Exhibit 10.325
MASTER LEASE ESCROW AGREEMENT
THIS MASTER LEASE ESCROW AGREEMENT (this "AGREEMENT") is made this 23rd day
of August, 2004, by and among INLAND WESTERN NEW PORT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.C., a
Delaware limited liability company ("BUYER"), AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware
limited liability company ("SELLER"), and CHICAGO TITLE INSURANCE COMPANY
("ESCROW AGENT").
WHEREAS, pursuant to that certain Agreement of Purchase and Sale, dated
July 20, 2004, between Buyer and Seller ("PURCHASE AGREEMENT"), Seller agreed to
sell to Buyer certain real property and improvements located thereon located in
Pasco County, Florida and more particularly described therein (the "PROPERTY");
WHEREAS, as of the date hereof, certain spaces within the Property are
vacant with no tenant paying rent which such spaces are set forth on EXHIBIT A
attached hereto (the "VACANT SPACES");
WHEREAS, Seller agreed to establish an escrow at Closing from the proceeds
of the Purchase Price in the amount of: (a) rent and additional charges for the
Vacant Spaces for the periods specified on EXHIBIT A, and (b) estimated
brokerage commissions in the amount of $3.00 per square foot and estimated
tenant improvement allowances in the amount of $15.00 per square foot with
respect to the Vacant Spaces.
WHEREAS, Escrow Agent has agreed to act as Escrow Agent according to the
terms and subject to the limitations set forth herein.
NOW, THEREFORE, the parties hereto agree as follows;
1. All capitalized terms which are not defined herein shall have the
meanings assigned to such terms in the Purchase Agreement.
2. The Escrow Agent hereby acknowledges that it is holding, from the
proceeds of the Purchase Price, immediately available funds in the amount of Six
Hundred Eight Thousand Six Hundred Fifty Four and 47/100 Dollars ($608,654.47)
(the "ESCROW FUNDS"). The Escrow Agent agrees to hold, invest, distribute and
disburse the Escrow Funds, together with interest earned and accruing thereon,
in strict accordance with the terms, provisions and conditions contained in this
Agreement.
3. The Escrow Agent shall invest the Escrow Funds in an interest-bearing
account with a federally-insured banking institution reasonably acceptable to
Seller and Buyer. All interest earned, paid or accrued on the Escrow Funds shall
be added to and become a part of the Escrow Funds.
4. Buyer shall have the right to draw from the Escrow Funds, on the first
day of each month, an amount sufficient to pay the monthly rental amounts set
forth in EXHIBIT A for the Vacant Spaces together with estimated common area
maintenance charges ("CAM"), insurance and Real Estate Taxes with respect
thereto. The estimated payments for CAM, insurance and Real Estate Taxes
withdrawn monthly by Buyer shall be reconciled by Buyer and Seller within sixty
(60) days after the end of each calendar year during the term of this Agreement
or the end
of this Agreement (whichever occurs first) to the actual charges for CAM,
insurance and Real Estate Taxes. Upon reconciliation, if one party owes the
other party a refund or payment, respectively, then such party shall pay the
other party within thirty (30) days after its receipt of the reconciliation
statement.
Seller's obligations in respect thereof for any Vacant Space, as the case
may be, shall terminate on the date that is the earlier to occur of (i) the date
that a tenant, reasonably acceptable to both Seller and Buyer, begins the
payment of rent and additional charges in an amount equal to or greater than the
amount shown in EXHIBIT A with respect to such space, or (ii) two (2) years
following the date hereof as to the MIN B space, and four (4) months as to the
Panera Bread space. The Escrow Funds allocated to brokerage commissions and
tenant improvements as set forth on EXHIBIT A shall be disbursed to Buyer from
time-to-time, with Seller's prior, written approval, which approval shall not be
unreasonably withheld, delayed or conditioned and shall be given if Seller shall
not have provided notice to the contrary within five (5) Business Days from
Buyer's disbursement request, in order for Buyer to pay such brokerage
commissions or tenant improvement costs as are due under any Lease entered into
by Buyer for a Vacant Space, as demonstrated by applicable invoices and
appropriate lien waivers or releases. Buyer and Seller shall both use reasonable
efforts to lease the Vacant Spaces.
Buyer shall not unreasonably withhold its consent to any New Lease for a
Vacant Space procured by Seller so long as (a) such tenant will be paying, at a
minimum, the rental amounts set forth in EXHIBIT A. (b) the tenant and proposed
lease meet the leasing guidelines set forth on EXHIBIT B attached hereto, and
(c) the brokerage fee and tenant improvement allowance do not exceed the amounts
set forth in EXHIBIT A; PROVIDED, HOWEVER, in the event the brokerage fee and/or
tenant improvement allowance for any proposed lease do exceed the amount set
forth in EXHIBIT A. Buyer shall not unreasonably withhold its consent to such
proposed lease if Seller agrees to pay all excess costs above the costs shown on
EXHIBIT A. In the event any Tenant of a Vacant Space fails to begin the payment
of rent or additional charges as required pursuant to the terms of such Tenant's
Lease as a result of a default by Buyer, as landlord under the Tenant's Lease,
Seller's obligations to pay such rent and additional charges for such Vacant
Space shall terminate as of the date of Buyer's default. On the date that is two
(2) years from the Closing Date, any remaining Escrow Funds shall be disbursed
to the Buyer and all interest accrued thereon shall be disbursed to Seller, and
Seller shall have no further liability with respect to any matters set forth in
this Agreement.
