EXHIBIT 10.117
POST-CLOSING ESCROW AGREEMENT
THIS POST-CLOSING ESCROW AGREEMENT (this "AGREEMENT") is entered into as of
April 14, 2004, by and between CH REALTY II/BEST, L.P., a Delaware limited
partnership ("SELLER"). INLAND WESTERN LAS VEGAS, L.L.C., a Delaware limited
liability company ("PURCHASER"), and CHICAGO TITLE INSURANCE COMPANY ("ESCROW
AGENT").
RECITALS:
Seller and Inland Real Estate Acquisitions, Inc. have entered into a
Purchase and Sale Agreement (as amended and assigned to Purchaser, the
"CONTRACT") pursuant to which Seller sold and Purchaser has purchased, upon and
subject to the terms and conditions set forth therein, the real property and
improvements situated in Las Vegas, Xxxxx County, Nevada, known generally as
Best on the Boulevard (the "PROPERTY").
Pursuant to the Contract, Seller has agreed to deposit the sum of
$244,368.54 (the "POST-CLOSING DEPOSIT") with Escrow Agent to secure any
liability of Seller to Purchaser as a result of the fact that Hollywood Video
has not as yet executed its lease, taken occupancy and commenced paying rent as
of the Date of Closing as is further described in SECTION 8.7 of the Contract.
The components of the Post-Closing Deposit are described in EXHIBIT "A" attached
hereto and made a part hereof for all purposes.
Pursuant to additional agreements between Purchaser and Seller, Seller has
agreed to further deposit the sum of Ten Thousand and No/100 Dollars
($10,000.00) with the Escrow Agent to satisfy any repair obligations on the
portion of the Property leased to Xxxxxx & Noble relating to cracks in the rear
wall of the receiving area (the "XXXXXX & XXXXX DEPOSIT")
Seller, Purchaser and Escrow Agent have agreed to enter into this Agreement
to set forth the terms and conditions on which the Post-Closing Deposit and the
Xxxxxx & Noble Deposit will be held and disbursed by Escrow Agent.
AGREEMENTS:
NOW, THEREFORE, for and in consideration of these premises and the mutual
covenants and undertakings of the parties herein contained, the receipt and
sufficiency of which consideration is hereby acknowledged and confessed, the
parties agree as follows:
I.
ESTABLISHMENT OF ESCROW
1.01. DESIGNATION OF ESCROW AGENT. Seller and Purchaser hereby designate
Escrow Agent to serve as the escrow agent for the Post-Closing Deposit and the
Xxxxxx & Xxxxx Deposit in accordance with this Agreement.
1.02. DEPOSIT AND INVESTMENT. Contemporaneous with the execution hereof,
Seller has deposited the Post-Closing Deposit and the Xxxxxx & Noble Deposit
with Escrow Agent to be
held and disbursed by Escrow Agent as provided herein. Escrow Agent shall
deposit the Post-Closing Deposit and the Xxxxxx & Xxxxx Deposit in an interest
bearing account at a financial institution the accounts of which are insured by
the Federal Deposit Insurance Corporation. All interest earned on the
Post-Closing Deposit and the Xxxxxx & Noble Deposit shall be added to and become
a part of the Post-Closing Deposit and the Xxxxxx & Xxxxx Deposit and shall be
held and disbursed as part of the Post-Closing Deposit and the Xxxxxx & Noble
Deposit hereunder.
1.03. ESCROW AGENT FEES: WAIVER OF OFFSET. All fees and expenses of the
Escrow Agent in connection with this Agreement and the Post-Closing Deposit and
the Xxxxxx & Xxxxx Deposit, including any fees charged by the financial
institution in which the Post-Closing Deposit and the Xxxxxx & Noble Deposit is
deposited, shall be paid one-half by Seller and one-half by Purchaser. Escrow
Agent shall xxxx Seller and Purchaser from time to time for such fees and
expenses. Escrow Agent shall have no right to offset its fees and expenses
against the Post-Closing Deposit and the Xxxxxx & Noble Deposit and Escrow Agent
hereby irrevocably waives any and all rights Escrow Agent now has or may in the
future have to offset any amounts due to Escrow Agent against the Post-Closing
Deposit and the Xxxxxx & Xxxxx Deposit. Escrow Agent further agrees that it will
not pay or attempt to pay or otherwise satisfy any claims it may have, whether
arising under this Agreement or otherwise, from the Post-Closing Deposit or the
Xxxxxx & Noble Deposit.
II.
