Exhibit 10.149
VACANCY ESCROW AGREEMENT
THIS VACANCY ESCROW AGREEMENT (this "Escrow Agreement") is made as of this
___ day of May, 2004, by and among NORTHPOINTE DELAWARE, LLC, a Delaware limited
liability company, and CHULA VISTA PLAZA, LLC, a California limited liability
company (collectively, "Seller"); INLAND WESTERN SPOKANE NORTHPOINTE, L.L.C., a
Delaware limited liability company ("Inland"); and CHICAGO TITLE INSURANCE
COMPANY ("Escrow Agent").
RECITALS:
A. Seller and Inland Real Estate Acquisitions, Inc. previously entered
into an Agreement of Purchase and Sale, dated as of March 23, 2004 (as amended
and reinstated, the "Agreement"), a copy of which 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 and Assumption of Agreement of Purchase and Sale effective May 27,
2004.
B. Capitalized terms used herein and not defined herein shall have the
meanings ascribed to those terms in the Agreement.
C. Pursuant to Section 11.9 of the Agreement, Seller has agreed to
establish an escrow for the Vacant Space (the "Vacant Space Escrow").
D. Seller and Inland have agreed that Seller will deposit with Escrow
Agent the sum of ONE HUNDRED SIXTY THREE THOUSAND FIVE HUNDRED SIXTY-FIVE AND
33/100 DOLLARS ($163,565.33) in the Vacant Space Escrow (the "Vacant Space
Escrowed Funds"), which funds shall be held, administered and disbursed pursuant
to the terms of this Escrow Agreement.
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. (a) Simultaneously with the execution of this Escrow Agreement,
Seller will deposit, in cash, with the Escrow Agent the Vacant Space Escrowed
Funds.
(b) The parties agree that to the extent there are inconsistencies
between the requirements set forth in Section 11.9 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.
2. (a) The Escrow Agent agrees to invest the Vacant Space Escrowed
Funds in Permitted Investments, as hereinafter defined. The Escrow Agent shall
not invest the Vacant Space Escrowed Funds 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 Vacant Space Escrowed Funds shall accrue to
such funds and be paid out in accordance with the Agreement. For tax purposes,
interest earned on the escrowed funds shall be for the account of Seller.
Seller's tax identification numbers are:_________.
(b) The term "Permitted Investments" means:
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(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
(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, are not subject to redemption prior to maturity at
less than par by anyone other than the owner.
3. (a) (i) Not less than ten (10) days before the end of each
calendar month, Inland may submit a written request for payment to the Escrow
Agent and Seller that certifies the amount of funds from the Vacant Space Escrow
that are due to Inland for Vacant Space for the following calendar month (the
"Payment Certification") pursuant to Section 11.9 of the Agreement. A basic
example of the Payment Certification is attached hereto as SCHEDULE A. If Inland
fails to send a Payment Certification for a given month, and Inland was due to
receive a disbursement for such month, then Inland shall not waive its right to
receive such disbursement because it failed to send such Payment Certification,
and Inland shall have the right to add the overdue disbursement to a future
Payment Certification for disbursement.
(ii) Escrow Agent shall disburse to Inland the amount
certified for such payment in the Payment Certification on the first business
day of the following calendar month after Escrow Agent and Seller have received
the Payment Certification, unless Escrow Agent receives a written notice from
Seller objecting to a release from the Vacant Space Escrow of all or part of the
amount certified for payment in the Payment Certification within five (5)
business days after Seller's and Escrow Agent's receipt of the Payment
Certification. Any such objection must set forth the basis on which such
objection is made and the amount to which such objection is made. In such event,
Escrow Agent shall release only such amount certified for payment in the Payment
Certification that Seller does not object to, if any, and Escrow Agent shall
continue to hold the portion of the amount certified for payment in the Payment
Certification Seller objects to until directed to do otherwise by joint written
instruction from the parties or a decision by the Consulting Broker (as defined
below) pursuant to (iii) below directing the disposition of such portion of the
amount certified for payment in the Payment Certification objected to by Seller.
(iii) In the event Seller objects to the release of Vacant
Space Escrowed Funds for payment of an amount certified for payment in the
Payment Certification, and the parties cannot resolve such disagreement or
dispute, then either party shall have the right, upon ten (10) days
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notice to the other party, to have the disagreement or dispute submitted to the
Consulting Broker, for decision, whose decision shall be binding on Seller and
Inland. Seller or Inland shall have the right to propose to the other the name
of a third-party commercial real estate broker with at least ten (10) years
experience in the shopping center field to resolve such disagreement or dispute
(the "Consulting Broker"). If the parties cannot agree on such proposed
Consulting Broker, either one shall have the right to refer the selection of the
Consulting Broker to the president of a commercial real estate brokerage
association that serves the area in which the Property is located and is
qualified with ten years experience in the shopping center field, except if the
president is not an independent party or otherwise qualified as provided above,
in which case the matter shall be submitted to the next senior officer of such
association who is independent of both parties and has the requisite experience
qualification, who shall make such designation within ten (10) business days
after request therefor by either party, in which event such designated broker
shall be deemed the "Consulting Broker". With regard to any disagreement or
dispute referred to the Consulting Broker pursuant to this subparagraph (iii),
such Consulting Broker shall review the matter and render a decision within
thirty (30) days after referral of the matter for a decision. Seller and Inland
shall each be responsible for and pay one-half (1/2) of the Consulting Broker's
reasonable fees and expenses incurred in connection with rendering its decision
pursuant to this subparagraph (iii), and have the right to exercise all rights
and remedies available to it to enforce the Consulting Broker's decision.