Notwithstanding any provision herein to the contrary, Buyer acknowledges
that the vacant space shown on Exhibit A as "MIN B" (10,000 square feet) is
being divided into three (3) spaces of 6,000 square feet, 1,400 square feet, and
1,800 square feet, and the Seller is negotiating leases for such spaces. At such
time as all of such leases for such subdivided spaces have been leased, all
remaining Escrow Funds will be released to the Buyer and no escrow will be
retained for the 800 square foot of space remaining from such division.
Furthermore, Buyer hereby approves the following tenants for such spaces each at
a rent of not less than $15.00 psf:
Hollywood Video (6,000 square foot space); ▇▇▇▇▇▇▇▇ Family Jewelers (1,400
square foot space); and J&R Carpets (1,800 square foot space).
5. The Escrow Agent shall have full power and authority to liquidate any
and all investments held by it under this Escrow Agreement for the purpose of
paying any amount
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required to be paid hereunder and shall be required to liquidate such securities
to the extent necessary to enable it to make such payments. The Escrow Agent
shall have no responsibility or liability for any losses resulting from
liquidation of the Escrow Funds (such as liquidation prior to maturity).
6. Seller and Buyer acknowledge and agree that the Escrow Agent (i) shall
not be responsible for any of the agreements referred to herein but shall be
obligated only for the performance of such duties as are specifically set forth
in this Escrow Agreement; (ii) shall not be obligated to take any legal or other
action hereunder which might in its judgment involve expense or liability unless
it shall have been furnished with indemnity acceptable to it; (iii) may rely on
and shall be protected in acting or refraining from acting upon any written
notice, instruction (including, without limitation, wire transfer instructions,
whether incorporated herein or provided in a separate written instruction),
instrument, statement, request or document furnished to it hereunder and
reasonably believed by it to be genuine and to have been signed or presented by
the proper person, and shall have no responsibility for determining the accuracy
thereof; and (iv) may consult counsel satisfactory to it, including house
counsel, and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
7. Neither the Escrow Agent nor any of its directors, officers or
employees shall be liable to anyone for any action taken or omitted to be taken
by it or any of its directors, officers or employees hereunder except in the
case of gross negligence, bad faith or willful misconduct. Seller and Buyer,
jointly and severally, covenant and agree to indemnify the Escrow Agent and hold
it harmless without limitation from and against any loss, liability or expense
of any nature incurred by the Escrow Agent arising out of or in connection with
this Escrow Agreement or with the administration of its duties hereunder,
including, but not limited to, legal fees and expenses and other costs and
expenses of defending or preparing to defend against any claim of liability in
respect hereof, unless such loss, liability or expense shall be caused by the
Escrow Agent's gross negligence, bad faith or willful misconduct. In no event
shall the Escrow Agent be liable for indirect, punitive, special or
consequential damages.
8. Any notices or other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered or mailed first class
certified mail, postage prepaid, addressed as follows:
To Buyer: c/o Inland Real Estate Acquisitions, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to: The Inland Real Estate Group, Inc.
Law Department
Attn: ▇▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Phone: 630/218-8000 ext. 2854
Fax: 630/▇▇▇-▇▇▇▇
To Seller: AIG ▇▇▇▇▇ MRP, L.L.C.
c/o AIG ▇▇▇▇▇ Shopping Center Properties, L.L.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
with copies to: AIG ▇▇▇▇▇ Shopping Center Properties, L.L.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
and AIG Global Real Estate Investment Corp.
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
and ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
To Escrow Agent: Chicago Title Insurance Company
[ILLEGIBLE]
▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇:▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
10. In the event of any dispute between the parties regarding the payment
or distribution of the Escrow Funds, Escrow Agent shall have the right, upon
notice to the other parties, to file an action in a court of competent
jurisdiction in Pasco County, Florida, and to interplead the Escrow Funds, or
any part or portion thereof, with said court, and upon doing so, Escrow Agent
shall be relieved of all further responsibilities and liability with respect to
the Escrow Funds so interpled. Escrow Agent shall not be liable to either Seller
or Buyer with respect to any acts or omissions hereunder, unless such acts or
omissions are contrary to the terms, provisions and conditions set forth in this
Agreement, or shall otherwise result from the
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gross negligence, bad faith or willful misconduct of Escrow Agent, and Seller
and Buyer, and each of them, hereby release Escrow Agent therefrom.
