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EXHIBIT 10.1
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into as of the _________ day of
___________, 2003, by and among INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., a
Maryland corporation (the "Company"), INLAND SECURITIES CORPORATION, an Illinois
Corporation (the "Dealer Manager"), and LASALLE BANK NATIONAL ASSOCIATION, a
national banking association (the "Escrow Agent").
1. The Company does hereby open this escrow and Escrow Agent's sole
concern and duties shall be as specifically set forth herein:
1.1 From time to time during the course of this escrow, in
connection with the Company's offering (the "Offering") of up to
270,000,000 shares of common stock on a "best efforts" basis (the "Shares")
(exclusive of Shares offered and sold pursuant to the Company's
distribution reinvestment program), Escrow Agent will receive from
subscribers deposits to be held in escrow in accordance with the terms
hereof. All such funds received by Escrow Agent shall be placed into an
interest-bearing account entitled "Inland Western Retail Real Estate Trust,
Inc. Subscription Account" (the "Escrow Account").
2. All deposits from each subscriber shall be accompanied by the
subscriber name, social security number, current address and investment amount.
3. Checks deposited in the Escrow Account from the various subscribers
shall be made payable to "LBNA, Escrow Agent for IWRRET."
4. All parties understand and are aware that all funds received during
the course of the escrow and deposited in the Escrow Account must clear the
normal banking channels prior to the release of any funds.
5. The Company understands that it is not entitled to any funds received
into escrow in the event of cancellation of the Offering and in such event,
deposits shall be returned to the subscribers.
6. The parties agree that this is an impound escrow between the Company,
the Dealer Manager and the Escrow Agent. The Company and the Dealer Manager
agree that the subscribers who deposit into the "Escrow Account" are not a party
to this escrow.
7. All documents, including any instrument necessary for the negotiation
or other transfer of escrow assets, deposited simultaneously with the execution
of this Agreement are approved by the Company, and the Escrow Agent shall not be
obligated to inquire as to the form, manner of execution or validity of these
documents or any document hereafter deposited pursuant to the provisions hereof,
nor shall the Escrow Agent be obligated to inquire as to the identity, authority
or rights of the persons executing the same. The Escrow Agent shall be liable
under this Agreement only for its gross negligence or willful misconduct in the
performance of its duties expressly set forth in this Agreement. The Escrow
Agent shall have a lien on all securities, monies and documents deposited in
this escrow by each subscriber to secure Escrow Agent's reasonable compensation
and expenses and for judgments, attorneys' fees and other
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liabilities which the Escrow Agent may incur or sustain by reason of this
escrow, and the undersigned agrees to pay to Escrow Agent, upon demand, amounts
to satisfy all such liabilities, fees and expenses. In case of conflicting
demands upon it, the Escrow Agent may withhold performance of this escrow until
such time as the conflicting demands shall have been withdrawn or the rights of
the respective parties shall have been settled by court adjudication,
arbitration, joint order or otherwise.
8. Until the termination of the Offering, the Company shall notify the
Escrow Agent of the Company's acceptance or rejection of each subscription
agreement as promptly as practicable, but in any event within ten (10) days of
its receipt, and of any subscription which is rescinded within five (5) days of
such rescission. If the Escrow Agent receives notice that a subscription is
rejected by the Company, the subscriber's deposit will be returned by the Escrow
Agent to the subscriber, without interest or deduction, as promptly as
practicable, but in any event within ten (10) days after its receipt of notice
from the Company that the subscription has been rejected. If a subscription is
rescinded, the Escrow Agent shall return to the subscriber the subscriber's
deposit, without interest or deduction, within seven (7) days of being notified
by the Company of such rescission. In the event the check of a subscriber whose
subscription has been rescinded has been negotiated (and if the funds
represented thereby have been disbursed to the Company), the Company shall
deposit with the Escrow Agent an amount of funds equal to the amount necessary
to be returned to the subscriber (or the Escrow Agent may deduct such amount
from any funds due to the Company under this Agreement). The Escrow Agent shall
not be liable for the failure to return a rejected or rescinded subscription if
the Company fails to notify the Escrow Agent of the rejection of rescission of
the corresponding subscription agreement.
