Exhibit 10.381
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
________________, 2004, by and among UTF WINSTON-SALEM L.L.C., a Delaware
limited liability company {"Seller"), INLAND WESTERN WINSTON-SALEM 5TH STREET,
L.L.C., a Delaware limited liability company ("Purchaser") and CHICAGO TITLE
INSURANCE COMPANY ("Escrow Agent").
PRELIMINARY STATEMENTS
Seller and Purchaser are parties to that certain Agreement of Sale August
10, 2004 (as amended, the "Purchase Agreement"), regarding the purchase and sale
of certain real property located in the Winston-Salem, North Carolina (the
"Property"). In connection with the closing (the "Closing") of the transaction
contemplated by the Purchase Agreement, Seller and Purchaser desire certain
proceeds of the Closing be delivered into escrow, to be disbursed by Escrow
Agent in accordance with the terms and conditions of this Agreement and the
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties hereby agree as follows:
AGREEMENT
1. ESCROW PROCEEDS OF ESCROW PROCEEDS INTO ESCROW. Simultaneous with
the Closing, Seller shall deposit a portion of the Purchase Price proceeds
payable to Seller in the amount of $75,000 (the "Escrow Proceeds"). The Escrow
Proceeds shall be delivered to Escrow Agent in immediately available funds and
held by Escrow Agent as contemplated by the following provisions. The Escrow
Proceeds shall be held by Escrow Agent, pending disbursement as contemplated
herein, in a federally-insured interest bearing account with a commercial bank
or savings and loan institution. The earnings on such account shall be deemed
income of Seller.
2. RELEASE OF ESCROW PROCEEDS.
(a) Purchaser shall be pursuing the issuance of a "No Further
Action" determination (a "No Further Action Determination") from the North
Carolina Department of Environment and Natural Resources (the "NCDENR")
with respect to certain environmental conditions on the Property as
described in the Phase II Limited Site Assessment prepared by ATC
Associates, Inc. ("ATC") dated September 2, 2004. The Escrow Proceeds
shall be held by the Escrow Agent, in escrow, and shall be disbursed by
the Escrow Agent in such sums as may be necessary to pay any direct third
party costs and expenses incurred by Purchaser in connection with
obtaining a No Further Action Determination; provided that Purchaser
provides Escrow Agent with (i) a written request
for payment and (ii) evidence sufficient to substantiate such third party
costs and expenses.
(b) If a No Further Action Determination is not received by June
30, 2005, any undisbursed portion of the Escrow Proceeds shall be released
to Purchaser.
(c) Upon the issuance of a No Further Action Determination by
NCDENR, all amounts held by the Escrow Agent as the Escrow Proceeds, less
any amounts required to pay expenses incurred by Purchaser as described
above, shall be paid to Seller.
3. DUTIES OF ESCROW AGENT/INDEMNITY. Escrow Agent's sole function
hereunder shall be to receive and disburse funds in accordance with the terms
hereof and with notices received from Purchaser which Escrow Agent shall believe
to be genuine. Seller and Purchaser agree to indemnify and hold Escrow Agent
harmless from and against any liability resulting from the good faith exercise
of its rights and obligations hereunder. Escrow Proceeds, any withdrawals or
thereof and any interest earned thereon, and to provide copies of such records
to Purchaser or Seller from time to time upon either's written request, but not
more than once every 30 days.
4. ACCOUNTING RECORDS. Escrow Agent agrees to maintain consistent,
detailed and accurate accounting records of the Escrow Proceeds, any withdrawals
thereof and any interest earned thereon, and to provide copies of such records
to Purchaser or Seller from time to time upon either's written request, but not
more than once every 30 days.
5. COUNTERPART EXECUTION. This Agreement may be signed in counterparts.
6. SUCCESSORS AND ASSIGNS. All of the provisions herein contained shall
be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto, to the same extent as if each such successor and
assign were in each case named as a party to this Agreement.
7. DEFINED TERMS. Capitalized terms used in this Agreement but not
defined in this Agreement shall have the meanings assigned to them in the
Purchaser Agreement.
8. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed any delivered shall be
an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first above written.
SELLER:
UTF WINSTON-SALEM L.L.C.
By United Trust Fund Limited Partnership, its
sole member
By United Trust Fund, Inc., its sole
general partner
By /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
PURCHASER:
INLAND WESTERN WINSTON-SALEM
5TH STREET, L.L.C.
By: Inland Western Retail Real Estate Trust,
Inc., its sole member
By /s/ Xxxxx Xxxxxx
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Name Xxxxx Xxxxxx
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Title Assistant Secretary
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ESCROW AGENT:
CHICAGO TITLE INSURANCE
COMPANY
By: /s/ N. Xxxx Xxxxxx
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Name: N. Xxxx Xxxxxx
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Title: V.P. & Sr. Counsel
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