11. This Escrow Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors and assigns, but
shall not be assignable by any of the parties hereto without the written consent
of all of the other parties hereto.
12. This Escrow Agreement may be executed in any number of counterparts,
each of which shall be an original, but which together constitute one and the
same instrument.
13. This Escrow Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
14. The parties hereto agree that, for lax reporting purposes, all
interest or other income earned from the investment of the Escrow Funds shall be
allocable to Seller.
15. Seller agrees to provide the Escrow Agent with a certified tax
identification number by signing and returning a Form W-9 (or Form W-8, in the
case of non-U.S. persons) to the Escrow Agent within thirty (30) days from the
date hereof. The parties hereto understand that, in the event Seller's tax
identification number is not certified to the Escrow Agent, the Internal Revenue
Code may require withholding a portion of any interest or other income earned on
the investment of the Escrow Funds, in accordance with the Internal Revenue
Code, as amended from time to time.
16. This Escrow Agreement may not be altered or modified without the
consent of the parties hereto, which consent shall not constitute a waiver of
any of the terms or conditions of this Escrow Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A waiver of any
of the terms and conditions of this Escrow Agreement on one occasion shall not
constitute a waiver of the other terms and conditions of this Escrow Agreement,
or of such terms and conditions on any other occasion.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
[SIGNATURES FOLLOW ON REMAINING PAGES]
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[SIGNATURE PAGE TO MASTER LEASE ESCROW AGREEMENT BETWEEN AIG ▇▇▇▇▇ MRP,
L.L.C. AND INLAND WESTERN NEW PORT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. L.L.C.]
AIG ▇▇▇▇▇ MRP, L.L.C.,
A Delaware limited liability company
WITNESSES: BY: AIG ▇▇▇▇▇ SHOPPING CENTER
PROPERTIES, L.L.C., a Delaware
/s/ ▇▇▇ ▇▇▇▇ limited liability company
------------------------------- Its Sole Member
Print name: ▇▇▇ ▇▇▇▇
--------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- Its President
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[SIGNATURE PAGE TO MASTER LEASE ESCROW AGREEMENT BETWEEN AIG ▇▇▇▇▇ MRP, L.L.C.
AND INLAND WESTERN NEW PORT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.C.]
WITNESSES: INLAND WESTERN NEW PORT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.C.,
a Delaware limited liability company
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: Inland Western Retail Real Estate Trust,
------------------------------- Inc., a Maryland corporation,
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Its Sole Member
--------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
------------------------------- -----------------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
-------------------- -----------------------------
Title: Asst Secretary
-----------------------------
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[SIGNATURE PAGE TO MASTER LEASE ESCROW AGREEMENT BETWEEN AIG ▇▇▇▇▇ MRP, L.L.C.
AND INLAND WESTERN NEW PORT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.C.]
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ [ILLEGIBLE]
--------------------------------
Name: [ILLEGIBLE]
------------------------------
Title: Escrow Administrator
------------------------------
EXHIBIT A
LEASE ESCROW:
TENANT RENT CAM TAXES INS TI LC
------ --------- -------- -------- ------- --------- --------
MIN B $ 150,000 x2 $ 25,000 x2 $ 20,300 x2 $ 2,000 x2 $ 150,000 $ 30,000
--------- -------- -------- ------- --------- --------
$ 300,000 $ 50,000 $ 40,600 $ 4,000 $ 150,000 $ 30,000
--------- -------- -------- ------- --------- --------
TOTAL MIN B SPACE: $ 574,600.00
LESS 9 DAYS CREDIT GIVEN ON CLOSING STATEMENT: (4,773.39)
-------------
MIN B ESCROW: $ 569,826.61
TENANT RENT CAM
------ ----------- ----------
Panera Bread $ 9,250.83 x4 $ 1215.81 x4 0
(month) (month)
----------- ----------
$ 37,003.32 $ 4,863.24
----------- ----------
TOTAL PANERA BREAD: $ 41,866.56
LESS 9 DAYS CREDIT GIVEN ON CLOSING STATEMENT: (3,038.70)
------------
PANERA BREAD ESCROW $ 38,827.86
TOTAL ESCROW $ 608,654.47
A-1
EXHIBIT B
LEASING GUIDELINES
1. The proposed tenant has successful retail and/or business operating
experience of three (3) years in the type of business to be operated in the
leased premises;
2. The proposed use is a use typically found in retail centers similar to the
Property;
3. The proposed use does not violate any exclusives or prohibits uses existing
in any other Tenant's lease or covenants existing in any document of
record;
4. No concessions shall be provided to the tenant which would be at Buyer's
expense;
5. Such proposed lease does not contain any lease terms which are materially
different from the Leases for the Tenants of the Property; and
6. The net worth of the proposed tenant shall be such that Buyer can be
reasonably satisfied that the proposed tenant shall be able to meet the
monetary obligations contained within its lease.
B-1