(b) (i) Upon consummation of a Qualified Replacement Lease for
any of the Vacant Space, Seller may submit a written request to Escrow Agent and
to Inland that shall certify the portion of the Vacant Space Escrowed Funds
remaining in the Vacant Space Escrow with respect to such space that is to be
released to Seller (the "Release Certification") pursuant to Section 11.9 of the
Agreement. A basic example of the Release Certification is attached hereto as
SCHEDULE B.
(ii) Escrow Agent shall disburse to Seller the amount
certified for such payment in the Release Certification on the tenth (10th) day
after Escrow Agent and Inland received the Release Certification unless Escrow
Agent receives a written notice from Inland objecting to a release from the
Vacant Space Escrow of all or part of the amount certified for payment in the
Release Certification within five (5) business days after Inland's and Escrow
Agent's receipt of the Release Certification. Any such objection must set forth
the basis on which such objection is made and the amount to which such objection
is made. In such event, Escrow Agent shall release only such amount certified
for payment in the Release Certification that Inland does not object to, if any,
and Escrow Agent shall continue to hold the portion of the amount certified for
payment in the Release Certification Inland objects to until directed to do
otherwise by joint written instruction from the parties or a decision by the
Consulting Broker pursuant to Paragraph 3(a)(iii) above directing the
disposition of such portion of the amount certified for payment in the Release
Certification objected to by Inland.
(iii) In the event Inland objects to the release of Vacant
Space Escrowed Funds for payment of an amount certified for payment in the
Release Certification, and the parties cannot resolve such disagreement or
dispute, the disagreement or dispute shall be submitted to the Consulting
Broker, for decision, whose decision shall be binding on Seller and Inland.
(c) All funds remaining in the Vacant Space Escrow as of the date
that is twenty-four (24) months after the date of this Escrow Agreement (the
"Expiration Date") shall be immediately disbursed to Inland.
(d) Except as expressly provided herein, neither Seller nor Inland
shall have any right or power to withdraw Vacant Space Escrowed Funds.
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4. Escrow Agent acknowledges that it has received compensation for its
services performed pursuant to this Escrow Agreement; PROVIDED, HOWEVER, in the
event of a dispute between Seller and Inland concerning disbursement of the
Vacant Space Escrowed Funds or as a result of interpleader, Seller and Inland
shall each pay one-half (1/2) of Escrow Agent's reasonable attorneys' fees and
cost.
5. All notices, requests and other communications to any party hereunder
and all notices to the Escrow Agent required under this Escrow Agreement shall
be in writing (including telecopies, facsimile transmissions, and similar
writings) and shall be given to such party at its address, telecopier or
facsimile number set forth below or such other address, telecopier or facsimile
number as such party may hereafter specify for that purpose by notice to the
other party. If a party sends notice by facsimile, then it shall also send a
duplicate copy by hand, U.S. Mail, overnight mail or other means; provided,
however, that notice shall be deemed given upon the confirmed transmission of
the facsimile copy.
TO SELLER:
Barclays Realty and Management Co.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With copy to:
Xxxxxxx Coie
00000 X.X. Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Facsimile: ________________________
TO INLAND:
Inland Real Estate Acquisitions, Inc.
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile (000) 000-0000
With copy to:
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
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TO THE ESCROW AGENT:
Chicago Title Insurance Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Each such notice, request or other communication shall be effective and shall be
deemed received (a) if given by telecopier or facsimile transmission, when such
telecommunication is transmitted and confirmation of receipt obtained (provided,
however, that a duplicate copy shall also be sent to the same party by hand,
U.S. Mail, overnight mail or other means), (b) if given by mail, three days
after such communication is so deposited, postage prepaid, by registered or
certified mail, return receipt requested, in the U.S. Mail, (c) if given by
overnight mail, then on the next business day after deposit with a nationally
recognized overnight mail service, or (d) if given by any other means, when
delivered at the address specified in this Section.
6. No amendment or modification of this Escrow Agreement shall be
effective unless in writing, signed by all of the parties hereto.
7. Escrow Agent hereby accepts the duties imposed upon it by this Escrow
Agreement and agrees to perform such duties subject to the following terms and
conditions:
(a) The Escrow Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Escrow Agreement.
(b) In the absence of bad faith, the Escrow Agent may conclusively
rely upon written notices and statements or documents received from a party to
this Escrow Agreement or from a duly authorized representative of a party to
this Escrow Agreement, as Escrow Agent reasonably believes to be genuine, and
shall incur no liability on account of such reliance.
