EXHIBIT 10.1
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into as of the ___day of _______,
2000, by and among INLAND RETAIL REAL ESTATE TRUST, INC., a Maryland corporation
(the "Company"), INLAND SECURITIES CORPORATION, an Illinois Corporation (the
"Dealer Manager"), and LASALLE BANK NATIONAL ASSOCIATION, CHICAGO, ILLINOIS (the
"Escrow Agent").
1. The Company does hereby open this escrow and Escrow Agent's sole
concern and duties shall be as specifically set forth herein:
1.1 From time to time during the course of this escrow, in
connection with the Company's offering (the "Offering") of up to
50,000,000 shares of common stock on a "best efforts" basis (the
"Shares") (exclusive of Shares offered and sold pursuant to the
Company's distribution reinvestment program), Escrow Agent will receive
from subscribers deposits to be held in escrow in accordance with the
terms hereof. All such funds received by Escrow Agent shall be placed
into an interest-bearing account entitled "Inland Retail Real Estate
Trust, Inc." (the "Escrow Account").
2. All deposits from each subscriber shall be accompanied by a
subscription agreement, stating among other things, subscriber name, current
address and investment amount.
3. Checks deposited in the Escrow Account from the various subscribers
shall be made payable to "LNB, Escrow Agent for IRRET."
4. All parties understand and are aware that all funds received during
the course of the escrow and deposited in the Escrow Account must clear the
normal banking channels prior to the release of any funds.
5. The Company understands that it is not entitled to any funds
received into escrow in the event of cancellation of the Offering and in such
event, deposits shall be returned to the subscribers.
6. Subscribers named in any subscription for Shares clearly understand
that this is an impound escrow between the Company, the Dealer Manager and the
Escrow Agent and that they are not a party to this escrow.
7. All documents, including any instrument necessary for the
negotiation or other transfer of escrow assets, deposited simultaneously with
the execution of this Agreement are approved by the Company, and the Escrow
Agent shall not be obligated to inquire as to the form, manner of execution or
validity of these documents or any document hereafter deposited pursuant to the
provisions hereof, nor shall the Escrow Agent be obligated to inquire as to the
identity, authority or rights of the persons executing the same. The Escrow
Agent shall be liable under this Agreement only for its failure to exercise due
care in the performance of its duties expressly set forth in this Agreement. The
Escrow Agent shall have a lien on all securities, monies and documents deposited
in this escrow by each subscriber to secure Escrow Agent's reasonable
compensation and expenses and for judgments, attorneys' fees and other
liabilities which the Escrow Agent may incur or sustain by reason of this
escrow, and the undersigned agrees to pay to Escrow Agent, upon demand, amounts
to satisfy all such liabilities, fees and expenses. In case of conflicting
demands
upon it, the Escrow Agent may withhold performance of this escrow until such
time as the conflicting demands shall have been withdrawn or the rights of the
respective parties shall have been settled by court adjudication, arbitration,
joint order or otherwise.
8. Until the termination of the Offering, the Company shall notify the
Escrow Agent of the Company's acceptance or rejection of each subscription
agreement as promptly as practicable, but in any event within ten (10) days of
its receipt, and of any subscription which is rescinded within five (5) days of
such rescission. If a subscription is rejected by the Company, the subscriber's
check and subscription agreement will be returned by the Escrow Agent to the
subscriber, without interest or deduction, as promptly as practicable, but in
any event within ten (10) days after receipt. If a subscription is rescinded,
the Escrow Agent shall return to the subscriber the subscriber's check (or an
equal amount of funds) and subscription agreement, without interest or
deduction, within seven (7) days of being notified by the Company of such
rescission. In the event the check of a subscriber whose subscription has been
rescinded has been negotiated (and if the funds represented thereby have been
disbursed to the Company), the Company shall deposit with the Escrow Agent an
amount of funds equal to the amount necessary to be returned to the subscriber
(or the Escrow Agent may deduct such amount from any funds due to the Company
under this Agreement), along with the subscriber's subscription agreement. The
Escrow Agent shall not be liable for the failure to return a rejected or
rescinded subscription if the Company fails to notify the Escrow Agent of such
rejection of rescission.
