Exhibit 10.235
POST-CLOSING AGREEMENT
THIS POST-CLOSING AGREEMENT (this "Agreement") is made as of the 21st day
of July, 2004, by INLAND WESTERN KILL DEVIL HILLS CROATAN, L.L.C., a Delaware
limited liability company, having its principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("Borrower"), 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. 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 ONE MILLION NINE HUNDRED SEVENTY FIVE
THOUSAND AND NO/100 DOLLARS ($1,975,000.00) advanced pursuant to the Loan
Agreement of even date herewith between Borrower, Inland Western Xxxxx Xxxx
Xxxxxxx, L.L.C., a Delaware limited liability company, Inland Western Columbia
Broad River, L.L.C., a Delaware limited liability company, Inland Western
Crossville Main, L.L.C., a Delaware limited liability company 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,
Assignment of Leases and Rents, Security Agreement and Fixture Filing (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.
AGREEMENT:
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 ten (10) days of the date hereof,
seven (7) copies of a revised ALTA survey of the Property, certified to Lender
and its successors and assigns and otherwise in form and substance acceptable to
Lender.
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.
2
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.
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.
3
IN WITNESS WHEREOF the undersigned have executed this Agreement as of the
date and year first written above.
BORROWER:
INLAND WESTERN KILL DEVIL HILLS
CROATAN, L.L.C., a Delaware limited liability
company
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:
----------------------------------
Name:
Title:
