Exhibit 10.115
ESCROW AGREEMENT
This ESCROW AGREEMENT is made and entered into as of the 8th day of April,
2004, by and among Paradise Valley Marketplace, L.L.C., a North Carolina
limited liability company; Sooner Land Company, L.L.C., Xxxxxx University
Place, L.L.C., and Sooner Investment Office, LLC, (collectively, the "Seller"),
and Inland Western Phoenix, L.L.C., a Delaware limited liability company,
(hereinafter referred to as "Buyer"), and CHICAGO TITLE INSURANCE COMPANY
(hereinafter referred to as "Escrow Agent") having as its address attention:
Xxxxx Xxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Letter Agreement dated as of the 29th
day of January, 2004, as amended (collectively, this "Contract"), Buyer
acquired on and as of the date hereof from Seller certain real property known
as Paradise Valley Marketplace shopping center located in Phoenix, Arizona (the
"Property"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of Six Hundred Fifty-Four Thousand One
Hundred Forty-Two and 00/100 Dollars ($654,142.00) (the "Escrow Deposit") with
respect to Seller's obligation to pay certain lease commissions, landlord's
share of tenant build out, free rent periods, and rent payable to Buyer, and
other charges, for the Vacant Space (as hereinafter defined), and tenant
improvement allowances, roof warranties and for payment of landlord work under
leases, all as described by this Escrow Agreement; 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 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. Seller hereby deposits with Escrow Agent, and Escrow Agent hereby
acknowledges receipt of the sum of Six Hundred Fifty-Four Thousand One Hundred
Forty-Two and 00/100 Dollars ($654,142.00) as the total 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(s) is as follows: ___-_________.
2. Escrow Agent shall retain the Escrow Deposit in the account, and shall
cause the same to be disbursed therefrom as follows:
A. LEASING DEPOSIT. That portion of the Escrow Deposit identified in
Schedule 2 attached hereto as the sum of One Hundred Sixteen Thousand One
Hundred Ten and no/100 Dollars ($116,110.00) is hereby referred to as the
"Leasing Deposit." The Leasing Deposit is applicable to 3,415 square feet of
tenant space as the property not leased to tenants as of the date of Closing
(as defined in the Contract) (the "Vacant Space"). Seller shall be required to
place the Vacant Space into a "vanilla box" condition at the sole cost and
expense of Seller and disbursements related thereto shall not be permitted
therefor from the Escrow Deposit, except as provided in Section 2(d). Buyer
shall receive a prorated credit from the Leasing Deposit on the date of Closing
(as defined in the Contract) for the rent and reimbursable expenses
attributable to the Vacant Space from the date of Closing through the end of
the month in which Closing occurs. Thereafter, Buyer shall receive (and Escrow
Agent is hereby authorized to pay to Buyer without further direction from
Seller) monthly payments, in advance, for rent and reimbursable expenses, from
the Leasing Deposit, in the sum of 1/12 of the Leasing Deposit (prorated for
any partial months) (the "Leasing Deposit Monthly Payment"). The Leasing
Deposit Monthly Payment shall be made by Escrow Agent to Buyer until such time
as the respective tenants for the Vacant Space have (a) accepted its premises,
and (b) opened for business at the Property to the public, and (c) commenced
paying rent and other charges under any Vacant Space lease, and (d) all leasing
commissions and tenant improvement allowances are fully paid, and (e) delivered
a certificate of occupancy to Buyer for its respective space (collectively, the
"Tenant Conditions"). Buyer shall promptly notify Seller and Escrow Agent of
the date any tenant satisfies the Tenant Conditions. As the Vacant Space is
leased during the 1-year period following the date of Closing, with the Tenant
Conditions having then been satisfied, the balance of the Leasing Deposit is
attributable to such leased Vacant Space shall then be released to Seller upon
the joint direction of Seller and Buyer. The balance of the Leasing Deposit, if
any, remaining on the one-year anniversary following the date of Closing, shall
be released to Buyer.
