POST-CLOSING AGREEMENT

 

                                                                  Exhibit 10.254

                             POST-CLOSING AGREEMENT

       THIS POST-CLOSING AGREEMENT (this "Agreement") is made as of the ____ day
of July, 2004, by INLAND WESTERN CRANBERRY DST, a Delaware statutory trust,
having its principal place of business at 2901 Butterfield Road, Oak Brook,
Illinois 60523 ("Borrower"), to BEAR STEARNS COMMERCIAL MORTGAGE, INC., a
New York corporation, having an address at 383 Madison Avenue, New York,
New York 10179 ("Lender").

                                    RECITALS:

       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 TEN MILLION NINE HUNDRED
THOUSAND AND No/100 DOLLARS ($10,900,000.00) 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 or the
Loan Agreement.

       B.     The Loan is secured by, among other things, an Open-End Mortgage
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 capitalized terms not defined herein shall have the meaning
ascribed to those terms in the Loan Agreement.

       C.     Lender was unwilling to make the Loan to Borrower unless Borrower
agreed to timely perform the matters set forth herein.

                                   AGREEMENT:

       For good and valuable consideration the parties hereto agree as follows:

       1.     POST-CLOSING OBLIGATIONS. Borrower covenants and agrees to deliver
to Lender:

              (a) within thirty (30) days of the date hereof, an original
estoppel letter executed by Barnes & Noble Booksellers, Inc. that does not
contain any alleged defaults or situations that could ripen into a default, and
is otherwise in form and substance satisfactory to Lender in its reasonable
discretion or other evidence satisfactory to Lender confirming that (i) the
inadequate trash removal and (ii) the improper maintenance of the landscaping in
the Common Area have been fixed or corrected to Barnes & Noble Booksellers,
Inc.'s satisfaction;

              (b) within thirty (30) days of the date hereof, an original
estoppel letter executed by Toys "R' Us - Penn., Inc. that does not contain any
alleged defaults or situations that could ripen into a default, and is otherwise
in form and substance satisfactory to Lender in its



reasonable discretion or other evidence satisfactory to Lender confirming that
(i) the pothole in the parking lot, (ii) the needed repainting of the parking
lot lines, (iii) the improper maintenance of the landscaping, and (iv) the
needed cleaning of the side walks have been fixed or corrected to Toys "R' Us
-Penn., Inc.'s satisfaction;

              (c) within thirty (30) days of the date hereof, an original
estoppel letter executed by Best Buy Stores, L.P. that does not contain any
alleged defaults or situations that could ripen into a default, and is otherwise
in form and substance satisfactory to Lender in its reasonable discretion or
other evidence satisfactory to Lender confirming that the roof leaks have been
fixed or corrected to Best Buy Stores, L.P.'s satisfaction;

              (d) within thirty (30) days of the date hereof, an original
subordination, nondisturbance and attornment agreement executed by Barnes &
Noble Booksellers, Inc. and Borrower, in recordable form and otherwise in form
and substance satisfactory to Lender in its reasonable discretion;

              (e) within thirty (30) days of the date hereof, an original
subordination, nondisturbance and attornment agreement executed by Dick's
Sporting Goods, Inc. and Borrower, in recordable form and otherwise in form and
substance satisfactory to Lender in its reasonable discretion; and

              (f) within thirty (30) days of the date hereof, an original
subordination, nondisturbance and attornment agreement executed by OfficeMax,
Inc. and Borrower, in recordable form and otherwise in form and substance
satisfactory to Lender in its reasonable discretion.

       2.     GOVERNING LAW. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State of New York and shall in all
respects be governed, construed, applied and enforced in accordance with the
laws of the State of New York.

       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 sought.

       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
hereof.

       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
versa.

       10.    SECONDARY MARKET/SERVICING. Lender may, at any time, sell,
transfer or assign this Agreement, the Note, the Security Instrument and the
other Loan 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 Loan
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 Loan Documents are
assigned. All references to Lender herein shall refer to and include any such
servicer to the extent applicable.

       11.    MISCELLANEOUS.

              (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 Agreement are
subject to the provisions of Section 9.4 of the Loan Agreement, and such
provisions are incorporated herein by reference.

          [THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]



       IN WITNESS WHEREOF the undersigned have executed this Agreement as of the
date and year first written above.

                               BORROWER:

                               INLAND WESTERN CRANBERRY DST, a
                               Delaware statutory trust

                               By:   Inland Western Retail Real Estate Trust,
                                     Inc., a Maryland corporation, its Signatory
                                     Trustee

                                     By:      /s/ Valerie Medina
                                         -----------------------
                                         Name: Valerie Medina
                                         Title: Asst. Secretary

                               LENDER:

                               BEAR STEARNS COMMERCIAL
                               MORTGAGE, INC., a New York corporation

                               By:
                                    --------------------------------------------
                               Name:
                               Managing Director 

Basic Info X:

Name: POST-CLOSING AGREEMENT
Type: Post-closing Agreement
Date: Sept. 8, 2004
Company: RETAIL PROPERTIES OF AMERICA, INC.
State: Maryland

Other info: