Exhibit 10.87
VACANCY ESCROW AGREEMENT
THIS VACANCY ESCROW AGREEMENT ("ESCROW AGREEMENT") is made as of this 5th
day of March, 2004, by and among HERITAGE TOWNE CROSSING, L.P., a Texas limited
partnership (hereinafter referred to as "HTC"); INLAND WESTERN EULESS LIMITED
PARTNERSHIP, an Illinois limited partnership (hereinafter referred to as
"INLAND"); and CHICAGO TITLE INSURANCE COMPANY (hereinafter referred to as
"ESCROW AGENT").
RECITALS:
A. HTC and Inland Real Estate Acquisitions, Inc. previously entered into
that certain agreement dated as of January 8, 2004, as amended (the
"AGREEMENT"), with respect to that certain real property known as Heritage Towne
Crossing Shopping Center located in Euless, Texas (the "PROPERTY"), as legally
described in the Agreement. A copy of the Agreement has been delivered to Escrow
Agent and is incorporated by reference herein. Inland Real Estate Acquisitions,
Inc. subsequently assigned its interest in the Agreement to Inland by Assignment
of Contract effective March 5th, 2004.
B. Pursuant to the terms of the Agreement, HTC has agreed to deposit with
Escrow Agent the sum of Two Hundred Fifty Two Thousand Six Hundred Eighty Four
and no/100 Dollars ($252,684.00) (the "ESCROW DEPOSIT") with respect to HTC's
obligation to pay certain lease commissions and for payment of landlord work for
certain tenant space not leased or fully occupied as of the date hereof (the
"VACANT SPACES"), all as described by this Escrow Agreement.
C. 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 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEPOSIT. HTC hereby deposits with Escrow Agent, and Escrow Agent
hereby acknowledges receipt of the sum of Two Hundred Fifty Two Thousand Six
Hundred Eighty Four and no/100 Dollars ($252,684.00) as the total Escrow Deposit
Escrow Agent hereby agrees to deposit the Escrow Deposit into an interest
bearing account with a bank, money market account, or other depository
reasonably satisfactory to Inland, HTC and Escrow Agent with interest accruing
for the benefit of HTC. The federal taxpayer identification of HTC is as
follows: 00-0000000.
2. DISBURSEMENTS. Escrow Agent shall retain the Escrow Deposit in the
account, and shall cause the same to be disbursed therefrom as follows:
(a) TENANT IMPROVEMENT DEPOSIT. That portion of the Escrow Deposit
identified as the sum of Two Hundred Ten Thousand Five Hundred Seventy and
no/100
Dollars ($210,570.00) is hereby referred to as the "TENANT IMPROVEMENT
DEPOSIT," The Tenant Improvement Deposit is attributable to the Vacant
Spaces in the following amounts:
Suite No. 218 2,210 Sq. Ft. $ 33,150.00
Suite No. 230 l,460 Sq. Ft. $ 21,900.00
Suite No. 234 l,700 Sq. Ft. $ 25,500.00
Suite No. 246 l,360 Sq. Ft. $ 20,400.00
Suite No. 250 2,000 Sq. Ft. $ 30,000.00
Suite No. 266 2,000 Sq. Ft. $ 30,000.00
Suite No. 274 3,308 Sq. Ft. $ 49,620.00
The portion of the Tenant Improvement Deposit attributable to an
individual Vacant Space may be released by Escrow Agent upon (i) the joint
direction of HTC and Inland accompanied by copies of invoices, mechanics
lien waivers, affidavits and sworn owner's and contractors statements in
the amount of each draw request for all labor and materials for which
payment is being requested, properly executed by all contractors,
subcontractors, materialmen and HTC, all in such form and content as
required to release and waive all lien rights under applicable
Texas
mechanic's lien statutes and as required by Chicago Title Insurance Company
("CTIC") to obtain an ALTA Form B Owners Title Insurance Policy waiving all
mechanic's and materialmen's liens, (ii) a later date of any loan policy
issued by CTIC to any lender of Inland, covering the date of disbursements
with all exceptions pertaining to mechanic's and materialmen's liens waived
or insured over to the satisfaction of Inland, (iii) a certificate of
occupancy for the individual Vacant Space, and (iv) an estoppel certificate
from the tenant of the Vacant Space, indicating no punchlist or other
incomplete construction items. Only one (1) disbursement will be made by
the Escrow Agent for each Vacant Space. The portion of the Tenant
Improvement Deposit attributable to a particular Vacant Space may not be
reallocated by HTC to a different Vacant Space. Any portion of the Tenant
Improvement Deposit remaining on the Termination Date shall be released to
Inland.
