EXHIBIT 10.327
ESCROW AGREEMENT
(MASTER LEASE)
This ESCROW AGREEMENT (this "Agreement") is made and entered into as of the
24th day of August, 2004, by and among ▇▇▇▇▇▇▇ PROPERTY ASSOCIATES, GP, a
Georgia general partnership (hereinafter referred to as "Seller"), INLAND
WESTERN ▇▇▇▇▇▇▇ COLUMNS, L.L.C., a Delaware limited liability company
(hereinafter referred to as "Buyer"), and FIRST AMERICAN TITLE INSURANCE COMPANY
(hereinafter referred to as "Escrow Agent") havings as its address attention:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Buyer and Seller entered into that certain letter agreement having
a date of June 22, 2004, as amended August 2, 2004 (the "Contract"), in which
Seller agreed to sell and Buyer agreed to purchase that certain real property
known as The Columns (the "Center"), located in Jackson, Tennessee (the
"Property"); and
WHEREAS, in connection with the closing of Buyer's acquisition of the
Property, Seller has agreed to deposit into escrow the sum of Two Hundred
Sixty-Six Thousand Four Hundred Dollars ($266,400.00) (the "Escrow Deposit") in
order to secure certain obligations of Seller in connection with one (1) 2,400
square foot vacant space and three (3) 1,600 square foot vacant spaces in the
Center (the "Vacant Spaces" or a "Vacant Space"), pursuant to the terms and
conditions of the Contract; and
WHEREAS, Buyer and Seller have agreed that the Escrow Deposit is sufficient
security to account for the rent, common area maintenance and tax obligations
which would have been attributable to the Vacant Space if fully leased
(collectively, the "Rent"), and Buyer and Seller have further agreed that
notwithstanding Buyer's purchase of the Property, this Agreement shall serve as
a master lease of the Vacant Space and that Seller shall be permitted to find a
tenant for the Vacant Space subject to the terms and conditions of 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 Property, 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. At Closing, Seller shall deposit with Escrow Agent, and Escrow Agent
hereby acknowledges receipt of the sum of Two Hundred Sixty-Six Thousand Four
Hundred Dollars ($266,400.00) 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
▇▇-▇▇▇▇▇▇▇.
2. Subject to the terms and conditions of this Agreement, Escrow Agent
shall retain the Escrow Deposit in the account until the earlier of:
(ii) two (2) years from the date of closing of Buyer's purchase of
the Property from Seller (the "Escrow Term"); or
(ii) the date upon which an Acceptable Tenant (as defined
hereinbelow) opens for business, is occupying the premises and is paying full
rent and expenses and has delivered a certificate of occupancy and tenant
estoppel for the leased premises, at which time the prorated portion of Rent
attributable to said Vacant Space being held in escrow shall be returned to
Seller, less any abated rent not yet payable by the Acceptable Tenant, which
shall be disbursed to Buyer.
Buyer and Seller jointly direct Escrow Agent to pay to Buyer the monthly
installment of Rent which would have been due for each of the Vacant Spaces if
Leased calculated based on rent of Sixteen Dollars ($16.00) per square foot per
year and CAM, tax and insurance of Two and 50/100 Dollars ($2.50) per square
foot per year, or as otherwise directed by Buyer and Seller, on the first
business day of each month from and after the Closing under the Contract,
commencing on or about, from the Escrow Deposit. Any accrued interest on the
Escrow Deposit on the second anniversary of this Agreement or earlier
termination thereof shall be disbursed to Seller by Escrow Agent. From and after
the second anniversary of this Escrow Agreement, Seller shall have no liability
whatsoever to Buyer with respect to any obligations hereunder or in connection
with the Vacant Spaces, or any of them.