9. Commencing with the date paid subscriptions have been received and
accepted for at least 200,000 Shares or $2,000,000 (the "Minimum Offering"),
provided such date is within six months of the initial date of the Company's
prospectus (such initial date of the Company's prospectus being the "Effective
Date"), and ending on the Termination Date (the "Offering Period"), the Escrow
Agent shall (i) disburse to the Company on a weekly basis any funds received by
the Escrow Agent for accepted subscriptions (but not those funds of a subscriber
whose subscription has been rejected or rescinded of which the Escrow Agent has
been notified by the Company, or otherwise in accordance with the Company's
written request; and (ii) invest any funds held in the escrow subject to
paragraph 10 hereof, in such instruments as the Company may direct. Upon
termination of the Offering, which shall occur not later than 12 months after
the Effective Date, provided however that, subject to requalification in certain
states, the Company may extend the Offering Period from time to time, but in no
event more than two years after the Effective Date (the "Termination Date"), all
amounts theretofore undistributed shall be distributed to the Company, and this
escrow shall close and be consummated in its entirety. If subscriptions for at
least the Minimum Offering have not been received, accepted and paid for within
six months of the Effective Date, all funds received will be promptly returned
in full to subscribers, together with their pro rata share of any interest
earned thereon pursuant to instructions made by the Company, upon which the
Escrow Agent may conclusively rely. If such refund is made, Inland Real Estate
Investment Corporation will pay any escrow fees.
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10. The funds deposited herein shall be invested in federally insured bank
accounts (e.g., savings accounts), short-term certificates of deposit issued by
a bank, short-term securities issued or guaranteed by the United States
government and any other investments permitted under Rule 15c2-4 of the
Securities Exchange Act of 1934, as amended, at the direction of the Company.
The interest on such investments shall, on a monthly basis while subscribers'
deposits remain in escrow and, if all conditions herein are met, when such
deposits are disbursed to the Company, be disbursed by the Escrow Agent to the
Company in accordance with paragraph 9 hereof.
11. The Company agrees to disburse to the Dealer Manager any funds due to
it for the Offering in accordance with the terms and conditions of the Dealer
Manager Agreement dated ______________, 2003 between the Company and the Dealer
Manager, provided that the Escrow Agent has disbursed to the Company the funds
due to the Company for the related subscriptions. The Dealer Manager shall
assist the Company in connection with the Company's compliance with this
Agreement. The Dealer Manager shall not have any lien on or security interest in
any securities, monies or documents deposited in this escrow.
12. Any notices which are required or desired to be given hereunder to the
parties hereto shall be in writing and may be given by mailing the same to the
address indicated below (or to such other address as either of the parties may
have theretofore substituted therefor by written notification to the other party
hereto), by registered or certified United States mail, postage prepaid. For all
purposes hereof, any notice so mailed by the Escrow Agent shall be treated as
though served upon the party to whom it was mailed at the time it is deposited
in the United States mail by the Escrow Agent whether or not such party
thereafter actually receives such notice. Notices to the Escrow Agent shall be
in writing and shall not be deemed to be given until actually received by the
Escrow Agent's trust department. Whenever under the terms hereof the time for
giving a notice or performing an act falls upon a Saturday, Sunday or bank
holiday, such time shall be extended to the Escrow Agent's next business day.
13. The Escrow Agent, when acting as the Escrow Agent undertakes to
perform only such duties as are expressly set forth herein and the Escrow Agent
shall not be subject to, nor obliged to recognize, any other agreement between,
or direction or instruction of, the Company even though reference thereto may be
made herein; provided, however, this Agreement may be amended at any time or
times by an instrument in writing signed by the Company, the Dealer Manager and
Escrow Agent. In the event the Escrow Agent becomes involved in or is threatened
with litigation by reason hereof, it is hereby authorized to and may deposit
with the clerk of a court of competent jurisdiction any and all funds held by it
pursuant hereto, and thereupon the Escrow Agent shall stand fully relieved and
discharged of any further duties hereunder.
14. If any property subject hereto is at any time attached, garnished or
levied upon, under any court order, or in case the payment, assignment,
transfer, conveyance or delivery of any such property shall be stayed or
enjoined by any court order, or in any case any order, judgment or decree shall
be made or entered by any court affecting such property, or any part thereof,
then in any of such events, the Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ, judgment or
decree, which it is advised by legal counsel of its own choosing is binding upon
it, and if it complies with any such order, writ, judgment or decree, it shall
not be liable to any of the parties hereto or to any other person, firm
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or corporation by reason of such compliance, even though such order, writ,
judgment or decree may be subsequently reversed, modified, annulled, set aside
or vacated.
15. This Agreement shall be construed, enforced and administered in
accordance with the internal laws, as opposed to the conflicts of laws
provisions, of the State of Illinois.
16. The Escrow Agent shall be entitled to reasonable fees in connection
with this Escrow, which fees shall be payable by the Company.