B. LEASING COMMISSIONS DEPOSIT. That portion of the Escrow Deposit
identified in footnote (8) of the Closing Statement as the sum of Twenty-Four
Thousand One Hundred Twenty-Six and no/100 Dollars ($24,126.00) is hereby
referred to as the "LC Deposit." The LC Deposit is applicable to the Vacant
Space calculated on the basis of the product of Three and no/100 Dollars
($3.00) per square foot of the vacant space plus the 1,677 square feet leased
to Diamond Source, plus the sum of Eight Thousand Eight Hundred Fifty and
no/100 Dollars ($8,850.00) as and for leasing commissions for the Pro Tan space
(collectively, "LC"). The LC shall be released from the Escrow Deposit by
Escrow Agent upon the joint direction of Seller and Buyer accompanied by signed
lien waivers and invoices from the applicable real estate brokers. As each
portion of the Vacant Space is leased to tenants during the 1-year period
following the date of Closing, and the Tenant Conditions are fulfilled as to
such tenant(s), the amount of non-allocated LC Deposit attributable to each of
such space(s) shall then be released to Seller upon the joint direction of
Seller and Buyer. Any non-allocated LC Deposit remaining on the one-year
anniversary following the date of Closing, for any Vacant Space, shall be
released to Buyer.
C. SIGNED LEASES DEPOSIT. That portion of the Escrow Deposit identified
in Schedule 2 as the sum of Two Hundred Twenty-One Thousand Nine Hundred One
and 00/100 Dollars ($221,901.00) is hereby referred to as the "Signed Leases
Deposit." The Signed Leases Deposit is applicable to 6,617 square feet of
tenant space at the property leased to tenants as of the date of Closing which
have not satisfied the Tenant Conditions (collectively, the "Signed Leases
Space"). Seller shall be required to place the Signed Leases Space into a
"vanilla box" condition at the sole cost and expense of Seller and
disbursements related thereto shall not be permitted therefor from the Escrow
Deposit, except as provided in Section 2(d) herein. Buyer shall receive a
prorated credit from the Signed Leases Deposit on the date of Closing for the
rent and reimbursable expenses attributable to the Signed Leases Space from the
date of Closing through the end of the month in which Closing occurs.
Thereafter, Buyer shall receive (and Escrow Agent is hereby authorized to pay
to Buyer without further direction from Seller) monthly payments, in advance,
for rent and reimbursable expenses, from the Signed Leases Deposit, equal to
1/12 of the Signed Leases Deposit (prorated for any partial month) (the "Signed
Leases Payment"). The Signed Leases Payment shall be made by Escrow Agent to
Buyer until such time as the respective tenants for the Signed Leases Space
have satisfied the Tenant Conditions. As the tenants under a Signed Leases
Space lease satisfy the Tenant Conditions during the one-year period following
the date of Closing, the balance of the Signed Leases Deposit attributable to
each such Signed Leases Space shall then be released to Seller upon the joint
direction of Seller and Buyer. The balance of the Signed Leases Deposit, if
any, remaining on the one-year anniversary following the date of Closing, shall
be released to Buyer.
D. UPFITTING WORK DEPOSIT. That portion of the Escrow Deposit identified
in Schedule 3 as the sum of Two Hundred Seventy-Seven Five and no/100 Dollars
($277,005.00) is hereby referred to as the "Upfitting Work Deposit." The
Upfitting Work Deposit is applicable to the "landlord work" described by the
tenant leases for the collective work described in Exhibit A attached hereto
and made a part hereof and for the payments of any unpaid construction
allowance which may be due to Verizon Wireless. Buyer shall be entitled to draw
down the Upfitting Work Deposit to pay for the landlord work and said
construction allowances. The balance of the Upfitting Work Deposit, if any,
after the completion of the landlord work shall be released by Escrow Agent to
Seller upon the joint direction of Seller and Buyer.