DISTRIBUTION OF THE POST-CLOSING DEPOSIT
2.01. WITHDRAWALS FOR TENANT IMPROVEMENT ALLOWANCES AND LEASING
COMMISSION DEPOSITS. That portion of the Escrow Deposit identified as the sum of
$117,639.30 is hereby referred to as the "TI/LC DEPOSIT". The TI/LC Deposit
consists of a $10.00 per square foot tenant allowance component, a component for
negotiated landlord work contribution, and a leasing commission of $10,109.30
payable to ROI Commercial upon execution of the Hollywood Video lease. In no
event may the TI/LC Deposit be applied to rent concessions or free rent. The
TI/LC Deposit is to be disbursed as follows:
(a) That portion of the TI/LC Deposit attributable to leasing
commissions shall be released from the Post-Closing Deposit by Escrow Agent
as provided below upon the joint direction of Seller and Purchaser
accompanied by signed lien waivers and invoices from the applicable real
estate brokers. The commission monies shall be disbursed 50% upon execution
of the Hollywood Video lease and 50% upon the securing of the certificate
of occupancy by Hollywood Video. By its execution hereof, and in
consideration of Seller depositing the sums referenced herein, Purchaser
assumes all liability for commissions payable to ROI Commercial on the
Hollywood Video lease for the amount escrowed for commissions. That portion
of the TI/LC Deposit attributable to tenant improvements or negotiated
landlord work contribution shall be released by the Escrow Agent in a
single draw upon completion of the required work by the tenant and upon the
joint direction of Seller and Purchaser accompanied by the documentation
required by the Hollywood Video lease, and in any event no less
documentation than copies of invoices and mechanic's lien waivers in the
amount of each request shall accompany the draw request. Assuming Hollywood
Video executes its lease, upon the completion of the tenant improvement
work in the Hollywood Video space, any portion
of the TI/LC Deposit not then disbursed shall, upon satisfaction of the
invoices and releases required to be submitted, be released to Seller. In
the event that Hollywood Video does not execute a lease, Purchaser shall be
entitled to use the monies which would otherwise have been disbursed in
this SECTION 2.01(a) for leasing commissions and tenant improvements, but
not otherwise, for a substitute tenant. However, it is the further
agreement of the parties hereto that in no event will either party have any
obligations for sums payable for any tenant improvement allowances,
landlord work contribution or leasing commissions in excess of the monies
referenced in this SECTION 2.01 (a) unless the party in question has
consented in writing. In the event that the space is leased to a party
other than Hollywood Video or is not leased by Purchaser within two (2)
years from the date hereof, any monies deposited into escrow which are not
expended for tenant improvements or leasing commissions shall be refunded
by Escrow Agent to Seller after the securing of the requisite invoices and
releases or the failure by Purchaser to lease the space during the
aforesaid two (2) year period.
(b) That portion of the Post-Closing Deposit identified on
EXHIBIT "A" as $126,729.24 is hereinafter referred to as the "LEASE
DEPOSIT". The Lease Deposit has been calculated based upon the sums which
would be owing for Rent (the term "RENT" shall include monthly rental
payments, CAM and related charges) under the Hollywood Video lease pro
forma. The sums for the month of April, 2004, as otherwise reflected on
EXHIBIT "A" have been pro rated by the parties, and Escrow Agent has
released to Purchaser its pro rata portion of the Rent for the month of
April, 2004. Commencing on May 1, 2004, and continuing thereafter until the
earlier to occur of the passage of 365 days or the commencement of payment
of Rent by Hollywood Video or a substitute tenant, Escrow Agent is hereby
authorized to pay to Purchaser without further direction from Seller
monthly payments in advance for Rent equal to the sum of $10,560.77 per
month. At such time as Purchaser or the applicable tenant notifies Seller
and Escrow Agent that Hollywood Video or a substitute tenant has commenced
paying Rent, any and all Lease Deposit monies remaining in the Post-Closing
Deposit shall be disbursed by Escrow Agent to Seller without the
requirement of further consent from Purchaser.
2.02. XXXXXX & XXXXX DEPOSIT. By agreement of the parties, the monies
constituting the Xxxxxx & Noble Deposit shall be used only for the repair of the
cracks in the rear wall of the receiving area of the Property, and monies for
such repairs shall be released by Escrow Agent in a single draw upon completion
of the work and upon joint direction of Seller and Purchaser, which draw request
must be accompanied by invoices and mechanic's lien waivers in the amount of the
request. In the event that the draw request, as supported by the required
documentation, is for less than $10,000.00, then any and all portions of the
Xxxxxx & Xxxxx Deposit including interest earned thereon shall be upon
satisfaction of the draw request remitted by Escrow Agent to Seller without the
requirement of further consent from Purchaser.
2.03. COOPERATION. Seller and Purchaser agree to cooperate with each
other and with Escrow Agent to facilitate the disbursements and withdrawals
contemplated by this Agreement. Accordingly, upon request of Escrow Agent,
Seller and Purchaser shall each execute such additional instructions and
directions as may reasonably be requested by Escrow Agent consistent with the
terms of this Agreement; PROVIDED THAT such additional instructions shall not
be a condition to any withdrawal of the Post-Closing Deposit or the Xxxxxx &
Noble Deposit unless otherwise provided herein.
