THIS POST-CLOSING AGREEMENT (this "Agreement") is made as of the 10th day
of May, 2004, by INLAND WESTERN SAN ANTONIO MILITARY DRIVE LIMITED PARTNERSHIP,
an Illinois limited partnership, having its principal place of business at 2901
Butterfield Road, Oak Brook, Illinois 60523 ("Borrower"), to COMMERCIAL LENDING
LLC, a Delaware limited liability company, having an address at 383 Madison
Avenue, New York, New York 10179 ("Lender"),
A. Borrower by its promissory note of even date herewith given to Lender
(the note together with all extensions, renewals, modifications, substitutions
and amendments thereof shall collectively be referred to as the "Note") is
indebted to Lender in the principal sum of Three Million Eight Hundred Fifty
Thousand and No/100 Dollars ($3,850,000.00) advanced pursuant to the Loan
Agreement of even date herewith between Borrower and Lender (together with all
extensions, renewals, modifications, substitutions and amendments thereof, the
"Loan Agreement"), in lawful money of the United States of America, with
interest from the date thereof at the rates set forth in the Note (the
indebtedness evidenced by the Note, together with such interest accrued thereon,
shall collectively be referred to as the "Loan"), principal and interest to be
payable in accordance with the terms and conditions provided in the Note.
B. The Loan is secured by, among other things, a Deed of Trust and
Security Agreement (the "Security Instrument"), dated as of the date hereof,
which grants Lender a first lien on the property encumbered thereby (the
"Property"). All and any of the documents other than the Note, the Security
Instrument and this Agreement now or hereafter executed by Borrower and/or
others and by or in favor of Lender, which wholly or partially secure or
guarantee payment of the Note are referred to as the "Other Security Documents."
C. Lender was unwilling to make the Loan to Borrower unless Borrower
agreed to timely perform the matters set forth herein.
For good and valuable consideration the parties hereto agree as follows:
1. POST-CLOSING OBLIGATIONS. Borrower covenants and agrees to use its
best efforts to deliver to Lender within thirty (30) days of the date hereof,
original Subordination Non-Disturbance and Attornment agreements, in form and
substance satisfactory to Lender in its reasonable discretion, from the
following tenants: DOTS, LLC and Ross Stores Texas, L.P.
2. GOVERNING LAW. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State where the Property is located and
shall in all respects be governed, construed, applied and enforced in accordance
with the laws of the State where the Property is located.
3. NOTICES. All notices or other written communications to Borrower or
Lender hereunder shall be deemed to have been properly given (i) upon delivery,
if delivered in person with receipt acknowledged by the recipient thereof, (ii)
one (1) Business Day (hereinafter defined) after having been deposited for
overnight delivery with any reputable overnight courier service, or (iii) three
(3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the U.S. Postal Service and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Borrower or Lender at their addresses set forth in the Security
Instrument or addressed as such party may from time to time designate by written
notice to the other parties. For purposes of this Agreement, the term "Business
Day" shall mean any day other than Saturday, Sunday or any other day on which
banks are required or authorized to close in New York, New York.
Either party by notice to the other may designate additional or different
addresses for subsequent notices or communications.
4. NO ORAL CHANGE. This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of Borrower or Lender, but only by an
agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
5. LIABILITY. If Borrower consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of
Borrower and Lender and their respective successors and assigns forever.
6. INAPPLICABLE PROVISIONS. If any term, covenant or condition of this
Agreement is held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.
7. HEADINGS, ETC. The headings and captions of various paragraphs of
this Agreement are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
8. DUPLICATE ORIGINALS; COUNTERPARTS. This Agreement may be executed in
any number of duplicate originals and each duplicate original shall be deemed to
be an original. This Agreement may be executed in several counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Assignment. The failure of any party hereto
to execute this Agreement, or any counterpart hereof, shall not relieve the
other signatories from their obligations hereunder.
9. NUMBER AND GENDER. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
10. SECONDARY MARKET/SERVICING. Lender may, at any time, sell, transfer
or assign this Agreement, the Note, the Security Instrument and the Other
Security Documents, and any or all servicing rights with respect thereto, or
grant participations therein or issue mortgage
passthrough certificates or other securities evidencing a beneficial interest in
a rated or unrated public offering or private placement (the "Securities").
Lender may forward to each purchaser, transferee, assignee, servicer,
participant, investor in such Securities or any Rating Agency rating such
Securities (collectively, the "Investor") and each prospective Investor, all
documents and information which Lender now has or may hereafter acquire relating
to the Debt and to Borrower and the Property, whether furnished by Borrower or
otherwise, as Lender determines necessary or desirable. Borrower agrees to
cooperate with Lender in connection with any transfer made or any Securities
created pursuant to the Security Instrument, including, without limitation, the
delivery of an estoppel certificate in accordance therewith, and such other
documents as may be reasonably requested by Lender. Borrower shall also furnish
and Borrower consents to Lender furnishing to such Investors or such prospective
Investors any and all information concerning the Property, the Leases, the
financial condition of Borrower as may be requested by Lender, any Investor or
any prospective Investor in connection with any sale, transfer or participation
interest. Lender may retain or assign responsibility for servicing the Loan,
including the Note, the Security Instrument, this Agreement and the Other
Security Documents, or may delegate some or all of such responsibility and/or
obligations to a servicer including, but not limited to, any subservicer or
master servicer. Lender may make such assignment or delegation on behalf of the
Investors if the Note is sold or this Agreement or the Other Security Documents
are assigned. All references to Lender herein shall refer to and include any
such servicer to the extent applicable.
(a) Wherever pursuant to this Agreement (i) Lender exercises any
right given to it to approve or disapprove, (ii) any arrangement or term is to
be satisfactory to Lender, or (iii) any other decision or determination is to be
made by Lender, the decision of Lender to approve or disapprove, all decisions
that arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Lender, shall be in the sole and absolute
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.
(b) Wherever pursuant to this Agreement it is provided that
Borrower pay any costs and expenses, such costs and expenses shall include,
but not be limited to, legal fees and disbursements of Lender, whether retained
firms, the reimbursement for the expenses of in-house staff or otherwise.
12. EXCULPATION. Borrower's obligations under this Agreements are subject
to the provisions of Section 9.4 of the Loan Agreement, and such provisions are
incorporated herein by reference.
IN WITNESS WHEREOF the undersigned have executed this Agreement as of the
date and year first written above.
INLAND WESTERN SAN ANTONIO
MILITARY DRIVE LIMITED
PARTNERSHIP, an Illinois limited partnership,
By: INLAND WESTERN SAN ANTONIO MILITARY
DRIVE GP, L.L.C., a Delaware limited
liability company, its general partner
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation,
its sole member
COMMERCIAL LENDING LLC, a Delaware
limited liability company