EX-10.319 30 a2143310zex-10_319.txt EX-10.319 Exhibit 10.319 ST. LOUIS PLAYSCAPES ESCROW AND GUARANTEE AGREEMENT This ST. LOUIS PLAYSCAPES ESCROW AND GUARANTEE AGREEMENT is made and entered into as of the _________ day of August, 2004, by and among Manchester Meadows Limited Partnership, a Missouri limited partnership, (hereinafter referred to as "Seller"), Inland Western Town and Country Manchester, L.L.C., a Delaware limited liability company, (hereinafter referred to as "Buyer"), and Chicago Title and Trust Company, (hereinafter referred to as "Escrow Agent") having as its address 171 N. Clark Street, Chicago, Illinois 60601. WITNESSETH WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of the 13th day of July, 2004 (the "Contract"), Buyer acquired on and as of the date hereof from Seller certain real property commonly known as Manchester Meadows located in Town and Country, Missouri (the "Property"); and WHEREAS, Seller has advised Buyer that St. Louis Playscapes ("Playscapes") desires to relocate from the spaces it leases at the Property; and WHEREAS, Seller has agreed to deposit with Escrow Agent the sum of Six Hundred Thirty-Six Thousand Five Hundred Sixty-Three Dollars ($636,563.00) (the "Escrow Deposit") with respect to Seller's obligation to pay rent and reimbursable expenses to Buyer in connection with spaces at the Property leased to Playscapes (the "Playscapes Space"); 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 and 00/100 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 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 43-1643824. 2. ESCROW DISBURSEMENTS. The Escrow Deposit shall be held in escrow by Escrow Agent subject to the terms and condition of this Agreement and shall be disbursed as hereinafter provided. Commencing on the date that Buyer notifies Escrow Agent that Playscapes has not paid any amounts due pursuant to its lease, and continuing on the first day of each calendar month thereafter for thirty (30) months, Buyer shall be entitled to receive from the Escrow Deposit, an amount equal to one thirtieth (1/30) of the initial balance-of the Escrow Deposit, which monthly payment shall continue until the earlier of (x) the date the Escrow Deposit has been disbursed in full or (y) the date that the Playscapes Space has been leased, all leasing commissions and tenant improvements costs and expenses incurred in connection therewith have been paid in full, the tenant has occupied the space, is open for business, has commenced regularly scheduled monthly rent payments, and a certificate of occupancy has been issued (the "Lease Up Event"). At such time as the Lease Up Event has occurred and Buyer has received all requisite payments due hereunder, the balance of the Escrow Deposit, if any, shall be released to Seller. 3. LEASING. Seller shall market and lease any space vacated by Playscapes at no expense to Buyer. Seller shall pay all brokerage commissions, tenant build-out and leasing commissions. Buyer shall execute such leases, provided such leases are in conformity with the terms of this Agreement or have otherwise been approved by Buyer, promptly upon Seller's request. 4. ESCROW ADMINISTRATION. The costs of administration of this Escrow Agreement by Escrow Agent in the sum of Five Hundred and 00/100 Dollars ($500.00) 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 this Escrow Agreement shall control. 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 either be: (i) delivered by facsimile transmission, or (ii) personally delivered, or (iii) 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: Manchester Meadows Limited Partnership Attention: Stephen M. Notestine c/o Quadrant Properties, L.L.C. 16253 Swingley Ridge Road, Suite 220 Chesterfield, Missouri 63017 Telephone: (636) 530-6050 Facsimile: (636) 530-6075 With a copy to Christopher M. Blanton Seller's Counsel: The Stolar Partnership LLP 911 Washington Avenue, 7th Floor St. Louis, Missouri 63101 Telephone: (314) 231-2800 Facsimile: (314) 436-8400 With a copy to: NEBF Investments Attention: Jeffrey J. Kanne, Managing Director of Real Estate 1125 15th Street, NW, Suite 401 Washington, DC 20005 Telephone: (202) 496-1267 Facsimile: (202) 467-0903 With a copy to: Potts-Dupre, Difede & Hawkins Attention: James R. Difede 1125 15th Street, NW, Suite 444 Washington, DC 20005 If to Buyer: Inland Real Estate Acquisitions, Inc. Attention: G. Joseph Cosenza 2901 Butterfield Road Oak Brook, Illinois 60523 Telephone: (630) 218-4948 Facsimile: (630) 218-4935 With a copy to: The Inland Real Estate Group, Inc. Attn: Dennis K. Holland, Esq. 2901 Butterfield Road Oak Brook, Illinois 60523 Telephone: (630) 218-8000 Facsimile: (630) 218-4900 With a copy to Chicago Title Insurance Company Escrow Agent: Attention: Nancy Castro 171 North Clark Street Chicago, Illinois 60601 Telephone: (312) 223-3909 Facsimile: (312) 223-2108 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: Buyer at the above address. 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 TOWN AND COUNTRY MANCHESTER, L.L.C., a Delaware limited liability company By: Inland Western Retail Real Estate Trust, Inc., A Maryland corporation, its sole member By: /s/ Debra A Palmer ------------------------------- Name: Debra A Palmer ------------------------------- Title: Asst Secretary ------------------------------- SELLER: MANCHESTER MEADOWS LIMITED PARTNERSHIP, a Missouri limited partnership, By: MIDLAND TC, INC., a Missouri corporation, General Partner By: /s/ Stephen M. Notestine ------------------------------- Name: STEPHEN M. NOTESTINE ------------------------------- Title: V.P. ------------------------------- ESCROW AGENT: CHICAGO TITLE AND TRUST COMPANY By: -----------------------------------