E. ROOF WARRANTY. That portion of the Escrow Deposit identified in
footnote (7) of the Closing Statement as the sum of Fifteen Thousand and no/100
Dollars ($15,000.00) is hereby referenced as the Roof Warranty Escrow. The Roof
Warranty Escrow shall be released to Seller upon the joint direction of Seller
and Buyer when satisfactory proof of the purchase by Seller of the roof
warranty in the name of the Buyer is documented. In the event the Roof Warranty
is not purchased by the Seller the Roof Warranty Escrow shall be released to
the Buyer.
3. 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 is escrow pending resolution of
such objection by mutual agreement of the parties or by judicial resolution of
the 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. The costs of administration of this Escrow Agreement by Escrow Agent
(not to exceed $850) 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 as original. If there is any conflict between the terms of this
Escrow Agreement and the terms of the Contract, the terms of the Contract shall
control in all events.
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 be personally delivered, 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 Buyer: Inland Western Phoenix, L.L.C.
c/o Inland Real Estate Acquisitions, Inc.
000X Xxxxxxx Xxx. Xxxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: 000-000-0000 and 000-000-0000
with a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxxxxxxx Xxxx
0xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Facsimile: 630-218-4900 and 000-000-0000
If to Seller Paradise Valley Marketplace, LLC
Collett & Associates
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: 704-335-8654
Copy to: Xxxxxxx Xxxxx, Esq.
Xxxxxxx Xxxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: 000-000-0000
If to Escrowee: Chicago Title Insurance Company
000 Xxxxx Xxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
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: Inland Retail Real Estate Trust,
Inc., 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxx 00, Xxxx Xxxx, Xxxxxxx 00000
(telephone: 000-000-0000; facsimile: 407-688-6543).
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 Phoenix, L.L.C.,
a Delaware limited liability
By: Inland Western Retail Real Estate, Inc.,
a Maryland corporation
By: /s/ [ILLEGIBLE]
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Name:
---------------------------------
As Its: Agent
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SELLER
Paradise Valley Marketplace,
a North Carolina limited liability company
By:
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Name:
---------------------------------
As Its:
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Escrow Agent
Chicago Title Insurance Company
By:
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[LOGO] CHICAGO TITLE AND TRUST COMPANY
000 XXXXX XXXXX, XXXXXXX, XXXXXXXX 00000
Refer to: XXXXXX XXXXXXXX
Phone no.: (000) 000-0000
Fax no.: (000) 000-0000
STRICT JOINT ORDER #2 ESCROW TRUST INSTRUCTIONS
ESCROW TRUST NO.: D2 024034867 DATE: 04/08/04
To: Chicago Title and Trust Company, Escrow Trustee:
CUSTOMER IDENTIFICATION:
Property Address: PARADISE VALLEY MARKETPLACE, PHOENIX, ARIZONA
Project Reference: PARADISE VALLEY MARKETPLACE
Proposed Disbursement Date:
DEPOSITS:
1. THE SUM OF $50,000.00 BY TRANSFER OF FUNDS REPRESENTING: HOLDBACK OF
CLOSING FUNDS.
DELIVERY OF DEPOSITS:
The above-referenced escrow trust deposits ("deposits") are deposited with the
escrow trustee to be delivered by it only upon the receipt of a joint order of
the undersigned or their respective legal representatives or assigns.
In no case shall the above-mentioned deposits be surrendered except upon the
receipt of an order signed by the parties hereto, their respective legal
representatives or assigns, or in obedience to the court order described below.
BILLING INSTRUCTIONS:
Escrow trust fee will be billed as follows:
1/2 TO EACH
The parties acknowledge that beginning after a period of one year from the date
of this agreement, Chicago Title and Trust Company will impose an
administrative maintenance fee (quarterly, semi-annually, or annually)
equivalent to the fee set forth on the Company's then current rate schedule.