9. Commencing with the date paid subscriptions have been received and
accepted for at least 20,000 Shares or $2,000,000 (the "Minimum Offering"),
provided such date is within six months of the initial date of the Company's
prospectus (such initial date of the Company's prospectus being the "Effective
Date"), and ending on the Termination Date (the "Offering Period"), the Escrow
Agent shall (i) disburse to the Company on a weekly basis any funds received by
the Escrow Agent for accepted subscriptions (but not those funds of a subscriber
whose subscription has been rejected or rescinded of which the Escrow Agent has
been notified by the Company, or otherwise in accordance with the Company's
written request; and (ii) invest any funds held in the escrow subject to
paragraph 10 hereof, in such instruments as the Company may direct. Upon
termination of the Offering, which shall occur not later than 12 months after
the Effective Date, provided however that, subject to requalification in certain
states, the Company may extend the Offering Period from time to time, but in no
event more than two years after the Effective Date (the "Termination Date"), all
amounts theretofore undistributed shall be distributed to the Company, and this
escrow shall close and be consummated in its entirety. If subscriptions for at
least the Minimum Offering have not been received, accepted and paid for within
six months of the Effective Date, all funds received will be promptly returned
in full to subscribers, together with their pro rata share of any interest
earned thereon. If such refund is made, Inland Real Estate Investment
Corporation will pay any escrow fees.
10. The funds deposited herein shall be invested in federally insured
bank accounts (E.G., savings accounts), short-term certificates of deposit
issued by a bank, short-term securities issued or guaranteed by the United
States government and any other investments permitted under Rule 15c2-4 of the
Securities Exchange Act of 1934, as amended, at the direction of the Company.
The
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interest on such investments shall, on a monthly basis while subscribers'
deposits remain in escrow and, if all conditions herein are met, when such
deposits are disbursed to the Company, be disbursed by the Escrow Agent to the
Company in accordance with paragraph 9 hereof.
11. The Company agrees to disburse to the Dealer Manager any funds due
to it for the Offering in accordance with the terms and conditions of the Dealer
Manager Agreement dated ____________ between the Company and the Dealer Manager,
provided that the Escrow Agent has disbursed to the Company the funds due to the
Company for the related subscriptions. The Dealer Manager shall assist the
Company in connection with the Company's compliance with this Agreement. The
Dealer Manager shall not have any lien on or security interest in any
securities, monies or documents deposited in this escrow.
12. Any notices which are required or desired to be given hereunder to
the parties hereto shall be in writing and may be given by mailing the same to
the address indicated below (or to such other address as either of the parties
may have theretofore substituted therefor by written notification to the other
party hereto), by registered or certified United States mail, postage prepaid.
For all purposes hereof, any notice so mailed by the Escrow Agent shall be
treated as though served upon the party to whom it was mailed at the time it is
deposited in the United States mail by the Escrow Agent whether or not such
party thereafter actually receives such notice. Notices to the Escrow Agent
shall be in writing and shall not be deemed to be given until actually received
by the Escrow Agent's trust department. Whenever under the terms hereof the time
for giving a notice or performing an act falls upon a Saturday, Sunday or bank
holiday, such time shall be extended to the Escrow Agent's next business day.
13. The Escrow Agent, when acting as the Escrow Agent undertakes to
perform only such duties as are expressly set forth herein and the Escrow Agent
shall not be subject to, nor obliged to recognize, any other agreement between,
or direction or instruction of, the Company even though reference thereto may be
made herein; provided, however, this Agreement may be amended at any time or
times by an instrument in writing signed by the Company, the Dealer Manager and
Escrow Agent. In the event the Escrow Agent becomes involved in or is threatened
with litigation by reason hereof, it is hereby authorized to and may deposit
with the clerk of a court of competent jurisdiction any and all funds held by it
pursuant hereto, and thereupon the Escrow Agent shall stand fully relieved and
discharged of any further duties hereunder.
