Exhibit 10.319
ST. LOUIS PLAYSCAPES ESCROW AND GUARANTEE AGREEMENT
This ST. LOUIS PLAYSCAPES ESCROW AND GUARANTEE AGREEMENT is made and
entered into as of the _________ day of August, 2004, by and among Manchester
Xxxxxxx 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.
WITNESSETH
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, Seller has advised Buyer that St. Louis Playscapes ("Playscapes")
desires to relocate from the spaces it leases at the Property; and
WHEREAS, Seller has agreed to deposit with Escrow Agent the sum of Six
Hundred Thirty-Six Thousand Five Hundred Sixty-Three Dollars ($636,563.00) (the
"Escrow Deposit") with respect to Seller's obligation to pay rent and
reimbursable expenses to Buyer in connection with spaces at the Property leased
to Playscapes (the "Playscapes Space"); 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 shall be held in escrow by
Escrow Agent subject to the terms and condition of this Agreement and shall be
disbursed as hereinafter provided. Commencing on the date that Buyer notifies
Escrow Agent that Playscapes has not paid any amounts due pursuant to its lease,
and continuing on the first day of each calendar month thereafter for thirty
(30) months, Buyer shall be entitled to receive from the Escrow Deposit, an
amount equal to one thirtieth (1/30) of the initial balance-of the Escrow
Deposit, which monthly
payment shall continue until the earlier of (x) the date the Escrow Deposit has
been disbursed in full or (y) the date that the Playscapes 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 (the "Lease Up Event").
At such time as the Lease Up Event has occurred and Buyer has received all
requisite payments due hereunder, the balance of the Escrow Deposit, if any,
shall be released to Seller.
3. LEASING. Seller shall market and lease any space vacated by Playscapes
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 Xxxxxxx 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.
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 XXXXXXX LIMITED PARTNERSHIP,
a Missouri limited partnership,
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: V.P.
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ESCROW AGENT: CHICAGO TITLE AND TRUST COMPANY
By:
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