Exhibit 10.312
ESCROW AND GUARANTEE AGREEMENT
This ESCROW AND GUARANTEE AGREEMENT is made and entered into as of the ___,
day of August, 2004, by and among Xxxxxxx Xxxxxxxx Partners, L.L.C., a Florida
limited liability company, (hereinafter referred to as "Seller"), Inland Western
Lawrenceville Xxxxxxxx, 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.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of
the 30th day of April, 2004 and accepted as of the 5th day of May, 2004, (the
"Contract"), Buyer acquired on and as of the date hereof from Seller certain
real property commonly known as The Village Shoppes at Xxxxxxxx located in
Lawrenceville, Georgia (the "Property"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of Two Hundred Eighty One Thousand Six Hundred
Fifty Three Dollars ($281,653.00) (the "Escrow Deposit") with respect to
Seller's obligation to pay 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) $239,653.00 (the "Leasing Deposit") representing minimum rent,
common area maintenance, taxes and insurance payments for a twelve
(12) month period, computed on the basis of 8,400 square feet of
vacant space (the "Vacant Space"); and
(b) an amount equal to $42,000.00 (the "TI/Leasing Deposit") for
tenant improvement and leasing commissions costs computed on the
basis of $6.00 per square foot vacant space at the Property.
The Leasing Deposit shall be held in escrow by Chicago Title subject to the
terms and conditions 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 twelve (12) months from the Closing Date
(provided that if Closing occurs on a day other than the first day of the month,
such first payment shall be prorated accordingly), Buyer shall be entitled to
receive from the Leasing Deposit, an amount equal to one twelfth (1/12) 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, all leasing commissions and tenant
improvements costs and expenses incurred in connection therewith have been paid
in full, the tenant has occupied the space, is open for business, has commenced
regularly scheduled monthly rent payments, and a certificate of occupancy has
been issued (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.
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 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 $3.00 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 12 months from the Closing Date, then such
sums shall be remitted to Buyer.
3. LEASING. Seller shall continue to market and lease the vacant
spaces within the Shopping Center; provided that: (i) the rental rate for all
vacant space during the one (1) year term shall not be less, in the
aggregate, than $24.36 per sq. ft. for the initial lease year, with annual
increases of not less than one percent (1%) per annum; (ii) the terms for any
such leases shall not be less than three (3) years; (iii) each lease shall
require the tenant to pay its pro rata share of real estate taxes, insurance
and other operating expenses (initially to be $3.780/sq. ft.); (iv) such
leases shall be on the form currently being utilized by Seller; (v) each
lease shall provide for typical retail uses not in conflict with other
existing leases; and (vi) Seller shall have exercised commercially reasonable
efforts to determine that each tenant is creditworthy consistent with past
practices. Any deviations from the foregoing leasing parameters shall require
the prior written consent of Buyer. During the one (1) year term of this
Guarantee, Seller shall pay all brokerage commissions, tenant built-out and
rental concessions, if any, agreed to during the one (1) year term, even if
due after the expiration of the one (1) year term so long as such payment are
for the initial term of the Lease and ont any renewal or option terms. Buyer
shall promptly 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 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 Contracts, 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: XXXXXXX XXXXXXXX PARTNERS, L.L.C.
c/o Barclay Group Operations, LLC
0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxx, Xxxx & Xxxxxxxxx, P.A.
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer: Inland Western Lawrenceville Xxxxxxxx, 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, 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:
___________________________________________________________________.
(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 LAWRENCEVILLE XXXXXXXX,
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: XXXXXXX XXXXXXXX PARTNERS, LLC, a
Florida limited liability company
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Manager
ESCROW AGENT: CHICAGO TITLE AND TRUST COMPANY
By: /s/ [ILLEGIBLE]
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