Exhibit 10.379
POST-CLOSING AGREEMENT
THIS POST-CLOSING AGREEMENT (this "Agreement") is made as of the 8th day
of September, 2004, by CAPITAL CENTRE LLC, a Maryland limited liability company,
having its principal place of business at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx 00000, ("Grantor"), to BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., a New
York corporation, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Lender").
RECITALS:
A. Capital Centre Funding LLC, a Maryland limited liability company
(referred to herein as the "Borrower"), by its Amended and Restated Promissory
Note of even date herewith given to Lender (together with all extensions,
renewals, modifications, substitutions and amendments thereof, the "Note") is
indebted to Lender in the principal sum of SEVENTY ONE MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($71,500,000.00) advanced pursuant to the Loan
Agreement of even date herewith between Borrower, Grantor 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 guarantied by that certain Amended and Restated Limited
Guaranty Agreement, dated as of the date hereof, from Grantor in favor of Lender
(the "Limited Guaranty"). The Limited Guaranty is secured by, among other
things, that certain Amended and Restated Indemnity Leasehold Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture Filing from
Grantor to a trustee for the benefit of Lender (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 Grantor
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. Grantor covenants and agrees to deliver to
Lender:
(a) within fifteen (5) days of the date hereof, executed Tenant
Direction Letters as required, by the Loan Agreement;
(b) within thirty (30) days of the date hereof, an original ground
lessor estoppel letter executed by REVENUE AUTHORITY OF PRINCE GEORGE'S COUNTY
addressed to Lender and its successors and assigns and otherwise in form and
substance satisfactory to Lender in its reasonable discretion;
(c) within ninety (90) days of the date hereof, an updated letter
from the applicable municipality addressed to Lender and its successors and
assigns and otherwise in form and substance satisfactory to Lender in its
reasonable discretion indicating the substantially all of the tenants at the
Property have obtained final certificates of occupancy;
(d) within fifteen (15) days of the date hereof, a Cash Management
Agreement acceptable to Lender executed by Grantor and the Lockbox Bank.
2. GOVERNING LAW. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State of Maryland and shall in all
respects be governed, construed, applied and enforced in accordance with the
laws of the State of Maryland.
3. NOTICES. All notices or other written communications to Grantor 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 Grantor 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 Grantor 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 Grantor 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
Grantor 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.
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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
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 Grantor and
the Property, whether furnished by Grantor or otherwise, as Lender determines
necessary or desirable. Grantor 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. Grantor shall also furnish and Grantor consents
to Lender furnishing to such Investors or such prospective Investors any and all
information concerning the Property, the Leases, the financial condition of
Grantor 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 sub servicer 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.
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
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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
Grantor 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. Grantor'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.
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IN WITNESS WHEREOF the undersigned have executed this Agreement as of the
date and year first written above.
GRANTOR:
CAPITAL CENTRE LLC, a Maryland limited
liability company
By:Capital Centre Holding LLC, a Delaware
limited liability company, its sole
member
By:Inland Capital HC, L.L.C., a
Delaware limited liability
company, its manager
By:Inland Western Retail Real
Estate Trust, Inc., a Maryland
corporation, its sole member
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Asst. Secretary
LENDER:
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC., a New York corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