3. This Agreement shall further serve as a master lease for each of the
Vacant Spaces up to and including the expiration of the Escrow Term or earlier
termination pursuant to the provisions of this Agreement. Buyer and Seller agree
that it is in their best interest to procure an Acceptable Tenant for each of
the Vacant Spaces and agree that in connection with those efforts, Buyer and
Seller shall cooperate in good faith in the execution of and delivery of
documents reasonably satisfactory to Buyer and Seller for the execution and
delivery of replacement leases for the Vacant Spaces. Nothing contained herein
shall preclude Seller from leasing all of the Vacant Spaces to a single
Acceptable Tenant as one space.
4. Notwithstanding the terms and conditions set forth in Section 2 above,
and in order to mitigate any obligations of Seller pursuant to the terms and
conditions of this Agreement, Buyer hereby consents to Seller negotiating with
and procuring an Acceptable Tenant to lease each of the Vacant Spaces during the
term of this Escrow Agreement. In connection with the procurement of an
Acceptable Tenant, Seller shall be responsible for any reasonable cost
associated with leasing the Vacant Spaces as approved by Seller.
5. Seller shall attempt to lease the Vacant Spaces per the "Tenant
Guidelines" set forth on EXHIBIT A attached hereto. A prospective tenant meeting
the Tenant Guidelines shall be deemed an "Acceptable Tenant", and Buyer may not
withhold consent to an Acceptable Tenant. Seller agrees to use its standard form
Shopping Center Lease used for other shop space tenants for any Vacant Space,
amended as required.
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6. 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 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.
7. The reasonable costs of administration of this Escrow Agreement by
Escrow Agent shall be paid by Seller. 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 this Escrow
Agreement shall control in all events.
8. 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 Seller: c/o GBT Realty Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Hartman, Simons, Spielman, Simons, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇ Ferry Landing
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
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If to Buyer: Inland Western ▇▇▇▇▇▇▇ Columns, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: First American Title Insurance Company
National Commercial Services
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
9. 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.
10. TIME OF THE ESSENCE. Time shall be of the essence in the performance
by the parties hereto of their respective agreements and obligations hereunder.
11. MODIFICATION. This Agreement shall not be modified or amended except
by a written instrument executed by or on behalf of each of the parties to this
Agreement.
12. NO ASSIGNMENT. The rights and obligations hereunder shall inure to the
benefit of Buyer and Seller. This Agreement may not be assigned by either party.
13. SEVERABILITY. In the event any provisions or portions of this
Agreement are held by any court of competent jurisdiction to be invalid or
unenforceable, such holding shall not affect the remainder hereof, and the
remaining provisions hereof shall continue in full force and effect to the same
extent as would have been the case had such invalid or unenforceable provision
or portion never been a part hereof.
14. ACCESS TO SPACE. During the term of this Agreement, Seller shall have
the keys to the Vacant Spaces and the right to show the Vacant Spaces to
prospective tenants.
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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.
SELLER:
▇▇▇▇▇▇▇ PROPERTY ASSOCIATES, GP
a Georgia general partnership
By: ▇▇▇▇▇▇▇ Management Associates, LLC,
a Georgia limited liability company, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Manager
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BUYER:
INLAND WESTERN ▇▇▇▇▇▇▇ COLUMNS, L.L.C.,
a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
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As Its: AUTHORIZE AGENT
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ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
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EXHIBIT A
TENANT CRITERIA
A replacement tenant for a Vacant Space shall be deemed to be acceptable to
Seller if said tenant meets the following guidelines:
1. TERM. The tenant agrees to enter into a lease for a term of at least three
(3) years.
2. PREMISES. The tenant agrees to enter into a lease for at least 1,600 square
feet of space.
3. MINIMUM ANNUAL RENT. The tenant pays at least $16.00 per square foot
minimum annual rent, unless Seller pays the difference out of escrow or
otherwise.
4. SECURITY DEPOSIT. The tenant agrees to pay a security deposit of at least
$2,100, unless the tenant is a regional or national tenant, in which case
no security deposit shall be required.
5. EXCLUSIVES/USE RESTRICTIONS. The tenant meets all exclusive and restriction
rights of any tenants.
6. LEASE FORM. The tenant agrees to enter into the standard lease form used
for other shop space tenants.