(b) LEASING COMMISSIONS DEPOSIT. That portion of the Escrow Deposit
identified as the sum of Forty Two Thousand One Hundred Fourteen and no/100
Dollars ($42,114.00) is hereby referred to as the "LEASING COMMISSIONS
DEPOSIT." The Leasing Commissions Deposit is a reserve for
leasing/brokerage commissions attributable to the Vacant Spaces in the
following amounts:
Suite No. 218 2,210 Sq. Ft. $ 33,150.00
Suite No. 230 1,460 Sq. Ft. $ 21,900.00
Suite No. 234 1,700 Sq. Ft. $ 25,500.00
Suite No. 246 1,360 Sq. Ft. $ 20,400.00
Suite No. 250 2,000 Sq. Ft. $ 30,000.00
Suite No. 266 2,000 Sq. Ft. $ 30,000.00
Suite No. 274 3,308 Sq. Ft. $ 49,620.00
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Portions of the Leasing Commissions Deposit attributable to the above
referenced Vacant Spaces shall be released to HTC from the Escrow Deposit
by Escrow Agent upon the joint direction of HTC and Inland accompanied by
signed lien waivers and invoices from the applicable real estate brokers
and when the tenant of such store space has taken possession of same,
opened for business and commenced paying rent on a current basis. The
portion of the Leasing Commissions Deposit attributable to a particular
Vacant Space may not be reallocated by HTC to a different Vacant Space. Any
portion of the Leasing Commissions Deposit remaining on the Termination
Date shall be released to Inland.
(c) INCORPORATION AND RESTATEMENT OF AGREEMENT. All of the terms and
conditions of Paragraph 15 of the Agreement are incorporated herein by reference
and shall survive the close of escrow of the transaction contemplated by the
Agreement. The parties agree that to the extent there are inconsistencies
between the requirements set forth in Paragraph 15 of the Agreement and this
Escrow Agreement, the terms of this Escrow Agreement shall control. Nothing in
this Escrow Agreement shall be deemed to amend the terms of the Agreement with
respect to the amounts that are due to either party AS calculated by the terms
of the Agreement.
3. DISPUTES. In the event either party objects to the disbursement of the
Escrow Deposit as provided above, 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 registry of 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.
4. PERMITTED INVESTMENTS. The Escrow Agent agrees to invest the Escrow
Deposit in Permitted Investments, as hereinafter defined. The Escrow Agent shall
not invest the Escrow Deposit in any investment that would require the Escrow
Agent to pay a penalty for early withdrawal to pay a monthly disbursement.
Interest earned on the Escrow Deposit shall be paid to HTC. For tax purposes,
interest earned on the escrowed funds shall be for the account of HTC. The term
"PERMITTED INVESTMENTS" means:
(i) Government Obligations as hereinafter defined;
(ii) Negotiable or non-negotiable certificates of deposit and
time deposits (including Eurodollar certificates of
deposit), maturing within ninety (90) days from the date
of acquisition, issued by a federally chartered bank
having at least $10 billion in total assets (an "APPROVED
BANK"); and
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(iii) money market funds of Chase Manhattan Bank or Bank of
America, N.A.
The term "GOVERNMENT OBLIGATIONS" means (a) direct
obligations of the United States of America for the
payment of which the full faith and credit of the United
States of America is pledged, or (b) obligations issued by
a person controlled or supervised by and acting as an
instrumentality of the United States of America, the
payment of the principal of, premium, if any, and interest
on which is fully guaranteed as a full faith and credit
obligation of the United States of America (including any
securities described in (a) or (b) above in this sentence
issued or held in book-entry form on the books of the
Department of the Treasury of the United States of
America), which obligations, in either case, arc not
subject to redemption prior to maturity at less than par
by anyone other than the owner.
5. COSTS. The costs of administration of this Escrow Agreement by Escrow
Agent shall be paid by Seller. This Escrow Agreement shall be binding upon and
inure to me 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 Agreement, the terms of the Agreement
shall control in all events.
