Exhibit 10.278
FORKS TOWN CENTER CHINA MOON ESCROW
This FORKS TOWN CENTER CHINA MOON ESCROW ("Escrow") is by and between
INLAND WESTERN EASTON FORKS TOWN DST, a Delaware statutory trust ("Inland")
with an address of 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxx. 00000,
FORKS-EASTON, L.L.C., a Delaware limited liability company ("FE") with an
address of c/o Wargo Properties, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxxxx 00000, and CHICAGO TITLE AND TRUST COMPANY, a Missouri
corporation ("CT&T").
RECITALS:
WHEREAS, FE and Inland Real Estate Acquisition, Inc., ("IREA") entered
into that certain purchase and sale contract dated April 8, 2004, as amended by
that certain Amendment To Contract dated May 16, 2004 and that certain Second
Amendment to Contract dated June 3, 2004 (collectively the "Contract") for the
sale and purchase of the approximately 87,600 net rentable square feet of the
Forks Town Center Shopping Center located on approximately 20.249 acres of land
at Xxxx Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxx (the "Property"); and
WHEREAS, IREA has assigned all of its interests in the Contract to
Inland; and
WHEREAS, the parties agree that one tenant of the Property, namely, China
Moon of Forks, Inc., a Pennsylvania limited liability company ("China Moon") has
had a record of non-payment of rents, CAM and taxes that is unacceptable to
Inland and Inland and FE have agreed that in consideration of Inland completing
the purchase of the Property, FE will deposit the sum of Fifty-Five Thousand
Forty No/100 Dollars ($55,040.00) with CT&T in order to provide a source of
funds to pay any monthly rent, CAM, taxes and/or insurance payments not paid by
China Moon and to be forfeited in the event of a default under the China Moon
lease during the term of this escrow; and
NOW, THEREFORE, for and in consideration of the mutual agreements and
understandings contained in this Agreement, Inland, FE 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. FE hereby deposits with CT&T the sum of $55,040.00 to be held by
CT&T pursuant to the terms of this Escrow. If during the term of this Escrow,
China Moon fails to pay any installment of monthly rent of Four Thousand Dollars
($4,000.00) per month and/or its share of common area maintenance expenses
("CAM"), real estate taxes and/or insurance and CT&T receives a written demand
from Inland specifying the amount of the default of payment by China Moon, CT&T
shall immediately disburse from this Escrow the amount specified in the notice
from Inland of the defaulted payment by
China Moon. It is understood and agreed between the parties hereto that the
amounts deposited by FE into this Escrow are meant to ensure and secure the
payment due Inland throughout the term of this Escrow of the monthly rent, CAM,
taxes and insurance payments required to be paid by China Moon pursuant to the
terms of the China Moon lease and that Inland shall be entitled to make a demand
each month during the term of this Escrow for any and all payments that are
required to made pursuant to the China Moon lease and that China Moon fails to
so make. Inland shall provide a copy of each demand made upon CT&T to FE. If at
the end of the term of this Escrow, China Moon shall be in default in any
payment due under its lease, all funds then held by CT&T in this Escrow shall be
forfeited to Inland provided Inland notifies CT&T and FE of such default within
ten (10) business days of the anniversary date of this Escrow. Should Inland
fail to so notify CT&T within such ten (10) business day period, then all funds
held in this Escrow shall be paid immediately to FE. The term of this Escrow
shall be on the last day of the thirteenth (13th) month following the date of
this Escrow.
3. All funds deposited into this Escrow shall be invested as directed
by FE provided that at least Four Thousand Five Hundred Eighty-Six and 67/100
($4,586.67) is available for distribution to Inland each month in the event of a
default in payment by China Moon under the China Moon lease.
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 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
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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 FE,
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:
To: Forks-Easton, LLC
c/o Wargo Properties, Inc.
Attn: Xxx Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
To: Inland Western Easton Forks Town DST
x/x X. Xxx Xxxxx
Xxxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx Trust Inc.,
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
To: Xxxxx Xxxxxx
Chicago Title Insurance Company
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
IN WITNESS WHEREOF, Inland, FE and CT&T have each caused their respective
authorized officers to execute this Escrow this _____ day of _______________,
2004.
INLAND WESTERN EASTON FORKS
TOWN DST, a Delaware statutory trust
By: /s/ [ILLEGIBLE]
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Its: Asst. Secretary
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
ASSIGNOR:
FORKS-EASTON, LLC, a Pennsylvania
limited liability company
By: /s/ [ILLEGIBLE]
---------------------------------
Managing Member of Xxxxxxxx
Trail Associates,
[ILLEGIBLE]
ASSIGNEE:
INLAND WESTERN EASTON FORKS
TOWN DST, a Delaware statutory trust
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
as Signatory Trustee
By:
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Its:
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FORKS-EASTON, L.L.C., a Delaware
limited liability company
By:
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Its:
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CHICAGO TITLE AND TRUST COMPANY,
a Missouri corporation
By:
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Its:
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Escrow No.
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