(c) Except where it shall be determined that the Escrow Agent is
liable for gross negligence or willful misconduct:
(1) The Escrow Agent shall not be liable for any error of
judgment; and
(2) The Escrow Agent shall not be liable with respect to any
action taken or omitted to be taken by the Escrow Agent in accordance with this
Escrow Agreement.
(d) No provision of this Escrow Agreement shall be construed to
require the Escrow Agent to expend or risk the Escrow Agent's own funds or
otherwise incur any financial liability in the performance of any of the duties
hereunder.
(e) Escrow Agent shall not be responsible for the validity or the
execution of this Escrow Agreement.
(f) The parties shall indemnify and hold Escrow Agent harmless from
and against any and all loss, liability, claim, damage or expense (hereinafter
collectively "Damages"), including reasonable attorney's fees, (I) which Escrow
Agent may incur or suffer by reason of its performance under this Escrow
Agreement (except Escrow Agent's gross negligence or willful misconduct) for
which
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such party is responsible, and (2) which arise from or relate to any action by
or failure of such party related to the subject matter of this Escrow Agreement.
8. This document may be executed in as many counterparts as may be
required; and it shall not be necessary that the signature of, or on behalf of,
each party, or that the signatures of all persons required to bind any party,
appear on each counterpart; but it shall be sufficient that the signature of, or
on behalf of, each party, or that the signatures of the persons required to bind
any party, appear on one or more of such counterparts. All counterparts shall
collectively constitute a single document.
9. This Escrow Agreement may be executed and delivered by exchange of
facsimile copies showing the signatures of Seller, Inland and Escrow Agent and
those signatures need not be affixed to the same copy. The facsimile copies
showing the signatures of Seller, Inland and Escrow Agent will constitute
originally signed copies of the same agreement requiring no further execution.
10. Time is of the essence of this Escrow Agreement and the terms hereof.
11. The liability of each Seller under this Escrow Agreement is and shall
be joint and several.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[See following pages for counterpart signature pages]
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SELLER'S COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the ___ day of May, 2004 as to Seller.
SELLER:
NORTHPOINTE DELAWARE, LLC, a
Delaware limited liability company
By:
------------------------------------
Xxxxx Xxxxxxxxx
Sole Manager
CHULA VISTA PLAZA, LLC, a
California limited liability company
By:
------------------------------------
Xxxxx Xxxxxxxxx
Sole Manager
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INLAND'S COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the ____ day of May, 2004 as to Inland.
INLAND:
INLAND WESTERN SPOKANE
NORTHPOINTE, L.L.C., a Delaware
limited liability company
By: INLAND WESTERN RETAIL
REAL ESTATE TRUST, INC.,
a Maryland corporation, its sole member
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
---------------------------
Its: [ILLEGIBLE]
----------------------------
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ESCROW AGENT'S COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the ___ day of May, 2004 as to Escrow Agent.
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
-----------------------------
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SCHEDULE A
Payment Certification
LETTER OF DIRECTION
TO: Chicago Title Insurance Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
RE: Escrow No. _________________________ (the "Escrow")
DATED: ______________
Dear Xxxxx:
With respect to the above-referenced Escrow and pursuant to that certain
Vacancy Escrow Agreement dated as of ______________, 2004, among Northpointe
Delaware, LLC, and Chula Vista Plaza, LLC (collectively, "Seller"), and Chicago
Title Insurance Company ("CTIC") and the undersigned, CTIC is hereby directed to
disburse to the undersigned the sum of $_____________________ from the Escrow.
All disbursements should be made on ______________, 2004.
If you have any questions or comments, or receive any objection from Seller
to the disbursement of any funds from the Escrow as directed in this letter,
please call us as soon as possible.
Very Truly Yours,
INLAND WESTERN SPOKANE NORTHPOINTE, L.L.C.,
a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation, its sole member
By:
------------------------------------
Name:
---------------------------
Its:
----------------------------
cc: Xxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxx, Esq.
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SCHEDULE B
Release Certification
LETTER OF DIRECTION
TO: Chicago Title Insurance Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
RE: Escrow No. ________________________ (the "Escrow")
DATED: ______________
Dear Xxxxx:
With respect to the above-referenced Escrow and pursuant to that certain
Vacancy Escrow Agreement dated as of ___________________, 2004, among Inland
Western Spokane Northpointe, L.L.C. ("Inland"), Chicago Title Insurance Company
("CTIC") and the undersigned, CTIC is hereby directed to disburse to the
undersigned the sum of $_______________________ from the Escrow.
All disbursements should be made on ____________________________, 2004.
If you have any questions or comments, or receive any objection from
Inland to the disbursement of any funds from the Escrow as directed in this
letter, please call us as soon as possible.
Very Truly Yours,
NORTHPOINTE DELAWARE, LLC, a
Delaware limited liability company
By:
------------------------------------
Xxxxx Xxxxxxxxx
Sole Manager
CHULA VISTA PLAZA, LLC, a
California limited liability company
By:
------------------------------------
Xxxxx Xxxxxxxxx
Sole Manager
cc: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx, Esq.
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