Exhibit 10.412
VACANCY ESCROW AGREEMENT
THIS VACANCY ESCROW AGREEMENT (the "AGREEMENT") is made and entered into as
of the 29 day of October, 2004, by and among Rubloff Gurnee Town Centre, L.L.C.,
an Illinois limited liability company (hereinafter referred to as "SELLER"),
Inland Western Gurnee, L.L.C., a Delaware limited liability company (hereinafter
referred to as "BUYER"), and Chicago Title Insurance Company (hereinafter
referred to as "ESCROW AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale dated as
of the 5th day of October, 2004 (the "CONTRACT"), Buyer acquired on and as of
the date hereof from Seller certain real property known as Gurnee Town Centre
located in Gurnee, Illinois (the "PROPERTY"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of One Hundred Forty-Three Thousand Four
Hundred Seventeen and 00/100 Dollars ($143,417.00) (the "ESCROW DEPOSIT") with
respect to (i) Seller's obligation to pay certain rent payable to Buyer, and
other charges, for the Vacant Space (as hereinafter defined), all as described
by this Escrow Agreement and as more particularly set forth on the attached
EXHIBIT A, and, (ii) Seller's obligation to perform certain repairs on the
Property.
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. DEPOSITS. Seller hereby deposits with Escrow Agent, and Escrow Agent
hereby acknowledges receipt of the sum of One Hundred Forty-Three Thousand Four
Hundred Seventeen and 00/100 Dollars ($143,417.00) as the total Escrow Deposit.
Escrow Agent hereby agrees to deposit the Escrow Deposit into an interest
bearing account (subject to immediate withdrawal) 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 is as follows: ▇▇-▇▇▇▇▇▇▇.
2. DISBURSEMENTS. Escrow Agent shall retain the Escrow Deposit in the
account, and shall cause the same to be disbursed therefrom as follows:
A. LEASING DEPOSIT. (i) That portion of the Escrow Deposit identified
as the sum of One Hundred Thirty Seven Thousand, Seven Hundred Ninety Two
and 00/100 Dollars ($137,792.00) is hereby referred to as the "LEASING
DEPOSIT." The Leasing Deposit is applicable to 4,250 square feet of tenant
space at the property commonly known as the "KDA Space" which is not
occupied by a tenant as of the date hereof (the "VACANT SPACE") and is
allocable to the Vacant Space as shown on EXHIBIT A. Buyer shall receive a
prorated credit from the Leasing Deposit on the date hereof for the rent
and reimbursable expenses attributable to the Vacant Space from the date
hereof through
the end of the current month. 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. The amount of the monthly disbursement to Buyer
from the Leasing Deposit shall be as directed by Buyer by notice to Seller
and Escrow Agent each month, according to the form of request attached as
EXHIBIT C (which shall be equal to 1/12 of the Leasing Deposit prorated for
any partial months) (the "LEASING DEPOSIT MONTHLY PAYMENT").
(ii) Seller has previously delivered to Purchaser a partially executed
lease agreement with Design Ventures, LLC ("DESIGN VENTURES") whereby
Design Ventures will lease the Vacant Space. Seller will use reasonable
efforts to cause Design Ventures to execute the Design Ventures lease
within thirty (30) days following the date of this Agreement. At such time
as Design Ventures has taken possession of the Vacant Space, and has
commenced full payments of base rent and all other payments required by the
Design Ventures lease, and has delivered to Seller and Buyer an estoppel
certificate and rent commencement date agreement confirming the above
requirements (collectively, the "LEASE-UP CRITERIA"), then (1) this Vacancy
Escrow Agreement shall automatically terminate as of that date upon which
the Lease-Up Criteria are satisfied, (2) Escrow Agent shall disburse to
Buyer the lesser of (i) the entire balance of the remaining Leasing Deposit
or (ii) Seller's proportionate share of the costs attributable to the
installation of such proposed tenant, including legal costs, leasing
commissions, tenant improvements and tenant allowances, which shall be
calculated by multiplying such costs by a fraction, the numerator of which
shall be the number of months remaining in the term of this Vacancy Escrow
Agreement, and the denominator of which shall be the total number of months
in the replacement tenant's lease term, and (3) the Escrow Agent shall
disburse to Seller any balance of the remaining Leasing Deposit. The
parties request for disbursement shall be according to the form attached as
EXHIBIT C.