2.04. TERMINATION OF AGREEMENT. This Agreement shall terminate, without
any further action on the part of Seller, Purchaser or Escrow Agent, upon
disbursement in full of the Post-Closing Deposit and the Xxxxxx & Xxxxx Deposit
in accordance with this Agreement.
III.
ESCROW AGENT
3.01. ACCEPTANCE OF AGREEMENT. Escrow Agent, by reason of its consent to
and execution of this Agreement, for the fees to be paid hereunder, hereby
agrees to act as escrow agent for the Post-Closing Deposit and the Xxxxxx &
Noble Deposit in accordance with this Agreement and to be bound by this
Agreement in the performance of its duties hereunder. Escrow Agent shall not,
however, assume any responsibility or liability for any transaction between
Seller and Purchaser other than for the performance of its obligations with
respect to the Post-Closing Deposit and the Xxxxxx & Xxxxx Deposit in accordance
with this Agreement. The duties and responsibilities of Escrow Agent shall be
limited to those expressly set forth herein. Escrow Agent shall not be
personally liable for any act taken or omitted hereunder or taken by it in good
faith and in the exercise of its own best judgment.
3.02. LIMITED RESPONSIBILITIES. Escrow Agent shall be under no
responsibility in respect of the Post-Closing Deposit and the Xxxxxx & Noble
Deposit other than faithfully to follow the instructions contained herein.
Escrow Agent may consult with counsel of its own choosing and shall be fully
protected in any action taken in good faith, in accordance with such
consultation. Escrow Agent shall not be required to defend any legal proceedings
that may be instituted unless requested so to do by Seller and Purchaser, and
shall be indemnified by Seller and Purchaser, jointly and severally, to its
satisfaction against the cost and expense of such defense. Escrow Agent shall
have no responsibility for the genuineness or validity of any document or other
item deposited with Escrow Agent and it shall be fully protected in acting in
accordance with written instructions to it hereunder and believed by Escrow
Agent to have been signed by the proper parties. Escrow Agent is not required to
be familiar with the provisions of any other instrument or agreement and shall
not be charged with any responsibility or liability in connection with the
observance or nonobservance by any person having duties or obligations under any
such instrument or agreement.
3.03. INDEMNIFICATION. Except for claims, liabilities, judgments, or
expenses incurred by the parties due to a negligent act, error or omission of
Escrow Agent in the performance of its obligations hereunder, Seller and
Purchaser shall jointly and severally indemnify, protect and save Escrow Agent
harmless from any claims, liabilities, judgments, reasonable attorneys' fees,
and other expenses of any kind and nature that may be incurred by Escrow Agent
by reason of its acceptance of, and its good faith performance under, this
Agreement.
3.04. COMPLIANCE WITH ORDER OF COURT. Escrow Agent is hereby expressly
instructed by Seller and Purchaser to comply with and obey all orders, judgments
or decrees of any court with jurisdiction and in case Escrow Agent complies with
any such order, judgment or decree, Escrow Agent shall not be liable to Seller
or Purchaser or to any other person or entity by reason of
compliance. In complying with the foregoing, if Escrow Agent becomes or is made
a party to any court proceeding which affects this Agreement, Escrow Agent shall
promptly give notice thereof to Seller and Purchaser. To the extent possible in
any such proceeding, Escrow Agent shall interplead Seller and Purchaser. If
Escrow Agent receives any such order from any court, to the extent possible and
consistent with the language of such order, Escrow Agent shall delay compliance
until Seller and Purchaser have had an opportunity to advise Escrow Agent of the
respective position of each of Seller and Purchaser with regard to compliance.
3.05. DISPUTES. If a dispute arises as to the duties of any party under
the terms of this Agreement, Escrow Agent may file suit in interpleader for the
purpose of having the respective rights of Escrow Agent, Seller and Purchaser
adjudicated. Upon filing its complaint in interpleader, Escrow Agent shall be
relieved from all liability under the provisions of this Agreement.
IV.