This fee may be deducted from the outstanding escrow balance or billed to
N/A
PLEASE NOTE: The escrow trust for these joint order escrow trust instructions
is due and payable within 30 days from the projected disbursement date (which
may be amended by joint written direction of the parties hereto). In the event
no projected disbursement date is ascertainable, said escrow trust fee is to be
billed at acceptance and is due and payable within 30 days from the billing
date. Chicago Title and Trust Company, at its sole discretion, may reduce or
waive the escrow trust fee for these joint order escrow instructions in the
event the funds on deposit herein are transferred to or disbursed in connection
with sale escrow trust instructions or an agency closing transaction
established at Chicago Title.
1
INVESTMENT:
Deposits made pursuant to these instructions may be invested on behalf of any
party or parties hereto; provided that any direction to escrow trustee for such
investment shall be expressed in writing and contain the consent of all parties
to this escrow, and also provided that escrow trustee is in receipt of the
taxpayer's identification number and investment forms as required. Escrow
trustee will, upon request, furnish information concerning its procedures and
fee schedules for investment.
In the event the escrow trustee is requested to invest deposits hereunder,
Chicago Title and Trust Company 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 these escrow trust
instructions.
DIRECTION NOT TO INVEST/RIGHT TO COMMINGLE:
Except as to deposits of funds for which escrow trustee has received express
written direction concerning investment or other handling, the parties hereto
direct the escrow trustee NOT to invest any funds deposited by the parties
under the terms of this escrow and waive any rights which they may have under
Section 2-8 of the Corporate Fiduciary Act (205 ILCS 620/2-8) to receive
interest on funds deposited hereunder. In the absence of an authorized
direction to invest funds, the parties hereto agree that the escrow trustee
shall be under no duty to invest or reinvest any such funds at any time held by
it hereunder; and, further, that escrow trustee may commingle such funds with
other deposits or with its own funds in the manner provided for the
administration of funds under said Section 2-8 and 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 escrow trustee's obligation to apply the full amount of such funds in
accordance with the terms of these escrow instructions.
COMPLIANCE WITH COURT ORDER:
The undersigned authorize and direct the escrow trustee to disregard any and
all notices, warnings or demands given or made by the undersigned (other than
jointly) or by any other person. The said undersigned also hereby authorize and
direct the escrow trustee 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 the said escrow trustee 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 the escrow trustee is made a party defendant to any suit or
proceedings regarding this escrow trust, the undersigned, for themselves, their
heirs, personal representatives, successors, and assigns, jointly and
severally, agree to pay to said escrow trustee, upon written demand, all costs,
attorney's fees, and expenses incurred with respect thereto. The escrow trustee
shall have a lien on the deposit(s) herein for any and all such costs, fees and
expenses. If said costs, fees and expenses are not paid, then the escrow
trustee shall have the right to reimburse itself out of the said deposit(s).
EXECUTION:
These escrow trust instructions are governed by and are to be construed under
the laws of the state of Illinois. The escrow trust instructions, amendments or
supplemental instructions hereto, may be executed in counterparts, each of
which shall be deemed an original and all such counterparts together shall
constitute one and the same instrument.
For For INLAND WESTERN PHOENIX, L.L.C.
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Name: PARADISE VALLEY MARKETPLACE, LLC Name: INLAND WESTERN PHOENIX, L.L.C.
By: Xxx Xxxxxxx, Manager By: Xxxxxxx X. Xxxxxxxxx
Address: 000 X.X. 00xx Address: 0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000 Xxx Xxxxx, XX 00000
Phone: (000) 000-0000 Phone: 000-000-0000
Fax: (000) 000-0000 Fax: 000-000-0000
Signature: /s/ Xxx Xxxxxxx Manager Signature: /s/ Xxxxxxx Xxxxxxxxx
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[ILLEGIBLE]
Accepted: Chicago Title and Trust Company, as Escrow Trustee
By: Date: 4-8-04
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XXXXXX XXXXXXXX
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