as the terms of
this paragraph 6 and Exhibit B are adhered-to. Notwithstanding the foregoing, in
the event there is a conflict between an actual lease approved by Purchaser and
the terms of the Leasing Parameters, the actual, approved lease shall control in
regard to Seller's adherence to the Leasing Parameters.
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.
PURCHASER:
INLANDWESTERN GLENDALE, L.L.C.,
a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, general partner
By: /s/ C. Xxxxxx Xxxxxxx
--------------------------------
Name: C. XXXXXX XXXXXXX
-----------------------------
As Its: AUTHORIZED AGENT
---------------------------
SELLER:
KIMCO PEORIA CROSSING, L.P.
an Arizona limited partnership
By:Kimco Peoria 476, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: XXXXXX X. XXXXXXXX
----------------------------
As Its: Executive Vice President
---------------------------
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
-------------------------------------
Xxxxx Xxxxxx, Senior Escrow Officer
EXHIBIT A
Rent per square foot for Vacant Space as set forth on the Rent Roll
for twelve (12) months (Escrow Term) .................................... $ 118,675.00 $ 9,889.50 per month
Reimbursable expenses (CAM, insurance) at $1.75 psf of Vacant Space,
for twelve (12) months .................................................. $ 8,050 $ 670.83 per month
Real Estate Taxes at $2.00 psf of Vacant Space, for twelve (12) months .. $ 9,200 $ 766.67 per month
Tenant Improvements: Seller agrees to build out Suite _____ to "vanilla box
condition" at its sole cost and expenses upon the earlier of (i) when such
vacant space is leased, and (or) prior to expiration of the Escrow Term (the
"Seller's Work"). However the parties have agreed that no funds shall be
escrowed as security for Seller's Work.
Leasing Commissions at $4.00 psf -- total: $ 18,400
-----------
$ 154,325
Seller Vacancy Credit ($ 38,000.00)
To be a credit to Seller and a reduction in amount calculated above as total
escrow
Note: As the Tenant Conditions are met for any part of the Vacant Space, CAM and
real estate tax deposits into the Escrow shall be released to Seller at the rate
of $3.75 psf of Vacant Space as Fixed Rent at the rate psf provided for in the
new space lease for such vacant space for the period (if any) remaining to the
end of the Escrow Term, measured as the number of days remaining from the date
the Tenant Conditions for any part of the Vacant Space are met through the last
day of the Escrow Term. In the event the Tenant Conditions are not met for any
part of the Vacant Space necessary to achieve the Lease-up Deficiency Income
Threshold within the Escrow Term, the amount of Leasing Commissions deposit then
remaining in the Escrow and attributable to such Vacant Space, shall be released
to Purchaser upon the expiration of the Escrow Term.
-EXHIBIT B-
LEASING PARAMETERS
1. The proposed use shall be a use typically found in retail centers of this
type.
2. The proposed use does not violate any exclusions existing in any other
tenant's lease or covenants existing in any other documents of record.
3. The lease is for an original term of not less than 5 years, nor more than
10 years.
4. No concessions shall be provided to the tenant which would be at
Purchaser's expense.
5. All leases shall be prepared substantially in accordance with the small
shop tenant lease form approved by Purchaser (the "SST Lease") during the
Due Diligence Period subject to commercially reasonable variances and
prevailing market parameters.
6. The proposed tenant has retail and/or business and/or management operating
experience including, but not limited to, eighteen months in the type of
business to be operated at the leased premises. In the absence of three
years experience, the prospective tenant must be an approved franchise or a
recognized regional or national franchiser.
7. The proposed tenant and/or lease guarantor has an aggregate net worth of at
least two years of the total aggregate annualized rent, including all
expenses, for any tenant of the leased premises up to 7,000 square feet.
8. Said leases shall average comparable revenue at least 2% increases per year
or 7.5% aggregate increase over the 5 year term over the primary term of
the lease as current space leases.
9. The tenant's lease will not include rent reductions or early termination
clauses of any kind (excluding typical casualty/condemnation provisions and
landlord not reconstructing the demised premises, and as otherwise
described by the SST Lease).
10. In addition to tenant's base rent, the leases will include reimbursement
for taxes, insurance and common area maintenance, including either a 10%
administrative charge for CAM or no less than a 4% management fee for all
tenancies or as otherwise described by the SST Lease.
11. Purchaser shall act in a commercially reasonable manner and in good faith
during its review and determination of the credit worthiness of any tenant
and/or guarantor. Also, Purchaser agrees to respond to Seller deliveries of
tenant/guarantor credit information within 5 business days after its
receipt by Purchaser, otherwise said tenant/guarantor credit worthiness
shall be deemed approved by Purchaser.
12. The lease renewals, if any, will not be less than the primary term amounts
without tenant improvements, free rent, or leasing commissions paid for by
Purchaser.
13. No lease shall contain representations or warranties in regard to the
condition of any demised premises, each being delivered in its as-is,
where-is condition, subject to the terms of the SST Lease.
14. Purchaser shall act in a commercially reasonable manner and in good faith
during its review and approval of a proposed lease pursuant to this Master
Lease. Also, Purchaser agrees to respond to Seller deliveries of leases for
approval and/or execution within ten (10) business days after its receipt
by Purchaser, otherwise said lease shall be deemed approved.
If Purchaser fails to execute the lease (after having bad
the opportunity to review same as provided herein) in said time period then same
shall be treated as a completed lease and Seller shall be given credit for
Leasing such vacant space pursuant to the terms contained therein and Tenant
Conditions shall be satisfied.
