Exhibit 10.418
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the 22nd day of
November, 2004, by and among FOX CREEK VILLAGE, LLC, a Colorado limited
liability company (hereinafter referred to as "SELLER"), INLAND WESTERN LONGMONT
FOX CREEK, 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 Purchase and Sale Agreement dated as of
the 17th day of August, 2004, as amended (collectively, the "CONTRACT"), Buyer
acquired on and as of the date hereof from Seller certain real property known as
Fox Creek Village Shopping Center located in Longmont, Colorado (the
"PROPERTY"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of One Million Three Hundred Forty Seven
Thousand Four Hundred Seventy and 17/100 Dollars ($1,347,470.17) (the "ESCROW
DEPOSIT") with respect to Seller's obligation to pay certain lease commissions,
landlord's share of tenant build out, free rent periods, rent payable to Buyer,
other charges, for the Vacant Space (as hereinafter defined), tenant improvement
allowances, 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. ESCROW DEPOSIT. Seller hereby deposits with Escrow Agent, and Escrow
Agent hereby acknowledges receipt of the sum of One Million Three Hundred Forty
Seven Thousand Four Hundred Seventy and 17/100 Dollars ($1,347,470.17) 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 is as follows: 00-0000000.
2. APPLICATION OF ESCROW DEPOSIT. 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 as
the sum of Eight Hundred Forty Seven Thousand Eight Hundred Forty Nine and
68/100 Dollars ($847,849.18) is hereby referred to as the "LEASING DEPOSIT."
Five Hundred Forty Seven Thousand Eight Hundred Forty Nine and 18/100 Dollars
($547,849.18) of the Leasing Deposit
("VACANT SPACE PORTION") is applicable to 8,026 square feet of tenant space and
PAD F at the property not leased to tenants as of the date of Closing (as
defined in the Contract) (the "VACANT SPACE"), and $300,000 of the Leasing
Deposit ("PAD F PORTION") is applicable to the arrangement regarding the rental
rate at which PAD F is ground leased (if it is leased) as described in Paragraph
2 of the Second Amendment to the Contract. Seller shall be required to place the
Vacant Space (excluding PAD F) 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. Buyer shall receive a prorated credit from
the Vacant Space portion of 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 Vacant Space
portion of the Leasing Deposit, in the sum of l/24th of the Vacant Space portion
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
(other than PAD F) 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"). As to PAD F, the Escrow Agent shall make the Leasing Deposit
Monthly Payment until rent commences under a ground lease with a PAD F tenant
which shall be the Tenant Condition for PAD F. Buyer and Seller shall promptly
notify Escrow Agent of the date any tenant satisfies the Tenant Conditions. As
the Vacant Space is leased during the two-year period following the date of
Closing, with the Tenant Conditions having then been satisfied, the balance of
the Vacant Space portion of the Leasing Deposit attributable to each such leased
Vacant Space shall then be released to Seller upon the joint direction of Seller
and Buyer. The balance of the Vacant Space Portion of the Leasing Deposit, if
any, remaining on the second anniversary date of the date of Closing, shall be
released to Buyer. In addition, Escrow Agent shall hold the $300,000 PAD F
Portion of the Leasing Deposit pending the ground lease of PAD F. If PAD F is
successfully leased during the two-year period following Closing, then such
$300,000 shall be distributed by Escrow Agent to Buyer and/or Seller in
accordance with the terms of Paragraph 2 of the Second Amendment to the Contract
(which Amendment is dated October 13, 2004).
B. TENANT IMPROVEMENT ALLOWANCES AND LEASING COMMISSIONS DEPOSIT.
That portion of the Escrow Deposit identified as the sum of Two Hundred Eighty
Thousand Nine Hundred Ten and No/100 Dollars ($280,910.00) is hereby referred
to as the "TI/LC DEPOSIT." The TI/LC Deposit is applicable to the Vacant Space
(excluding PAD F) on the basis of the product of Five and No/100 Dollars ($5.00)
as and for leasing/brokerage commissions ("LC"), plus the product of Thirty and
No/100 Dollars ($30.00) as and for tenant improvement allowances ("TI"), each
multiplied by 8,026. That portion of the TI/LC Deposit attributable to 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. That portion of the TI/LC Deposit attributable
to TI shall be released by Escrow Agent
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upon the joint direction of Seller and Buyer accompanied by the documentation
required by each lease, and in any event, no less documentation than copies of
invoices and mechanics lien waivers in the amount of each request shall
accompany the draw request. As each portion of the Vacant Space is leased to
tenants during the two-year period following the date of Closing, and the Tenant
Conditions are fulfilled as to such tenant(s), the amount of non-allocated TI/LC
Deposit attributable to each of such space(s) shall then be released to Seller
upon the joint direction of Seller and Buyer; provided, however, such amount,
together with the allocated TI/LC Deposit amount, shall not exceed a total of
$35.00 per square foot of Vacant Space so leased. Any non-allocated TI/LC
Deposit remaining on the second anniversary of the date of Closing, for any then
Vacant Space, shall be released to Buyer.
C. SIGNED LEASES DEPOSIT. That portion of the Escrow Deposit
identified as the sum of Seventeen Thousand One Hundred Ninety-Eight and 99/100
Dollars ($17,198.99) is hereby referred to as the "SIGNED LEASES DEPOSIT." The
Signed Leases Deposit is applicable to 4,674 square feet of tenant space at the
property leased to tenants (H&R Block and Dragon Wingz) 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. Buyer shall receive a prorated settlement sheet 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 one month for H&R Block ($2,931) and two
months for Dragon Wingz ($7,134 per month).
D. UPFITTING WORK DEPOSIT AND LEASING COMMISSIONS PAYABLE. That
portion of the Escrow Deposit identified as the sum of Two Hundred One Thousand
Five Hundred Thirteen and No/100 Dollars ($201,513.00) is hereby referred to as
the "UPFITTING WORK DEPOSIT AND LEASING COMMISSIONS PAYABLE." The Upfitting Work
Deposit is applicable to the "landlord work" described by the tenant leases for
the collective Starbuck's ($30,000), Dragon Wingz ($97,470), H&R Block
($44,657), Postnet ($6,500), and Squeeze International ($11,200) tenant space.
Seller shall be entitled to draw down the Upfitting Work Deposit to pay for the
landlord work. 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. In addition, $11,686.00 is applicable
to earned but unpaid Leasing Commissions for Dragon Wingz ($8,283) and H&R Block
($3,403). Seller may draw down such commissions when they are payable.
3. ESCROW 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
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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. ESCROW COSTS. The costs of administration of this Escrow Agreement by
Escrow Agent 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 Longmont Fox Creek, L.L.C.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: G. Xxxxxx Xxxxxxx
WITH A COPY TO: Xxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxxxxxxx Xxxx
0xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
IF TO SELLER: Fox Creek Village, LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
WITH A COPY TO: Xxxx X. Xxxxxxxxx, Esq.
c/o Sherman and Xxxxxx L.L.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
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
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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 LONGMONT FOX CREEK,
L.L.C., a Delaware limited liability
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation
By: /s/ G. Xxxxxx Xxxxxxx
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Name: G. XXXXXX XXXXXXX
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As Its: AUTHORIZED AGENT
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SELLER:
FOX CREEK VILLAGE,LLC, a Colorado limited
liability company
By: G & W, LLC, a Colorado limited liability
company, its sole Manager
By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Manager
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
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Name:
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As Its:
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