B. REPAIRS DEPOSIT. That portion of the Escrow Deposit identified as
the sum of Seven Thousand Five Hundred and 00/100 Dollars ($5,625.00.00) is
hereby referred to as the "REPAIRS DEPOSIT." Seller agrees to perform the
following repairs to the Property, within thirty (30) days following the
date of this Agreement: (1) complete repairs to wooden fence serving as
trash enclosure for Outlot #2; and (2) and complete masonry trash
enclosures for Outlots #3 and #4 (collectively, the "REPAIR WORK"). Seller
shall deliver to Escrow Agent and Buyer copies of all contracts, lien
waivers and partial lien waivers (if applicable) from all contractors and
subcontractors that have performed any of the Repair Work. Upon (i) written
notice by Seller to Escrow Agent and Buyer ("REPAIR NOTICE") and Buyer's
written approval within five (5) days after receipt thereof, which approval
shall not be unreasonably withheld, (ii) the issuance by the Title Company
of a date-down endorsement confirming no mechanics' liens exist against the
Property as a result of said Repair Work, and (iii) delivery by Seller to
Buyer and Escrow Agent of a letter from the Village of Gurnee indicating
that the Property is in compliance with all applicable ordinances and that
the items described in that letter from the Village of Gurnee, dated
October 25, 2004 have been rectified, then Escrow Agent shall immediately
release to Seller the entire balance of the Repairs Deposit Seller's Repair
Notice shall be deemed approved by Buyer if Buyer does not give written
approval or disapproval to Escrow Agent of same within such five (5) day
period. If Buyer
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disapproves, Buyer shall advise Seller of specific reasons for any such
disapproval. If the Repair Work is not completed within such thirty (30)
day period, then Buyer shall be entitled (but not obligated) to perform the
Repair Work, and the Escrow Agent shall disburse to Buyer the actual cost
to Buyer to perform the Repair Work. Any amounts remaining in the Repair
Escrow after completion of the Repair Work by Buyer shall then be disbursed
to Seller. Buyer's request for disbursement shall be according to the form
attached as EXHIBIT C.
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 as to that disbursement shall cease. In the event of any dispute
regarding disbursement of the Escrow Deposit, the prevailing party in any
litigation, regarding 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. ESCROW FEES. The costs of administration of this Escrow Agreement by
Escrow Agent shall $300.00, which 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 an 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 Gurnee, L.L.C
c/o Inland Western Retail Real Estate Trust, Inc.
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇, Esq.
The Inland Real Estate Group, Inc./Law Department
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (630) 218-8000 ext. 2854
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: Rubloff Development Group, inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Chicago Title Insurance Company
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6. COUNTERPARTS. This Escrow Agreement may he 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 and Seller, on a
monthly basis, an escrow statement of account of the Escrow Deposit. Such
monthly statements shall he delivered to Buyer and Seller at the addresses
provided above for notices.
8. LEASING ACTIVITIES. If the Design Ventures lease is, for any reason, not
executed by Design Ventures, then in consideration of Seller depositing the
amounts required hereunder in the Escrow Account, Buyer hereby agrees that
during the period commencing on the date hereof and ending on the twelve (12)
month anniversary of the date hereof (the "SUBSEQUENT LEASING PERIOD"), Seller
is hereby granted a license to enter upon the Property for the purposes of, and
shall be responsible for, coordinating all leasing activities at the Property
for the Vacant Space (but not any other space in the Property). Seller and Buyer
each agree to comply with the laws of the State of Illinois in connection with
their respective leasing activities. As leasing coordinator, Seller shall work
with Buyer's broker to coordinate negotiations with prospective tenants and
supervise completion of construction of tenant improvements under leases for the
Vacant Space. Buyer shall have the right to reasonably approve all leases
executed after the date hereof for Vacant Space; provided however, Buyer has no
right to disapprove lease terms equal to or more favorable to the landlord than
the terms set forth in the "LEASING GUIDELINES" attached hereto as EXHIBIT B.
Buyer agrees to approve or disapprove any lease submitted to Buyer for approval
within seven (7) business days after Buyer's receipt thereof and Buyer shall
advise Seller of specific reasons for any such disapprovals. If Buyer fails to
approve or disapprove of any lease submitted to Buyer within such seven (7) day
period of Buyer's receipt thereof, such lease shall be deemed approved by Buyer.
Seller shall submit all letters of intent to lease to Buyer for execution and
Seller shall periodically advise Buyer of the status of lease negotiations
during the
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Subsequent Leasing Period, including sending drafts of leases to Buyer. During
the Subsequent Leasing Period, leases shall be prepared and negotiated through
legal counsel recommended by Seller and reasonably approved by Buyer, using the
standard form lease prepared by Buyer, or, subject to Buyer's written approval,
a tenant form lease.
(SIGNATURE PAGE FOLLOWS)
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SIGNATURE PAGE FOR
VACANCY ESCROW AGREEMENT AMONG
RUBLOFF GURNEE TOWN CENTRE, L.L.C., INLAND WESTERN GURNEE,
L.L.C., AND CHICAGO TITLE INSURANCE COMPANY
IN WITNESS WHEREOF, Seller, Buyer and Escrow Agent have caused this Vacancy
Escrow Agreement to be executed as of the day and year first above written.
RUBLOFF GURNEE TOWN CENTRE, L.L.C., an
Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name:
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Title:
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INLAND WESTERN GURNEE, L.L.C., a
Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Its: Asst. Secretary, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
ACCEPTANCE OF ESCROW
Receipt of an executed copy of the foregoing instrument is hereby
acknowledged, and the undersigned hereby agrees to act as Escrow Agent in
accordance with the foregoing agreement.
