Exhibit 10.93
XXXXXX CENTRE ESCROW
This XXXXXX CENTRE ESCROW ("Escrow") is by and between INLAND WESTERN
SPARTANBURG, L.L.C., a Delaware limited liability company ("Inland"), LCW
SPARTANBURG, L.L.C., a South Carolina limited liability company ("LCW"), and
CHICAGO TITLE AND TRUST COMPANY, a Missouri corporation ("CT&T").
RECITALS:
WHEREAS, LCW and Inland Real Estate Acquisition, Inc., ("IREA") entered
into that certain purchase and sale agreement dated November 7, 2003, as amended
by that certain Amendment To Contract ( collectively the "Contract") for the
sale and purchase of the approximately 386,894 net rentable square feet of the
Xxxxxx Center Shopping Centre located, on approximately 50 acres of land at
Xxxxxxxxxx Road and W.O. Xxxxx Road, Spartanburg, South Carolina and consisting
of 5 phases known as the Wal Mart Tract, Shop Tract 1, Shop Tract 2, Shop Tract
3 (collectively "Phase I ") and Phase II (Phase I and Phase II are collectively
referred to as the " Property"); and
WHEREAS, the Contract provides that in the event that any space in Phase I
is not occupied by a tenant currently paying full rent, common area maintenance
("CAM") charges, real estate taxes and insurance ( collectively "rent and pass
throughs"), then LCW shall deposit with CT&T an amount equal to the annual rent
and pass throughs for each such space; and
WHEREAS, there are three spaces in Phase I that require the deposit of the
rent and pass throughs as listed on Exhibit "A" attached hereto and made a part
hereof.
NOW, THEREFORE, for and in consideration, of the terms and provisions
contained in the Contract and the mutual agreements and understandings contained
in this Escrow, Inland, LCW and CT&T agree as follows:
1. All of the above recitals are incorporated herein by reference as if
fully restated herein as this paragraph 1.
2. LCW hereby deposits with CT&T the amounts listed on Exhibit "A" for
each of the Spaces on Exhibit "A", which amounts represent the rent and pass
throughs for each such space from April 1, 2004 through March ___, 2005.
Commencing on April 10, 2004 and on the tenth (10th) day of each month
thereafter, Inland will report to CT&T the amount of any rent and pass throughs
for the applicable month that Inland receives from each tenant that occupies one
of the spaces listed on Exhibit "A" and on the date that CT&T receives such
report, CT&T shall pay to Inland from this Escrow on a per space basis, the
amount per space listed on Exhibit "A" less any amount that Inland reports it
has received from a tenant occupying such space. Simultaneously with the payment
to Inland each month, CT&T shall also pay to LCW from this Escrow on a per space
basis, the amount that Inland reports it has received from a tenant occupying
the space, less all unpaid costs and expenses of this Escrow which CT&T shall
be entitled to pay itself from the funds to be paid to LCW. If after notifying
CT&T of the
receipt of any payments from the tenants of the spaces, Inland receives any rent
and/or pass throughs for the applicable month, then after receiving payment from
CT&T, Inland shall pay to LCW the lesser of the CT&T payment for the space or
the payments received from the tenant.
When a tenant occupies a space, is paying full rent and pass throughs for
such space, and a final Certificate of Occupancy has been issued for the space,
then LCW and Inland shall notify CT&T in writing ( "Full Payment Notice") of
such fact. Upon receipt of the Full Payment Notice, CT&T shall pay to itself
from the remaining funds held in this Escrow for the applicable space all unpaid
costs and expenses of this Escrow and shall pay the balance of such funds for
such space to LCW. CT&T shall be entitled to act upon a Full Payment Notice sent
solely by LCW ten (10) days after receipt thereof provided that with such notice
CT&T receives proof that the Full Payment Notice was delivered to and received
by Inland and the Full Payment Notice is not contested in a writing by Inland
delivered to CT&T before actual pay out by CT&T. The monthly payment of rent and
pass throughs will be made either to Inland or LCW as described above by CT&T
until: (i) all funds originally deposited into this Escrow have been paid out as
described herein, (ii) Inland and LCW mutually direct CT&T to disburse the
funds, or any portion thereof, or (iii) a Full Payment Notice from LCW is not
contested by Inland and it directs full payment of all sums less costs and
expenses held in this Escrow. A sample of the joint written direction
authorizing CT&T to disburse funds is attached hereto and made a part hereof as
Exhibit "B."
In addition to the rent and pass throughs deposited by LCW, LCW shall also
deposit the amount of the $5.00 per square foot per Exhibit "A" space to pay
tenant improvement costs for such spaces and $3.00 per square foot per space to
pay leasing commissions to lease such spaces. LCW is responsible for procuring
tenants for such spaces and is responsible for the costs and expenses of all
tenant improvement and the leasing commissions for such spaces that are incurred
or accrued for any lease of an Exhibit "A" space during the period of one year
from date of this Escrow. It is agreed between LCW, Inland and CT&T that upon
the joint written direction of LCW and Inland, CT&T shall disburse from the
funds deposited for tenant improvements and leasing commissions the amounts
directed by LCW and Inland, and to the parties designated by LCW and Inland, to
pay the tenant improvements and leasing commissions for the spaces listed on
Exhibit "A" as they are leased to new tenants.
3. All funds deposited into this Escrow shall be invested as directed by
Inland and LCW jointly provided that on the tenth day of each month at least one
full month's rent and pass throughs per space is available for disbursement as
described above. The costs and expenses of this Escrow and any investment costs
or fees will be paid by LCW either out of the interest earned on the funds
deposited herein or out of additional funds deposited herein by LCW. It is
agreed between LCW and Inland that interest earned on the original funds
deposited into this Escrow can be used to pay the costs and expenses and
investment charges of this Escrow. All interest earned on the funds originally
deposited into this Escrow shall be assessed to LCW.