17. The Escrow Agent may resign at any time upon giving at least thirty
(30) days prior written notice to the Company; provided, however, that no such
resignation shall become effective until the appointment of a successor escrow
agent which shall be accomplished as follows: The Company shall use its best
efforts to select a successor escrow agent within thirty (30) days after
receiving such notice. If the Company fails to appoint a successor escrow agent
within such time, the Escrow Agent shall have the right to appoint a successor
escrow agent. The successor escrow agent shall execute and deliver an instrument
accepting such appointment and it shall, without further acts, be vested with
all the estates, properties, rights, powers, and duties of the predecessor
escrow agent as if originally named as escrow agent. Upon delivery of such
instrument, the Escrow Agent shall be discharged from any further duties and
liability under this Agreement. The Escrow Agent shall be paid any outstanding
fees and expenses prior to transferring assets to a successor escrow agent.
18. Any notice required to be given hereunder by any of the parties hereto
shall be addressed as follows:
If to the Company:
Inland Western Retail Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Ms. Roberta S. Matlin, Vice President - Administration
If to the Dealer Manager:
Inland Securities Corporation
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Ms. Brenda G. Gujral, President
If to Escrow Agent:
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: _______________, Corporate Trust Department
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19. The foregoing is subject to the following conditions:
The obligations and duties of the Escrow Agent are confined to those
specifically enumerated in the escrow instructions. The Escrow Agent shall not
be subject to, nor be under any obligation to ascertain or construe the terms
and conditions of any other instrument, whether or not now or hereafter
deposited with or delivered to the Escrow Agent or referred to in the escrow
instructions, nor shall the Escrow Agent be obligated to inquire as to the form,
execution, sufficiency, or validity of any such instrument nor to inquire as to
the identity, authority, or rights of the person or persons executing or
delivering the same.
The Escrow Agent shall not be personally liable for any act which it may do
or omit to do hereunder in good faith and in the exercise of its own best
judgment. Any act done or omitted by the Escrow Agent pursuant to the advice of
its attorneys shall be deemed conclusively to have been performed or omitted in
good faith by the Escrow Agent.
If the Escrow Agent should receive or become aware of any conflicting
demands or claims with respect to this Agreement, or the rights of any of the
parties hereto, or any money, property, or instruments deposited herein or
affected hereby, the Escrow Agent shall have the right in its sole discretion,
without liability for interest or damages, to discontinue any or all further
acts on its part until such conflict is resolved to its satisfaction and/or to
commence or defend any action or proceeding for the determination of such
conflict. Notwithstanding any other provision hereof, in the event of any
dispute, disagreement or legal action relating to or arising in connection with
the escrow, the Escrow Fund, or the performance of the Escrow Agent's duties
under this Agreement, the Escrow Agent will not be required to determine the
controversy or to take any action regarding it. The Escrow Agent may hold all
documents and funds and may wait for settlement of any such controversy by final
appropriate legal proceedings, arbitration, or other means as, in the Escrow
Agent's discretion, it may require. In such event, the Escrow Agent will not be
liable for interest or damage. Furthermore, the Escrow Agent may, at its option,
file an action of interpleader requiring the parties to answer and litigate any
claims and rights among themselves. The Escrow Agent is authorized, at its
option, to deposit with the Court in which such interpleader action is filed all
documents and funds held in escrow. The Escrow Agent is further authorized to
withhold from such deposit for its own account an amount sufficient to
compensate itself for all costs, expenses, charges, and reasonable attorneys'
fees incurred by it due to the interpleader action. Upon initiating such action,
the Escrow Agent shall be fully released and discharged of and from all
obligations and liability imposed by the terms of this Agreement.
The Company and Dealer Manager agree, jointly and severally, to indemnify
and hold the Escrow Agent, its officers, directors and employees harmless from
and against all costs, damages, judgments, attorney's fees (whether such
attorneys shall be regularly retained or specially employed), expenses,
obligations and liabilities of every kind and nature which the Escrow Agent may
incur, sustain, or be required to pay in connection with or arising out of this
Agreement, and to pay the Escrow Agent on demand the amount of all such costs,
damages, judgments, attorney's fees, expenses, obligations, and liabilities. To
secure said indemnification and to satisfy its compensation hereunder, the
Escrow Agent is hereby given a first lien upon and the right to reimburse itself
therefor out of, all of the rights, titles, and interests of each of said
parties in all money, property, and instruments deposited hereunder, except for
any money,
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property or instruments that relate to money received that must be returned
pursuant to the provisions of the second to last sentence of paragraph 9.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the day and year first above written.
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC.
By:
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Title:
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INLAND SECURITIES CORPORATION
By:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION
By:
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Title:
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