CHICAGO TITLE INSURANCE COMPANY
Date: 10/25/04
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By: [ILLEGIBLE]
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Escrow No: 24114665 Name: [ILLEGIBLE]
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Title: [ILLEGIBLE]
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SIGNATURE PAGE FOR
VACANCY ESCROW AGREEMENT AMONG
RUBLOFF GURNEE TOWN CENTRE, L.L.C., INLAND WESTERN GURNEE,
L.L.C., AND CHICAGO TITLE INSURANCE COMPANY
IN WITNESS WHEREOF, Seller, Buyer and Escrow Agent have caused this Vacancy
Escrow Agreement to be executed as of the day and year first above written.
RUBLOFF GURNEE TOWN CENTRE, L.L.C., an
Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name: /s/ [ILLEGIBLE]
-------------------------------------
Title: Vice President
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INLAND WESTERN GURNEE, L.L.C., a
Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By:
----------------------------------
Its:
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ACCEPTANCE OF ESCROW
Receipt of an executed copy of the foregoing instrument is hereby
acknowledged, and the undersigned hereby agrees to act as Escrow Agent in
accordance with the foregoing agreement.
CHICAGO TITLE INSURANCE COMPANY
Date:
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By:
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Escrow No.: Name:
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Title:
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EXHIBIT A TO VACANCY ESCROW AGREEMENT
LEASING DEPOSIT
BASE RENT REIMBURSEABLES TOTAL
PER MONTH $ 9,916.67 $ 1,566.00 $ 11,482.67
12 MONTHS $ 119,000.00 $ 18,792,00 $ 137,792.00
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EXHIBIT B TO
VACANCY ESCROW AGREEMENT
LEASING GUIDELINES
1. The proposed use shall be a use typically found in retail centers of this
type.
2. The proposed use does not violate any exclusions existing in any other
tenant's lease or covenants existing in any other documents of record.
3. The lease is for an original term of not less than 5 years, nor more than
10 years.
4. No concessions shall be provided to the tenant which would be at Buyer's
expense.
5. All leases shall be prepared substantially in accordance with the tenant
lease form approved by Buyer subject to commercially reasonable variances
and prevailing market parameters.
6. The proposed tenant has successful retail and/or business operating
experience including, but not limited to, three years in the type of
business to be operated at the leased premises.
7. The proposed tenant (or the franchisor, if applicable) shall have more
than one location.
8. The proposed tenant and/or lease guarantor has an aggregate net worth of
at least two years of the total aggregate annualized rent, including all
expenses.
9. Said leases shall average at least 3% increases per year over the primary
term of the lease.
10. The tenant's lease will not include rent reductions or early termination
clauses of any kind.
11. In addition to tenant's base rent, the leases will include 100%
reimbursement for taxes, insurance and common area maintenance, including
a 15% administrative charge for CAM.
12. Buyer shall act in a commercially reasonable manner and in good faith
during its review and determination of the credit worthiness of any
tenant and/or guarantor. Also, Buyer agrees to respond to Seller
deliveries of tenant/guarantor credit information within 5 business days
after its receipt by Buyer, otherwise said tenant/guarantor credit
worthiness shall be deemed approved by Buyer.
13. The provisions of any new lease regarding renewals, if any, shall provide
that the economic terms during the renewal period(s) will not be less
than the economic terms during the immediately preceding term, and shall
not require Buyer to
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provide or pay for any tenant improvements, free rent, or leasing
commissions.
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EXHIBIT C TO VACANCY ESCROW AGREEMENT
FORM OF REQUEST
[DATE]
VIA FACSIMILE (▇▇▇) ▇▇▇-▇▇▇▇
Chicago Title Insurance Company
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Asst. V. P. & Sr. Escrow Officer
Re: Vacancy Escrow Agreement dated October________________, 2004 among
Rubloff Gurnee Town Centre, L.L.C and Inland Western Gurnee, L.L.C.
and Chicago Title Insurance Company--Your Escrow Account
No._______________________
Ladies and Gentlemen:
This disbursement request is being delivered to you by the undersigned
pursuant to the Vacancy Escrow Agreement referenced above. All capitalized terms
not defined herein shall have the meanings ascribed to them in the Vacancy
Escrow Agreement. Please disburse amounts from the Escrow Account as follows:
[1. VACANT SPACE--LEASING DEPOSIT MONTHLY PAYMENT: Please disburse to the
undersigned $_______________________, representing base rent and reimburseables
for the Vacant Space for the month of_________________________, 200_. Please
note that consent of the Seller is not required for this disbursement.]
[2. VACANT SPACE--FINAL DISBURSEMENT: Please disburse$___________________
to the undersigned and $_______________to Seller, plus any accrued but unpaid
interest, and close the Escrow Account. Please note that the consent of the
Seller is required for this disbursement.]
[3. REPAIRS DISBURSEMENT: Please disburse $______________ to Seller and
$________________ to the undersigned from the Repairs Deposits. Please
note that consent of the Seller is not required for this disbursement.]
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INLAND WESTERN GURNEE, L.L.C., a
Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By:
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Its:
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CONSENT BY SELLER
RUBLOFF GURNEE TOWN CENTRE, L.L.C., an
Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name:
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Title:
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cc: Rubloff Development Group, Inc.
Att: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (via facsimile at 815-398-5271)
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