NOTICES
4.01. METHOD OF NOTICE. All notices required or permitted hereunder shall
be in writing and shall be served on the parties at the addresses set forth
below. Any such notices shall, unless otherwise provided herein, be given or
served (a) by depositing the same in the United States mail, postage paid,
certified and addressed to the party to be notified, with return receipt
requested, (b) by overnight delivery using a nationally recognized overnight
courier, (c) by personal delivery, (d) by facsimile transmission during normal
business hours with a confirmation copy delivered by another method permitted
under this SECTION 4.01, or (e) by electronic mail addressed to the electronic
mail address set forth below for the party to be notified with a confirmation
copy delivered by another method permitted under this SECTION 4.01. Notice given
in accordance herewith for all permitted forms of notice other than by
electronic mail, shall be effective upon the earlier to occur of actual delivery
to the address of the addressee or refusal of receipt by the addressee. Notice
given by electronic mail in accordance herewith shall be effective upon the
entrance of such electronic mail into the information processing system
designated by the recipient's electronic mail address. Except for facsimile and
electronic mail notices as described above, no notice hereunder shall be
effective if sent or delivered by electronic means. In no event shall this
Agreement be altered, amended or modified by electronic mail or electronic
record. A party's address may be changed by written notice to the other party;
provided, however, that no notice of a change of address shall be effective
until actual receipt of such notice. Copies of notices are for informational
purposes only, and a failure to give or receive copies of any notice shall not
be deemed a failure to give notice. Notices given by counsel to the Purchaser
shall be deemed given by Purchaser and notices given by counsel to the Seller
shall be deemed given by Seller.
Purchaser: Inland Western Las Vegas, L.L.C.
c/o Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx
Telephone: 000.000.0000
Fax: 000.000.0000
E-mail: xxx@xxxxxxxxxxx.xxx
with copy to: Inland Western Las Vegas, L.L.C.
c/o Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telephone: 000.000.0000
Fax: 000.000.0000
E-mail: xxxxxxxx@xxxxxxxxxxx.xxx
Seller: CH Realty II/Best, L.P.
c/o Crow Holdings
0000 XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 000000
Attention: Xxx Xxxxxxx
Telephone: 000.000.0000
Facsimile: 214.661.8041
E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx
with copy to: Crow Holdings
0000 XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 000000
Attention: M. Xxxxx Xxxxxx
Telephone: 000.000.0000
Facsimile: 214.661.8041
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
with copy to: Xxxx X. Xxxxx, Esq.
Winstead Xxxxxxxx & Xxxxxx P.C.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: 000.000.0000
Facsimile: 214.745.5390
E-mail: xxxxxx@xxxxxxxx.xxx
Escrow Agent: Chicago Title Insurance Company
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: 000.000.0000
Fax: 000.000.0000
E-mail: xxxxxxxxxxx@xxx.xxx
4.02. CHANGE OF ADDRESS. The parties hereto shall have the right from
time to time to change their respective addresses, and each shall have the right
to specify as its address any other address within the United States of America
by at least five (5) days written notice to the other party.
V.
MISCELLANEOUS
5.01. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties with respect to the Post-Closing Deposit and the Xxxxxx & Xxxxx
Deposit and supersedes and replaces any prior oral or written communications
between Seller and Purchaser with respect to the Post-Closing Deposit and the
Xxxxxx & Noble Deposit. This Agreement may be amended only by written agreement
signed by Seller, Purchaser and Escrow Agent.
5.02. GOVERNING LAW. This Agreement is to be construed in accordance with
the laws of the State of Texas. Dallas County, Texas, shall be the proper place
for venue.
5.03. TIME OF ESSENCE. Time is of the essence with respect to each of the
provisions of this Agreement.
5.04. BINDING EFFECT. This Agreement and the terms and provisions hereof
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Upon not less than five (5) business days
prior notice to Purchaser and Escrow Agent, Seller may assign all or a portion
of its rights in and to this Agreement, the Post-Closing Deposit and the Xxxxxx
& Xxxxx Deposit; PROVIDED THAT any assignee shall be obligated to complete such
investment authorizations, taxpayer identifications, and other documentation as
the Escrow Agent may require as a condition to the effectiveness of such
assignment.
5.05. ATTORNEYS' FEES. The prevailing party in any litigation between the
parties arising under this Agreement shall be entitled to recover reasonable
attorneys' fees.
5.06. HEADINGS. The article headings contained herein are for purpose of
identification only and shall not be considered in construing this Agreement.
5.07. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, all of which together shall constitute a complete instrument. A
copy of this Agreement delivered by telecopy transmission shall have the effect
of an original hereof.
EXECUTED effective the 14th day of April, 2004.
SELLER:
CH REALTY II/BEST, L.P.,
a Delaware limited partnership
By: CH Realty II/Best GP, L.L.C.,
a Delaware limited liability company,
its General Partner
By: Crow Holdings Managers, L.L.C.,
a Texas limited liability company,
its Manager
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxxx
-----------------------------------
Title: Vice President
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
PURCHASER:
INLAND WESTERN LAS VEGAS, L.L.C.,
a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation,
its sole member
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------
Title: Asst. Secretary
--------------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
The Escrow Agent is executing this Escrow Agreement to acknowledge its
receipt of the Post-Closing Deposit and the Xxxxxx & Xxxxx Deposit and its
agreement to hold and disburse same in strict accordance with the terms hereof.
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
--------------------------------
Title: Commercial Escrow Officer
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