6. TERMINATION XXXX. The Termination Date of this Escrow Agreement is the
date which is twenty four (24) months from the date hereof.
7. NO WAIVER. No delay or leniency of Inland in requiring strict
performance of the terms and conditions hereof shall constitute a waiver of its
rights hereunder.
8. NO PLEDGE OR ENCUMBRANCE. HTC shall not, pledge, assign or grant any
security interest in the Escrow Deposit nor permit any lien or encumbrance to
attach thereto.
9. NOTICES. All notices, payments, requests, reports, information or
demands which any party hereto may desire or may be required to give to any
other party hereunder, shall be in writing and shall be personally delivered or
sent by telefax (answer back received), or by overnight courier, and sent to the
party at its address appearing below or such other address as any other party
shall hereafter inform the other party hereto by written notice given as
aforesaid:
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If to HTC, to: Heritage Towne Crossing, L.P.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
with a copy to: Heritage Towne Crossing, L.P.
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
If to the Purchaser, to: Inland Western Euless Limited Partnership
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: G. Xxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
With copy to: The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxx, Esq.
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
If to Escrow Agent: Chicago Title Insurance Company
000 X. Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
Except as otherwise specified herein, all notices and other communications shall
be deemed to have been duly given on the first to occur of (i) the date of
delivery if delivered personally, or (ii) on the date of deposit with the
overnight courier if sent by overnight courier or the date of the telefax, if
give by telefax. Any party may change its address for purposes hereof by notice
to the other. All notices hereunder and all documents and instruments delivered
in connection with this transaction or otherwise required hereunder shall be in
the English language. Each party shall be entitled to rely on all communications
which purport to be on behalf of the party and purport to be signed by an
authorized party or the above indicated attorneys. A failure to send the
requisite copies does not invalidate an otherwise properly sent notice to HTC
and/or Inland.
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10. 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.
11. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be
governed by and construed and enforced in accordance with the substantive laws
of the State of Illinois without regard to
Texas conflict of laws principles. If
any term or provision of this Agreement shall be determined to be illegal or
unenforceable, all other terms and provisions hereof shall never the less remain
effective and shall be enforced to the fullest extent permitted by applicable
law, and in lieu such illegal or unenforceable provisions there shall be added
automatically as part of this Agreement a provision as similar in terms to such
invalid, illegal or unenforceable provision as may be possible and be valid,
legal and enforceable.
12. BINDING EFFECT. This Escrow Agreement and all the covenants, promises
and agreements contained herein shall be binding upon and inure to the benefit
of the respective legal representatives, personal representatives, devisees,
heirs, successors and assigns of the HTC and Inland.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR ESCROW AGREEMENT AMONG
HERITAGE TOWNE CROSSING, L.P.,
INLAND WESTERN EULESS LIMITED PARTNERSHIP
AND CHICAGO TITLE INSURANCE COMPANY
INLAND:
INLAND WESTERN EULESS LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Inland Western Euless GP, 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
-----------------------------------
Name: Xxxxx X Xxxxxx
-----------------------------------
Title: Asst Secretary
-----------------------------------
HTC:
HERITAGE TOWNE CROSSING, L.P., a
Texas limited
partnership
By: HTC Development, Inc., a
Texas corporation, its
general partner
By:
-----------------------------------------------
Xxxx X. Xxxxx, Executive Vice President
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
-----------------------------------------------
NAME:
-----------------------------------------------
Title:
-----------------------------------------------
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SIGNATURE PAGE FOR ESCROW AGREEMENT AMONG
HERITAGE TOWNE CROSSING, L.P.,
INLAND WESTERN EULESS LIMITED PARTNERSHIP
AND CHICAGO TITLE INSURANCE COMPANY
INLAND:
INLAND WESTERN EULESS LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Inland Western Euless GP, L.L.C., a Delaware
limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
HTC:
HERITAGE TOWNE CROSSING, L.P., a
Texas limited
partnership
By: HTC Development, Inc., a
Texas corporation, its
general partner
By: /s/ Xxxx X. Xxxxx
-----------------------------------------------
Xxxx X. Xxxxx, Executive Vice President
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
-----------------------------------------------
NAME:
-----------------------------------------------
Title:
-----------------------------------------------
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