14. If any property subject hereto is at any time attached, garnished
or levied upon, under any court order, or in case the payment, assignment,
transfer, conveyance or delivery of any such property shall be stayed or
enjoined by any court order, or in any case any order, judgment or decree shall
be made or entered by any court affecting such property, or any part thereof,
then in any of such events, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree, which it is advised by legal counsel of its own choosing is binding upon
it, and if it complies with any such order, writ, judgment or decree, it shall
not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, even though such order, writ, judgment
or decree may be subsequently reversed, modified, annulled, set aside or
vacated.
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15. This Agreement shall be construed, enforced and administered in
accordance with the internal laws, as opposed to the conflicts of laws
provisions, of the State of Illinois.
16. The Escrow Agent shall be entitled to reasonable fees in connection
with this Escrow, which fees shall be payable by the Company.
17. The Escrow Agent may resign by giving five days written notice by
registered or first class mail sent to the undersigned at its address herein set
forth; and, thereafter, shall deliver all remaining deposits in said escrow upon
the written and signed order of the undersigned. If no such notice is received
by the Escrow Agent within 30 days after mailing such notice it is
unconditionally and irrevocably authorized and empowered to send any and all
items deposited hereunder by registered mail to the respective depositors
thereof or, at its sole option, to deliver such deposited items to the
respective depositors.
18. Any notice required to be given hereunder by any of the parties
hereto shall be addressed as follows:
If to the Company:
Inland Retail Real Estate Trust, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, Vice President
If to the Dealer Manager:
Inland Securities Corporation
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx, President
If to Escrow Agent:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
19. The foregoing is subject to the following conditions:
The obligations and duties of the Escrow Agent are confined to those
specifically enumerated in the escrow instructions. The Escrow Agent shall not
be subject to, nor be under any obligation to ascertain or construe the terms
and conditions of any other instrument, whether or not now or hereafter
deposited with or delivered to the Escrow Agent or referred to in the escrow
instructions, nor shall the Escrow Agent be obligated to inquire as to the form,
execution, sufficiency, or validity of any such instrument nor to inquire as to
the identity, authority, or rights of the person or persons executing or
delivering the same.
The Escrow Agent shall not be personally liable for any act which it
may do or omit to do hereunder in good faith and in the exercise of its own best
judgment. Any act done or omitted by
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the Escrow Agent pursuant to the advice of its attorneys shall be deemed
conclusively to have been performed or omitted in good faith by the Escrow
Agent.
If the Escrow Agent should receive or become aware of any conflicting
demands or claims with respect to this Agreement, or the rights of any of the
parties hereto, or any money, property, or instruments deposited herein or
affected hereby, the Escrow Agent shall have the right in its sole discretion,
without liability for interest or damages, to discontinue any or all further
acts on its part until such conflict is resolved to its satisfaction and/or to
commence or defend any action or proceeding for the determination of such
conflict.
The parties to this Agreement agree, jointly and severally, to
indemnify and hold the Escrow Agent harmless from and against all costs,
damages, judgments, attorney's fees (whether such attorneys shall be regularly
retained or specially employed), expenses, obligations and liabilities of every
kind and nature which the Escrow Agent may incur, sustain, or be required to pay
in connection with or arising out of this Agreement, and to pay the Escrow Agent
on demand the amount of all such costs, damages, judgments, attorney's fees,
expenses, obligations, and liabilities. To secure said indemnification and to
satisfy its compensation hereunder, the Escrow Agent is hereby given a first
lien upon and the right to reimburse itself therefor out of, all of the rights,
titles, and interests of each of said parties in all money, property, and
instruments deposited hereunder, except for any money, property or instruments
that relate to money received that must be returned pursuant to the provisions
of the second to last sentence of paragraph 9.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
INLAND RETAIL REAL ESTATE TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
----------------------------
INLAND SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: President
----------------------------
LASALLE BANK NATIONAL ASSOCIATION
CHICAGO, IL
By: /s/ Xxxxxxxx Xxxx
----------------------------
Title: Vice President
----------------------------
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