4. Except as to deposits of funds for which CT&T has received express
written direction concerning investment or other handling, the parties hereto
agree: (i) that CT&T shall be under no duty to invest or reinvest any deposits
at any time hold by it hereunder; and, further, (ii) that CT&T may commingle
such deposits with other deposits or with its own funds in the manner provided
for the administration of funds under Section 2-8 of the Corporate Fiduciary Act
(205 ILCS 620/2-8), and (iii) that CT&T may use any part or all of such funds
for its own benefit without obligation to any party for interest or earnings
derived thereby, if any; provided, however, nothing herein shall diminish CT&T's
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obligation to apply the full amount of the deposits in accordance with the terms
of these escrow instructions.
In the event CT&T is requested to invest deposits hereunder, CT&T is
not to be responsible for any loss of principal or interest which may be
incurred as a result of making the investments or redeeming said investment for
the purposes of this Escrow.
5. The undersigned hereby authorize and direct CT&T to accept, comply
with and obey any and all writs, orders, judgments or decrees entered or issued
by any court with or without jurisdiction; and in case CT&T obeys or compiles
with any such writ, order, judgment or decree of any court, it shall not be
liable to any of the parties hereto or any other person, by reason of such
compliance, notwithstanding any such writ, order, judgment or decree be entered
without jurisdiction or be subsequently reversed, modified, annulled, set aside
or vacated. In case CT&T is made a party defendant to any suit or proceedings
regarding this Escrow, the undersigned, for themselves, their heirs, personal
representatives, successors and assigns, jointly and severally, agree to pay to
CT&T, upon written demand, all reasonable costs, attorney's fees and expenses
incurred with respect thereto. CT&T shall have a lien on the deposit(s) herein
for any and all such reasonable costs, fees and expenses. If said costs, fees
and expenses are not paid, then CT&T shall have the right to reimburse itself
our of said deposit(s) after providing notice thereof to the other parties
hereto.
6. This Escrow is governed by and is to be construed under the laws of
the State of Illinois. This Escrow, amendments or supplemental instructions
hereto, may be executed in counterparts, each of which shall, be deemed on
original and all such counterparts together shall constitute one and the same
instrument.
7. In the event of a default hereunder on the part of Inland or LCW, the
other party may institute litigation against the defaulting party and the
prevailing party in such litigation shall be entitled to collect all reasonable
costs and expenses thereof, including, without limitation, all reasonable
attorney's fees and paralegal fees through all appellate proceedings together
with all costs and expenses charged by CT&T as described in this Escrow.
8. All notices from and to any of the parties to this Escrow shall be in
writing and should be served by an overnight courier or express service, such as
Federal Express or UPS, and shall be deemed delivered on the day after deposit
with such special delivery service or may be served upon the parties by
facsimile transmission provided such transmission is completed by 5:00 p.m. on a
business day otherwise such notice shall be deemed served at 9:00 a.m. on next
succeeding business day:
Copy to: LCW Spartanburg, LLC
c/o Art Xxxxx
WRS, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxx Xxxxxxxx 00000
Copy to: Inland Western Spartanburg, L.L.C.
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c/o H. Xxx Xxxxx
Inland Western Retail Real Estate Trust Inc.,
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Tel:(000) 000-0000
Fax:(000) 000-0000
Copy to: Xxxxx Xxxxxx
Chicago Title Insurance Company
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel:(000) 000-0000
Fax:(3l2) 000-0000
9. As between LCW and Inland only, any conflicts between this Escrow and
the Contract are to be interpreted in favor of the Contract. CT&T is not a party
to the Contract and is not required to refer to nor interpret the Contract in
order to comply with the terms of this Escrow.
IN WITNESS WHEREOF, inland, LCW and CT&T have each caused their respective
authorized officers to execute this Escrow this ____ day of _____________, 2004.
INLAND Western Spartanburg, L.L.C., a
DELAWARE limited liability company
By:
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Its:
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LCW Spartanburg, L.L.C.,
a South Carolina limited liability company
By: WRS Inc.. its Manager
By: /S/ Xxxxxx X. Xxxxx
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Its: Vice President
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CHICAGO TITLE AND TRUST COMPANY.
a Missouri corporation
By:
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Its:
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Escrow No.
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EXHIBIT B
JOINT WRITTEN DIRECTION
TO: Chicago Title and Trust Company
Attn:__________________________
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
RE: Xxxxxx Centre Escrow No.__________________
Dear _________________:
You are hereby authorized and directed to withdraw $_________________ from
Escrow No.___________ and pay same to__________________________________________,
INLAND Western Spartanburg, L.L.C., a
Delaware limited liability company
By:
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Its:
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LCW Spartanburg, L.L.C.,
a South Carolina limited liability company
By:
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Its:
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EXHIBIT "A"
HOLDBACK CALCULATION
For Vacant Space Agreement
Rent TL/Leasing TL/Leasing
SF Rent CAM/T/I Annual Months Days Holdback Rate Holdback Total Holdback
-- ---- ------- ------ ---- -------- ---- -------- --------------
Vacant Space 2,500 $ 14.00 $ 2.70 $ 41,750 11 $ 38,270.83 3 $ 336.69 $ 38,607.53 $ 8.00 $ 20,000.00 $ 58,607.53
China King 6,OOO $ 13.00 $ 2.70 $ 94,200 11 $ 88,350.00 3 $ 759.68 $ 87,109.68 $ 8.00 $ 48,000.00 $ 135,109.68
China King T1 (Per lease and letter agreement) $ 55,450.00
For Pier One Escrow
Pier One (Per Closing Agreement) $ 13,800.00